AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 3, 1997
REGISTRATION NO. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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:
JOHN P. McENROE, Esq. BLAIR W. WHITE, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison PIYASENA C. PERERA, Esq.
1285 Avenue of the Americas Pillsbury Madison & Sutro LLP
New York, New York 10019-6064 235 Montgomery Street
San Francisco, California 94104
Approximate date of commencement of proposed sale to the public: from
time to time after this Registration Statement becomes effective.
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If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following 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
------------------------------------------------------------
Proposed Proposed
Title of Each Maximum Maximum
Class of Amount Offering Aggregate Amount of
Securities to to Be Price Offering Registration
Be Registered Registered(1) Per Unit Price(1)(2) Fee
- ----------------------- ----------------- ----------- ------------ ------------
Senior and
Subordinated Debt
Securities............ $500,000,000(3) 100% $500,000,000 $151,515
-----------------------------------------------
(1) Or, if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate offering
price equal to $500,000,000.
(2) Estimated solely for the purposes of determining the amount of the
registration fee.
(3) In addition to the Debt Securities to be registered hereby, this
Registration Statement carries forward $30 million of debt securities
previously registered pursuant to Registration Statement No. 33-65053.
The filing fee previously paid with respect to such debt securities was
$10,344.80.
-----------------------------
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.
THE PROSPECTUS CONTAINED HEREIN IS A COMBINED PROSPECTUS FILED
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ALSO
RELATES TO REGISTRATION STATEMENT NO. 33-65053.
<PAGE>
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
SUBJECT TO COMPLETION, DATED ___________, 1997
$530,000,000
GATX CAPITAL CORPORATION
DEBT SECURITIES
GATX Capital Corporation ("GATX Capital" or the "Company")
from time to time may offer its debt securities consisting of senior debentures,
notes, bonds and/or other evidences of indebtedness ("Senior Securities"),
and/or subordinated debentures, notes, bonds or other evidences of indebtedness
("Subordinated Securities" and, together with the Senior Securities,
collectively the "Debt Securities"). The Debt Securities may be offered in
separate series in amounts, at prices and on terms to be set forth in
supplements to this Prospectus. The Debt Securities may be sold for U.S.
Dollars, one or more foreign currencies or amounts determined by reference to an
index and the principal of and any interest on the Debt Securities may likewise
be payable in U.S. Dollars, one or more foreign currencies or amounts determined
by reference to an index.
The Senior Securities will rank equally with all other
unsubordinated indebtedness of the Company. The Subordinated Securities will be
subordinated and junior in right of payment to certain other indebtedness of the
Company to the extent set forth in the applicable Prospectus Supplement. See
"Description of Debt Securities."
The terms of the Debt Securities, including, where applicable,
the specific designation, aggregate principal amount, currency, denomination,
maturity, premium, rate (which may be fixed or variable) and time of payment of
interest, terms for redemption at the option of the Company or the holder, for
sinking fund payments, if any, for payments of additional amounts, if any, and
the initial public offering price, will be set forth in a Prospectus Supplement
(the "Prospectus Supplement").
The Debt Securities may be sold through underwriting
syndicates led by one or more managing underwriters or through one or more
underwriters acting alone. The Debt Securities may also be sold directly by the
Company or through agents designated from time to time. If any underwriters or
agents are involved in the sale of the Debt Securities, their names, the
principal amount of Debt Securities to be purchased by them and any applicable
fee, commission or discount arrangements with them will be set forth in the
Prospectus Supplement. See "Plan of Distribution."
---------------
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 REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
The date of this Prospectus is ________ __, 1997.
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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 Regional Offices of the Commission located at 500
West Madison Street, Suite 1400, Chicago, Illinois and 7 World Trade Center,
Suite 1300, New York, New York; and at the Public Reference Office of the
Commission at 450 Fifth Street, N.W., Washington D.C. 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. The Company files
electronically with the Commission. The Commission maintains a Web site that
contains reports, proxy and information statements and other information
regarding the registrants that file electronically with the Commission. The
address of the Web site of the Commission is (http://www.sec.gov).
INFORMATION INCORPORATED BY REFERENCE
The following documents, which are on file with Commission,
are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997; and
(c) The Company's Current Reports on Form 8-K dated January
23, 1997, June 10, 1997 and August 27, 1997.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act after the date of this Prospectus and prior
to the termination of the offering of the Debt Securities offered hereby shall
be deemed to be incorporated herein by reference and shall be a part hereof from
the respective dates of filing of such documents.
The Company will furnish without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, on the
written or oral request of such person, a copy of any or all of the documents
incorporated by reference, other than exhibits to such documents (unless such
exhibits are specifically incorporated by reference into the information this
Prospectus incorporates). Requests should be directed to Thomas C. Nord, Esq.,
Vice President and General Counsel, GATX Capital Corporation, Four Embarcadero
Center, San Francisco, California 94111, telephone (415) 955-3200.
Unless otherwise indicated, currency amounts in this
Prospectus and any Prospectus Supplement are stated in United States dollars
("$", "dollars", "U.S. dollars" or "U.S. $").
This Prospectus may not be used to consummate sales of Debt
Securities unless accompanied by a Prospectus Supplement.
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.
THE COMPANY
GATX Capital and its subsidiaries actively invest in a wide
variety of assets. These investments are made through a variety of financing
instruments, primarily leases and loans, either for the Company's own
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account or through partnerships and joint ventures. The Company actively manages
its existing portfolio of investments as well as those of institutional
investors, and several joint ventures and partnerships in which it participates.
Additionally, the Company arranges secured financing for others. The Company
also sells computer network technology equipment and provides technical service
on the equipment it sells.
All common and preferred stock of the Company is owned by GATX
Corporation ("GATX") through a wholly-owned subsidiary. 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, however, it has developed a portfolio of earning
assets diversified across industries and equipment classifications. At June 30,
1997, the Company's investment portfolio of approximately $1.8 billion before
reserves, consists of approximately 34% commercial jet aircraft, 20% railroad
equipment, 10% warehouse and production equipment, 13% information technology
equipment, 12% marine equipment, 4% golf courses and equipment and 7% other
equipment.
Except as expressly indicated or unless the context otherwise
requires, as used herein the "Company" or "GATX Capital" means GATX Capital
Corporation and its consolidated subsidiaries. The Company's principal office is
located at Four Embarcadero Center, San Francisco, California 94111, telephone
(415) 955-3200.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus
Supplement, the net proceeds from the sale of the Debt Securities offered hereby
will be used for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges are computed by
dividing earnings from continuing operations before fixed charges and income
taxes by the fixed charges. For purposes of computation of the ratios, earnings
and fixed charges include those of the Company and all consolidated
subsidiaries, and fixed charges consist of interest and debt expense, and
one-third of rent expense (which approximates the interest factor) of such
companies.
Six Months
Ended June 30 Year Ended December 31,
-------------- ----------------------------------
1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
Ratio of earnings to fixed 2.49 1.84 1.88 1.85 1.86 1.17
charges
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities
sets forth certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture
dated as of July 31, 1989, as supplemented and amended by a Supplemental
Indenture dated as of December 18, 1991 (together, the "Senior Indenture")
between the Company and The Chase Manhattan Bank, as Trustee (the "Senior
Indenture Trustee"). A copy of the Senior Indenture is incorporated by reference
as an exhibit to the Registration Statement of which this Prospectus forms a
part (the "Registration Statement"). The Subordinated Securities are to be
issued under a separate Indenture (the "Subordinated Indenture" and, together
with the Senior
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Indenture, sometimes collectively referred to as the "Indentures"). The trustee
for the Subordinated Indenture will be identified in the relevant Prospectus
Supplement. A copy of the form of the Subordinated Indenture is filed as an
exhibit to the Registration Statement. The following summaries of certain
provisions of the Indentures and the Debt Securities do not purport to be
complete and are qualified in their entirety by reference to the provisions of
the Indentures. Unless otherwise indicated, capitalized terms shall have the
meanings ascribed to them in the Indentures.
General
Debt Securities offered by this Prospectus will be limited to
an aggregate initial public offering price of $500,000,000 or the equivalent
thereof in one or more foreign currencies or composite currencies. The
Indentures provide that Debt Securities in an unlimited amount may be issued
thereunder from time to time in one or more series. The Senior Securities will
rank PARI PASSU with other Senior Indebtedness of the Company. The Subordinated
Securities will be subordinated and junior in right of payment to certain
indebtedness of the Company to the extent set forth in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Debt Securities offered
thereby: (1) the title of the Debt Securities; (2) any limit on the aggregate
principal amount of the Debt Securities; (3) whether any of the Debt Securities
are to be issuable initially in temporary global form and whether any of the
Debt Securities are to be issuable in permanent global form; (4) the date or
dates on which the Debt Securities will mature; (5) the rate or rates at which
the Debt Securities will bear interest, if any, or the formula pursuant to which
such rate or rates shall be determined, and the date or dates from which any
such interest will accrue; (6) the Interest Payment Dates on which any such
interest on the Debt Securities will be payable, and the extent to which, or the
manner in which, any interest payable on a temporary global Debt Security on an
Interest Payment Date will be paid; (7) any mandatory or optional sinking fund
or analogous provisions; (8) each office or agency where, subject to the terms
of the Indenture, the principal of and any premium and interest on the Debt
Securities will be payable and each office or agency where, subject to the terms
of the Indenture, the Debt Securities may be presented for registration of
transfer or exchange; (9) the date, if any, after which and the price or prices
at which the Debt Securities may be redeemed, in whole or in part at the option
of the Company or the Holder, or pursuant to mandatory redemption provisions,
and the other detailed terms and provisions of any such optional or mandatory
redemption provisions; (10) the denominations in which any Debt Securities will
be issuable, if other than denominations of $100,000 and any integral multiple
thereof; (11) any index used to determine the amount of payments of principal of
and any premium and interest on the Debt Securities; (12) the portion of the
principal amount of the Debt Securities, if other than the principal amount
thereof, payable upon acceleration of maturity thereof; (13) the application, if
any, of either or both of the defeasance or covenant defeasance sections of the
Indentures to the Debt Securities; (14) the Person who shall be the Security
Registrar for the Debt Securities, if other than the Trustee, the Person who
shall be the initial Paying Agent and the Person who shall be the depositary;
(15) the terms of subordination applicable to any series of Subordinated
Securities; and (16) any other terms of the Debt Securities not inconsistent
with the provisions of the Indentures. Any such Prospectus Supplement will also
describe any special provisions for the payment of additional amounts with
respect to the Debt Securities of such series.
Except as described in the applicable Prospectus Supplement,
the Indentures do not contain any covenants specifically designed to protect
holders of the Debt Securities against a reduction in creditworthiness of the
Company in the event of a highly leveraged transaction or to prohibit other
transactions which may adversely affect holders of the Debt Securities.
Debt Securities may be issued as Original Issue Discount
Securities to be sold at a substantial discount below their stated principal
amounts. Special United States federal income tax considerations applicable to
Debt Securities issued at an original issue discount will be set forth in a
Prospectus Supplement relating thereto. Special United States tax considerations
applicable to any Debt Securities that are denominated in a currency other than
United States dollars or that use an index to determine the amount of payments
of principal of and any premium and interest on the Debt Securities will be set
forth in a Prospectus Supplement relating thereto.
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Global Securities
So long as the depository's nominee is the registered owner of
a global security, such nominee will be considered the sole owner of the Debt
Securities represented by such global security for all purposes under the
Indentures. Except as provided in the relevant Prospectus Supplement, owners of
beneficial interests in a global security will not be entitled to have Debt
Securities of the series represented by the global security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indentures. Principal of, premium, if any,
and interest on a global security will be payable in the manner described in the
relevant Prospectus Supplement.
Subordination
Subordinated Securities may be issued from time to time in one
or more series under the Subordinated Indenture. The Subordinated Securities
will be subordinated and junior in right of payment to certain other
indebtedness of the Company to the extent set forth in the applicable Prospectus
Supplement.
Certain Covenants of the Company With Respect to Senior Securities
The Senior Securities are not secured by mortgage, pledge or
other lien. The Company covenants that neither it nor any Restricted Subsidiary
(which the Senior 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
Senior 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 Senior 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) various other liens not incurred in connection with the
borrowing of money (including purchase money indebtedness) or the obtaining of
advances or credit. 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 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
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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.
Merger and Consolidation
Each 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 payments of the principal of (and premium, if any) and interest on
the Debt Securities and the performance and observance of all of the covenants
and conditions of such Indenture to be performed or observed by the Company.
Modification and Waiver
Modification and amendment of each 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 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 each 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 each Indenture and waive
compliance by the Company with certain provisions of each Indenture.
Events of Default, Waiver and Notice
An Event of Default with respect to any Debt Security of any
series is defined in each 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 each
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 applicable Prospectus Supplement. Each 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.
Each 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 the
Event of Default resulting from default in the performance of any other of the
covenants or agreements in each Indenture applicable to all Outstanding Debt
Securities under such Indenture and certain events of bankruptcy, insolvency and
reorganization of the Company shall have occurred and be continuing, either the
Trustee or the
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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).
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 applicable Indenture or shall not be
unduly prejudicial to the Holders not taking part in such direction. The Company
is required to furnish to the Trustee under each Indenture annually a statement
as to performance or fulfillment of certain of its obligations under the
applicable Indenture and as to any default in such performance of fulfillment.
Concerning The Trustees
The Chase Manhattan Bank is the Senior Indenture Trustee under
the Senior Indenture. The Senior Indenture Trustee has substantial banking
relationships with the Company, GATX and certain other affiliates of the Company
and is the trustee under the Senior Indenture with respect to other series of
debt securities, under another indenture with the Company and under certain
equipment trust agreements with an affiliate.
The Senior Indenture Trustee and the trustee for the
Subordinated Indenture (collectively, the "Trustee") may from time to time make
loans to the Company and perform other services for the Company in the normal
course of business. Under the provisions of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), upon the occurrence of a default under an
indenture, if a trustee has a conflicting interest (as defined in the Trust
Indenture Act) the trustee must, within 90 days, either eliminate such
conflicting interest or resign. Under the provisions of the Trust Indenture Act,
an indenture trustee shall be deemed to have a conflicting interest, among other
things, if the trustee is a creditor of the obligor. If the trustee fails either
to eliminate the conflicting interest or to resign within 10 days after the
expiration of such 90-day period, the trustee is required to notify security
holders to this effect and any security holder who has been a bona fide holder
for at least six months may petition a court to remove the trustee and to
appoint a successor trustee.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) to one or more
underwriters or dealers for public offering and sale by them and (ii) to
investors directly or through agents. The distribution of the Debt Securities
may be effected from time to time in one or more transactions at a fixed price
or prices (which may be changed from time to time), at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method of
distribution of the Debt Securities offered thereby.
In connection with the sale of the Debt Securities,
underwriters, dealers or agents may receive compensation from the Company or
from purchasers of the Debt Securities for whom they may act as agents, in the
form of discounts, concessions or commissions. The underwriters, dealers or
agents that participate in the distribution of the Debt Securities may be deemed
to be underwriters under the Securities Act of 1933 and any discounts or
commissions received by them and any profit on the resale of the Debt Securities
received by them may be deemed to be underwriting discounts and commissions
thereunder. Any such underwriter, dealer or agent will be identified and any
such compensation received from the Company will be described in the Prospectus
Supplement. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
7
<PAGE>
Under agreements that may be entered into with the Company,
underwriters, dealers and agents may be entitled to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act of 1933, or to contribution with respect to payments which the
underwriters, dealers or agents may be required to make in respect thereof.
Each underwriter, dealer and agent participating in the
distribution of any Debt Securities that are issuable in bearer form will agree
that it will not offer, sell, resell or deliver, directly or indirectly, Debt
Securities in bearer form to persons located in the United States or to United
States persons (other than qualifying financial institutions), in connection
with the original issuance of the Debt Securities.
Certain of the underwriters or agents and their associates may
be customers of, engage in transactions with and perform services for the
Company in the ordinary course of business.
LEGAL OPINIONS
The validity of the Debt Securities is being passed upon for
the Company by Thomas C. Nord, Esq., Vice President and General Counsel, GATX
Capital Corporation. Certain legal matters relating to the Debt Securities will
be passed upon for the underwriters, dealers or agents, if any, by Pillsbury
Madison & Sutro LLP, San Francisco, California. Pillsbury Madison & Sutro LLP
has acted and continues to act as counsel in certain matters for the Company and
certain of its affiliates.
EXPERTS
The consolidated financial statements of the Company appearing
in the Company's Annual Report on Form 10-K for the year ended December 31,
1996, 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.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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.
SEC registration fee........................................ $151,515
Accounting fees and expenses ............................... $ 27,500*
Legal fees and expenses, including Blue Sky fees and
expenses .............................................. $ 50,000*
Printing and engraving fees................................. $ 15,000*
Trustee's fees and expenses ................................ $ 15,000*
Rating agency fees ......................................... $ 50,000*
Miscellaneous............................................... $ 10,000*
---------
Total.................................................. $319,015*
=========
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(a) to this Registration Statement and Section VIII of the
Underwriting Agreement filed as Exhibit 1(b) thereto 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
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.
- -------------
*Estimated
II-1
<PAGE>
Item 16. Exhibits.
Exhibit
Number Description of Exhibit
- ------ ----------------------
1.1 Form of Distribution Agreement.
1.2 Form of Underwriting Agreement.
4.1 Indenture dated as of July 31, 1989 between GATX Capital
Corporation (formerly named GATX Leasing Corporation) and The
Chase Manhattan Bank (incorporated by reference to Exhibit
4(a) to the Company's Form S-3 Registration Statement No.
33-30300).
4.2 Supplemental Indenture dated as of December 18, 1991 between
GATX Capital Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4(b) to the Company's
Form S-3 Registration Statement No. 33-64474).
4.3 Form of Subordinated Indenture.
4.4 Form of Debt Security.
4.5 Form of Medium-Term Note (Fixed Rate).
4.6 Form of Medium-Term Note (Floating Rate).
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
23.1 Consent of Thomas C. Nord, Esq., Vice President and
General Counsel of GATX Capital Corporation (included in
Exhibit 5).
23.2 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.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, 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
II-2
<PAGE>
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; and
(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) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310(a) of the
Trust Indenture Act of 1939 (the "Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
(7) The undersigned registrant hereby undertakes that:
(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
II-3
<PAGE>
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>
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 3rd
day of September, 1997
GATX CAPITAL CORPORATION
(Registrant)
By /s/ Joseph C. Lane
-------------------------------------
Joseph C. Lane, President,
Director and Chief Executive Officer
II-5
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of GATX Capital
Corporation, hereby severally constitute Thomas C. Nord and Richard M. Tinnon,
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.
Signature Title Date
--------- ----- ----
/s/ Ronald H. Zech Chairman of the Board September 3, 1997
- ------------------------
Ronald H. Zech
/s/ Joseph C. Lane President, Chief Executive Officer September 3, 1997
- ------------------------ and Director (Principal Executive
Joseph C. Lane Officer)
/s/ Alan C. Coe Executive Vice President and September 3, 1997
- ------------------------ Director
Alan C. Coe
/s/ Jesse V. Crews Executive Vice President and September 3, 1997
- ------------------------ Director
Jesse V. Crews
/s/ Kathryn G. Jackson Executive Vice President and September 3, 1997
- ------------------------ Director
Kathryn G. Jackson
/s/ David M. Edwards Director September 3, 1997
- ------------------------
David M. Edwards
/s/ David B. Anderson Vice President and Director September 3, 1997
- ------------------------
David B. Anderson
/s/ Michael E. Cromar Vice President and Chief September 3, 1997
- ------------------------ Financial Officer (Principal
Michael E. Cromar Financial Officer)
/s/ Curt F. Glenn Vice President and Controller September 3, 1997
- ------------------------ (Principal Accounting Officer)
Curt F. Glenn
II-6
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description of Exhibit Page
- ------ ---------------------- ----
1.1 Form of Distribution Agreement.
1.2 Form of Underwriting Agreement.
4.1 Indenture dated as of July 31, 1989
between GATX Capital Corporation
(formerly named GATX Leasing
Corporation) and The Chase Manhattan
Bank (incorporated by reference to
Exhibit 4(a) to the Company's Form S-3
Registration Statement No. 33-30300).
4.2 Supplemental Indenture dated as of
December 18, 1991 between GATX Capital
Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit
4(b) to the Company's Form S-3
Registration Statement No. 33-64474).
4.3 Form of Subordinated Indenture.
4.4 Form of Debt Security.
4.5 Form of Medium-Term Note (Fixed Rate).
4.6 Form of Medium-Term Note (Floating
Rate).
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.
23.1 Consent of Thomas C. Nord, Esq., Vice
President and General Counsel of GATX
Capital Corporation (included in Exhibit
5).
23.2 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.
II-7
Exhibit 1.1
GATX CAPITAL CORPORATION
$_____________
Medium-Term Notes, Due from
Nine Months to Thirty Years from Date of Issue
DISTRIBUTION AGREEMENT
[Date]
- -------------------
- -------------------
- -------------------
Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $_________ aggregate principal amount of its Medium-Term Notes
Due from Nine Months to Thirty 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
__________, 1997 (collectively, the "Indenture"), between the Company and The
Chase Manhattan Bank (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.
Subject to the reservation by the Company of the right to sell Notes
directly to investors on its own behalf, the Company hereby appoints you 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 any 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 any 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
<PAGE>
2
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 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)(1)(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 defined to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 filed under the Securities
Act.
<PAGE>
3
(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 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
<PAGE>
4
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 indemnify 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.
(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 their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditor's
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(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.
<PAGE>
(k) There are no legal or governmental proceedings pending or
to the best of the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company 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 so 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.
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
___% and ___% 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
<PAGE>
6
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 principal, whether pursuant to a Term 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 LLP, 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."
<PAGE>
7
(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 amendment 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
<PAGE>
8
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 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 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
<PAGE>
9
incorporated by reference therein and any supplements and amendments thereto as
each Agent may reasonably request.
(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(9)(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; (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.
<PAGE>
10
(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 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
<PAGE>
11
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
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 (or other counsel
to the Company acceptable to the Agents), 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.
<PAGE>
12
(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 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 agents 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
<PAGE>
13
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 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 incorporated by reference in the
Registration Statement and the Prospectus, as amended or
<PAGE>
14
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 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
<PAGE>
15
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 LLP, 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 LLP
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 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
<PAGE>
16
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), 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.
(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
<PAGE>
17
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
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
<PAGE>
18
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
connection 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
<PAGE>
19
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 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
<PAGE>
20
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) (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 ________ at ________________, Attention:
____________ (telecopy number: ________), ; 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)
995-3493).
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 end 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 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 he governed by and
construed in accordance with the internal laws of the State of New York
applicable to
<PAGE>
21
a contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
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.
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.
________________________________
By______________________________
Title:
By______________________________
Title:
<PAGE>
1
EXHIBIT A
MEDIUM TERM NOTES COMMISSION SCHEDULE
Term Commission Rate
%
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to and including 15 years
From 15 years to and including 20 years
From 20 years to and including 30 years
A-1
<PAGE>
1
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 ________ __, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium- Term Notes: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
Purchase price: Interest rate: Base rate:
Settlement date: Amortization Index maturity:
schedule:
Place of delivery: Spread:
Maturity date: Initial interest rates:
Interest payment dates: Initial interest reset date:
Original issue discount Interest reset dates:
provisions:
Redemption provisions: Maximum rate:
Other terms: Minimum rate:
Interest reset period:
Calculation agent:
B-1
<PAGE>
2
[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>
1
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note Administrative Procedures
Medium Term Notes (the "Notes") in the aggregate principal amount of
$500,000,000 are to be offered on a continuing basis by GATX Capital Corporation
(the "Company"). ____________ and ____________ (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 ________, 199_
(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>
2
PART 1: GENERAL
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue 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 thirty 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 To Public: Each Note will be sold at 100% of principal amount
(unless otherwise agreed in a Terms Agreement as
defined in the Distribution Agreement).
C-2
<PAGE>
3
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 his 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 the interest payment at
Maturity will include interest accrued to, but
excluding, such date.
Regular Record Dates: The Regular 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. 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.
C-3
<PAGE>
4
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 Rate Notes: Interest payments on Fixed Rate Notes will be made
semiannually on April 1 and October 1 of each year
and at Maturity.
Floating Rate Notes: Unless otherwise stated in the applicable Pricing
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 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.
C-4
<PAGE>
5
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,
biannual 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
Supplements: If any offer to purchase a Note is accepted by the
Company, 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, and the
Supplemented Prospectuses to which they are
attached (other than those retained for files)
will be destroyed.
C-5
<PAGE>
6
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 _____, 199_ (the
"Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
C-6
<PAGE>
7
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 Accounts, 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 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.
C-7
<PAGE>
8
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 representing 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.
C-8
<PAGE>
9
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 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 staring
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 canceled 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 island to
represent any remaining principal amount of such
Book-Entry Notes (see "Denominations" below).
C-9
<PAGE>
10
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;
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.
C-10
<PAGE>
11
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 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 Interest Payments On the first Business Day of March, June,
and Regular Record Dates: September and December of each year, upon request
by the Company, the Trustee will deliver to the
Company and DTC a written list 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.
C-11
<PAGE>
12
Payments of Principal and
Interest-Payments of Interest
Only: Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the
amount interest to be paid on each Book-Entry Note
on the following Interest Payment Date (other than
an Interest Payment Date 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 end 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 any 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 canceled Note.
C-12
<PAGE>
13
Manner of Payment: The total amount of any principal, premium, if
any, and 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 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 Taxes: The amount of any taxes required under applicable
law to be 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.
C-13
<PAGE>
14
Acceptance and Rejection of The Company shall have the sole right to accept
Offers: offers to purchase Notes from the Company and may
reject any such 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.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by the Company through an
agent, as Agent, will be as follows:
C-14
<PAGE>
15
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.
C-15
<PAGE>
16
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on
the name 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
tine 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
$500,000,000 (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:
C-16
<PAGE>
17
1. The information set forth in 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, 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.
C-17
<PAGE>
18
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 any Note less such Agents 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
amount equal to the initial public offering price
of such Note.
I. Transfers of funds in accordance with SDFS dollar 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.
C-18
<PAGE>
19
Settlement Procedures
Timetable:
For orders of Notes accepted by the Company,
Settlement Procedures "A" through "K" set forth
above shall be completed 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 4:00 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 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.
C-19
<PAGE>
20
If settlement of a Book-Entry Note is rescheduled
or canceled, 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 to Settle: If the Trustee fails to enter a SDFS deliver order
with 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 ash Book-Entry Note and deliver to the
Company a certificate of destruction with respect
to each canceled Note. The CUSIP number assigned
to such Book-Entry Note shall in accordance with
CUSIP Service Bureau procedures, be canceled 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 canceled immediately after
issuance, and the other of which shall represent
the other Notes previously represented the
surrendered Book-Entry Note and shall bear the
CUSIP number of the surrendered Book-Entry Note.
C-20
<PAGE>
21
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 and Exchanges: A Certificated Note may be presented for transfer
or exchange at the corporate trust office of the
Trustee.
C-21
<PAGE>
22
Interest: Each Certificated Note will bear interest in
accordance with its terms.
Payments of Principal and Upon presentment and delivery of a Certificated
Interest: Note, the Trustee will pay the principal amount of
such Note at Maturity 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 Data
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 canceled by the
Trustee. All such canceled Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect
to such destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note 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-22
<PAGE>
23
1. Exact name in which the Note is to be
registered (the "Registered Owners").
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.
C-23
<PAGE>
24
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
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 ___________________,
Attention: __________; in the case of
________________, Attention: __________. 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 nude
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.
C-24
<PAGE>
25
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.
Settlement Procedures For offers accepted by the Company, Settlement
Timetable: Procedures "A" Procedures through "F" set forth
above shall be completed on or before 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 to Settle: In the event that a purchaser of a Certificated
Note from the 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.
C-25
<PAGE>
26
The Trustee, upon receipt of the Certificated Note
front 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-26
Exhibit 1.2
UNDERWRITING AGREEMENT
[DATE]
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Dear Sirs:
We (the "Manager") understand that GATX Capital Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $ aggregate principal
amount of [Title of Securities] (the "Offered Securities"). Subject to the terms
and conditions set forth herein or incorporated by reference herein, the Company
hereby agrees to sell and the underwriters named below (such underwriters being
herein called the "Underwriters") agree to purchase, severally and not jointly,
the principal amounts of such Offered Securities set forth opposite their names
below at ___% of their principal amount plus accrued interest, if any, from ___,
199_ to the date of payment and delivery.
Name Principal Amount
--------------------- $
--------------------- $
--------------
Total: $
========
<PAGE>
GATX Capital Corporation 2
[The aggregate principal amount of Offered Securities to be purchased by
the several Underwriters may be reduced by the aggregate principal amount of
Offered Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Offered Securities [less any Offered
Securities sold pursuant to delayed delivery contracts)]* upon delivery thereof
at [state location] at 10:00 a.m. (New York time) on [state date], or at such
other time, not later than [state date] as shall be designated by the Managers.
The Offered Securities shall have the following terms:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
[other terms]:
[The commission to be paid to the Underwriters in respect of Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be % of the principal amount thereof.]*
All the provisions contained in the document entitled GATX Capital
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
________ __, 1997, a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
us and in addition have an authorized officer send us no later than [state date
and time] by wire, telex or other written means, the following message:
- --------
* To be added only if delayed delivery contracts are contemplated.
<PAGE>
GATX Capital Corporation 3
"We have entered into the Underwriting Agreement dated [insert date]
relating to the Offered Securities referred to therein by signing a copy of the
Underwriting Agreement and returning the same or depositing the same in the mail
to you."
Very truly yours,
[Names of Underwriters]
By --------------------------
Name:
Title:
Acting severally on behalf of
themselves and the several
Underwriters named above
Accepted:
GATX CAPITAL CORPORATION
By ----------------------------
Name:
Title:
<PAGE>
GATX CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
August __, 1997
<PAGE>
From time to time, GATX Capital Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") pursuant to the provisions of an Indenture dated as of July 31,
1989, as supplemented and amended by a Supplemental Indenture dated as of
December 18, 1991, between the Company and The Chase Manhattan Bank, as Trustee
(the "Senior Indenture"), or an Indenture that may be entered into between the
Company and a trustee to be designated (together with the Senior Indenture, the
"Indenture"). The Securities may have varying designations, maturities, rates
and times of payment of interest, if any, selling prices, redemption terms, if
any, and other specific terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with or transmitted for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The term Registration Statement means the registration statement, including the
exhibits thereto, as amended to the date of the Underwriting Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities (the "Prospectus
Supplement"), as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically referring to the Offered Securities together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
<PAGE>
2
II.
The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, complied or will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement
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 statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section II(b)
do not apply (x) to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning the Underwriters furnished to the
Company in writing by the Underwriters expressly for use therein or (y) to that
part of the Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(d) Each subsidiary of the Company that is a "significant subsidiary" as
defined in Rule 405 of Regulation C promulgated pursuant to the Securities Act
(a "Significant Subsidiary") has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
<PAGE>
3
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) This Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, except as rights to
indemnity hereunder or thereunder may be limited under applicable law.
(f) The Senior Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company, is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditor's rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Delayed Delivery Contracts (as defined in Section III below), if
any, have been duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in accordance with
their respective terms except (i) as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting or relating to creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The Offered Securities have been duly authorized and, when the Offered
Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the purchasers
thereof, they will conform to the descriptions thereof in the Prospectus, will
be entitled to the benefits of the Indenture and will be valid and legally
binding obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, considered as one enterprise, or
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and, to the best of the
Company's knowledge, no consent, approval or authorization of any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Offered Securities, except such as
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 Offered Securities.
<PAGE>
4
(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 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.
III.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of the Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
<PAGE>
5
IV.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
V.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of the delivery. The time and date of
such payment and delivery of the Underwriters' Securities are herein referred to
as the Closing Date.
VI.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement
and prior to the Closing Date:
(i) There shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented as of the Closing Date, that, in the reasonable
judgment of the Manager, is material and adverse and that makes it, in the
reasonable judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus,
as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or material
limitation of trading in securities generally on the New York Stock
Exchange; (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 Manager, 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
<PAGE>
6
reasonable judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated by the Prospectus;
(iii) There shall not have 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;
(b) The Manager shall have received on the Closing Date an opinion of
Thomas C. Nord, Vice President and General Counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion of
Pillsbury Madison & Sutro LLP, counsel for the Underwriters, dated the Closing
Date, to the effect set forth in Exhibit B hereto.
(d) The Manager shall have received, on the Closing Date, a certificate,
dated the Closing Date and 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 required by this Agreement to be
performed or satisfied by it at or before such date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(e) The Manager shall have received on the Closing Date, a letter dated
the Closing Date in form and substance satisfactory to the Manager, from the
independent public accountants of the Company, and from such other independent
public accountants as the Manager may reasonably request, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
VII.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) Prior to the termination of the offering of the Offered Securities
pursuant to this Agreement, the Company will not file any Prospectus Supplement
relating to the Offered Securities or any amendment to the Registration
Statement unless the Company has previously furnished to the Manager a copy
thereof for its review and will not file any such proposed amendment or
supplement to which the Manager reasonably objects; provided that the foregoing
requirement shall not apply to any of the Company's periodic
<PAGE>
7
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, which filings the Company will cause to
be timely filed with the Commission and copies of which filings the Company will
cause to be delivered to the Manager promptly after being mailed for filing with
the Commission. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for filing to
the Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise the Manager (a) of the filing of any amendment or
supplement to the Basic Prospectus, (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 Offered Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Securities Act, or until the distribution
of any Offered Securities an Underwriter may own as principal has been
completed, any event occurs or condition exists as a result of which (i) the
Registration Statement or the Prospectus as then amended or supplemented 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 Manager or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Registration Statement or the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify each Underwriter
by telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Offered Securities or any resale thereof and, if so notified by the
Company, each Underwriter shall forthwith suspend such solicitation or resale
and cease using the Prospectus as then amended or supplemented. If the Company
shall decide to amend or supplement the Registration Statement or Prospectus as
then amended or supplemented, it shall so advise the Underwriters 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 Underwriter in such quantities
as such Underwriter may reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to the Underwriters pursuant
to paragraph (f) below and Sections VI(b) and (c) in connection with the
preparation or filing of such amendment or supplement, are satisfactory in all
respects to each Underwriter, upon the filing of such amendment or supplement
with the Commission or effectiveness of an amendment to the Registration
Statement, such Underwriter will resume the solicitation of offers to purchase
Offered Securities or any resale thereof hereunder.
<PAGE>
8
(c) The Company will make generally available to its security holders and
to the Manager as soon as practicable earnings statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering the twelve-month period beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the date of the Underwriting Agreement. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earnings statement shall
be made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(d) The Company will furnish to the Manager without charge two signed
copies of the Registration Statement and all amendments thereto, including
exhibits and any documents incorporated by reference therein, and, during the
period mentioned in Section VII(b) above, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request.
(e) The Company will qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate, provided that the Company shall not be obligated to so qualify the
Offered Securities if such qualification requires it to file any general consent
to service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) During the term of the Underwriting Agreement, the Company shall
furnish to the Manager such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Offered Securities, the Underwriting Agreement and
the performance by the Company of its obligations hereunder or thereunder as the
Manager may from time to time reasonably request and shall notify the Manager
promptly in writing of any downgrading or of its receipt of any notice of (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 Offered Securities is
consummated, pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under securities or Blue Sky laws
<PAGE>
9
in accordance with the provisions of Section VII(e), including filing fees and
the reasonable fees and disbursements of the counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to the
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Memoranda; (vii) any
fees charged by rating agencies for the rating of the Offered Securities; (viii)
any reasonable out-of-pocket expenses incurred by the Underwriters with the
approval of the Company and (ix) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
(h) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the Closing Date, the Company will not, without
the prior consent of the Manager, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company substantially similar to the
Offered Securities (other than (i) the Offered Securities that are to be sold
pursuant to such agreement, (ii) Offered Securities previously agreed to be sold
by the Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in any such agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities 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 (if used
within the period set forth in paragraph (b) of Section VII and 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 Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and any person who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each such Underwriter, but
only with reference to information relating to such Underwriter furnished in
writing by such Underwriter expressly for use in the Registration Statement or
the Prospectus or any amendments or supplements thereto.
<PAGE>
10
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel 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 designated in writing by the Manager, 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 VIII is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein in connection
with any offering of Offered Securities, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or
<PAGE>
11
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Underwriters in
respect thereof, in each case as set forth in the Prospectus, bear to the total
aggregate public offering price of such Offered Securities. The relative fault
of the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section VIII, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
offered and sold to the public through such Underwriter exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or allegedly untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section VIII are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution agreements contained in this Section VIII
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) termination of
this Agreement, (ii) any investigation made by any Underwriter or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
<PAGE>
12
IX.
If any one or more Underwriters shall fail to purchase and pay for any of
the Offered Securities agreed to be purchased by such Underwriter or
Underwriters and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all the
remaining underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Offered Securities set forth in
the Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Offered Securities, and if such nondefaulting Underwriters do not purchase all
the Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section IX, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Manager shall determine in
order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
X.
This Agreement shall be subject to termination in the absolute discretion
of the Manager, by notice given to the Company, if prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange shall been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Manager, impractical to market the Offered Securities.
XI.
If this Agreement shall be terminated by the Underwriters or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement except pursuant to Section IX hereof, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
<PAGE>
13
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to a contract executed and performed in
such State without giving effect to the conflicts of laws principles thereof.
<PAGE>
14
Schedule I
DELAYED DELIVERY CONTRACT
199_
Dear Sirs:
The undersigned hereby agrees to purchase from GATX Capital Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned
$...............
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated , 19__ and Prospectus Supplement dated
, 199_, receipt of copies of which are hereby acknowledged, at a purchase price
of % of the principal amount thereof plus accrued interest and on the further
terms and conditions set forth in this contract. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
--------- $--------- --------------
--------- $--------- --------------
--------- $--------- --------------
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
__________, New York, N.Y. at 10:00 a.m. (New York time) on the Delivery Date,
upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of
<PAGE>
15
Securities to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company shall have sold, and delivery shall have taken place
to the underwriters (the "Underwriters") named in the Prospectus Supplement
referred to above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
thereto and their respective successors, but will not be assignable by either
party hereto without the prior written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York applicable to a contract executed and performed in
such State without giving effect to the conflicts of laws principles thereof.
Yours very truly,
-------------------------------------------
(Purchaser)
By ----------------------------------------
-------------------------------------------
(Title)
-------------------------------------------
(Address)
Accepted:
GATX CAPITAL CORPORATION
By -----------------------------
<PAGE>
16
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
Telephone No.
(Including
Name Area Code) Department
---------------- ----------------- --------------------------
---------------- ----------------- --------------------------
---------------- ----------------- --------------------------
---------------- ----------------- --------------------------
<PAGE>
1
EXHIBIT A
Opinion of Thomas C. Nord, Vice President and General
Counsel for the Company
The opinion of the Vice President and General Counsel for the Company, to
be delivered pursuant to Section VI(b) of the document dated August __, 1997,
and entitled GATX Capital Corporation Underwriting Agreement Standard Provisions
(Debt Securities) shall be to the effect that:
(i) 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.
(ii) 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.
(iii) 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 and assets and to
conduct its business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(iv) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or 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 Company of its obligations
under the Underwriting Agreement, the Indenture and the Offered Securities,
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
<PAGE>
2
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities.
(v) 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.
(vi) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(vii) The Offered Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters [or by institutional investors, if any, pursuant to Delayed
Delivery Contracts], will be valid and binding obligations of the Company in
accordance with their terms.
(viii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
[(ix) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.]
(x) The statements in the Prospectus under the captions "Description of
Debt Securities" and "Description of the [Offered Securities]" and the
statements in the Prospectus incorporated by reference from Item 3 of the
Company's most recent annual report on Form 10-K, insofar as such statements
constitute summaries of the documents or proceedings referred to therein, fairly
present the information called for with respect to such documents and
proceedings.
(xi) Such counsel (1) is of the opinion that each document, if any, filed
pursuant to the Exchange Act (except as to financial statements and schedules,
as to which such counsel need not express any opinion) and incorporated by
reference in the Prospectus 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 and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) each part of the registration statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of
<PAGE>
3
the opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except as to financial statements and schedules and
the Statement of Eligibility and Qualification of the Trustee on Form T-1, as to
which such counsel need not express any belief), 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 and the Statement of Eligibility and Qualification of the Trustee
on Form T-1, as to which such counsel need not express any belief) the
Registration Statement and the Prospectus on the date of the Underwriting
Agreement did not, and the Prospectus, as amended or supplemented, if
applicable, on the Closing Date does not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that such counsel may state that his opinion and
belief is based upon his participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and upon
review and discussion of the contents thereof, but is without independent check
or verification except as otherwise specified, including without limitation, the
independent check or verification of the mathematical computations contained in
the Registration Statement and the Prospectus.
<PAGE>
1
EXHIBIT B
Opinion of Pillsbury Madison & Sutro LLP
Counsel for the Underwriters
The opinion of Pillsbury Madison & Sutro LLP, counsel for the
Underwriters, to be delivered pursuant to Section VI(c) of the document dated
August __, 1997, and entitled GATX Capital Corporation Underwriting Agreement
Standard Provisions (Debt) shall be to the effect that:
(i) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(ii) The Offered Securities, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.
(v) The statements in the Prospectus under the captions "Description of
Debt Securities", "Description of the [Offered Securities]" and ["Underwriting"]
insofar as such statements constitute summaries of the documents referred to
therein, fairly present the information called for with respect to such
documents.
(vi) Such counsel (1) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements and schedules and the Statement of Eligibility and
Qualification of the Trustee on Form T-1, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations thereunder and (2)
believes that (except as to financial statements and schedules and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) the Registration Statement and the
Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that its belief is based upon its participation in the
preparation of the Registration Statement and the Prospectus and any amendments
or
<PAGE>
2
supplements thereto (other than the documents incorporated by reference therein)
and review and discussion of the contents thereof (including documents
incorporated by reference therein), but is without independent check or
verification except as specified.
Exhibit 4.3
================================================================================
FORM OF
SUBORDINATED INDENTURE
BETWEEN
GATX CAPITAL CORPORATION
ISSUER
AND
--------------------------
AS TRUSTEE
----------------
DATED AS OF ___________
----------------
SUBORDINATED DEBT SECURITIES
================================================================================
-1-
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY......................................................1
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION......................................................1
SECTION 1.1 Definitions...............................................1
Act..............................................................2
Additional Amounts...............................................2
Affiliate........................................................2
Authenticating Agent.............................................2
Authorized Newspaper.............................................2
Board of Directors...............................................3
Board Resolution.................................................3
Business Day.....................................................3
Commission.......................................................3
Company..........................................................3
Company Request..................................................3
Company Order....................................................3
Corporate Trust Office...........................................3
Corporation......................................................3
Defaulted Interest...............................................3
Depositary.......................................................3
Dollars..........................................................4
Event of Default.................................................4
Holder...........................................................4
Indenture........................................................4
Interest.........................................................4
Interest Payment Date............................................4
Maturity.........................................................4
Opinion of Counsel...............................................4
Original Issue Discount Security.................................5
Outstanding......................................................5
Paying Agent.....................................................6
Person...........................................................6
Place of Payment.................................................6
Predecessor Security.............................................6
Redemption Date..................................................6
Redemption Price.................................................6
Registered Security..............................................6
Regular Record Date..............................................6
Responsible Officer..............................................7
Security.........................................................7
Securities.......................................................7
Security Register................................................7
Security Registrar...............................................7
Stated Maturity..................................................7
Subsidiary.......................................................7
Trustee..........................................................7
Trust Indenture Act..............................................7
United States....................................................8
-i-
<PAGE>
United States Alien..............................................8
U.S. Government Obligations......................................8
Voting Stock.....................................................8
SECTION 1.2 Compliance Certificates and Opinions......................8
SECTION 1.3 Form of Documents Delivered to Trustee....................9
SECTION 1.4 Acts of Holders......................................... 10
SECTION 1.5 Notices, Etc., to Trustee and Company................... 11
SECTION 1.6 Notice to Holders of Securities; Waiver................. 12
SECTION 1.7 Language of Notices, Etc................................ 12
SECTION 1.8 Conflict with Trust Indenture Act....................... 12
SECTION 1.9 Effect of Headings and Table of Contents
....................................................... 13
SECTION 1.10 Successors and Assigns.................................. 13
SECTION 1.11 Separability Clause..................................... 13
SECTION 1.12 Benefits of Indenture................................... 13
SECTION 1.13 Governing Law........................................... 13
SECTION 1.14 Legal Holidays.......................................... 13
ARTICLE 2 SECURITY FORMS................................................. 14
SECTION 2.1 Forms Generally......................................... 14
SECTION 2.2 Form of Trustee's Certificate of
Authentication.......................................... 14
SECTION 2.3 Securities in Global Form............................... 15
ARTICLE 3 THE SECURITIES................................................. 15
SECTION 3.1 Amount Unlimited: Issuable in Series.................... 15
SECTION 3.2 Denominations........................................... 17
SECTION 3.3 Execution, Authentication, Delivery and
Dating.................................................. 18
SECTION 3.4 Temporary Securities.................................... 20
SECTION 3.5 Registration, Transfer and Exchange..................... 21
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities.............................................. 24
SECTION 3.7 Payment of Interest; Interest Rights
Preserved............................................... 25
SECTION 3.8 Persons Deemed Owners................................... 26
SECTION 3.9 Cancellation............................................ 27
SECTION 3.10 Computation of Interest................................. 27
ARTICLE 4 SATISFACTION AND DISCHARGE..................................... 27
SECTION 4.1 Satisfaction and Discharge of Indenture................. 27
SECTION 4.2 Application of Trust Money.............................. 29
ARTICLE 5 REMEDIES....................................................... 29
SECTION 5.1 Events of Default....................................... 29
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment............................................... 30
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.................................. 32
SECTION 5.4 Trustee May File Proofs of Claim........................ 33
SECTION 5.6 Application of Money Collected.......................... 34
SECTION 5.7 Limitation on Suits..................................... 35
SECTION 5.9 Restoration of Rights and Remedies...................... 36
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<PAGE>
SECTION 5.10 Rights and Remedies Cumulative.......................... 36
SECTION 5.11 Delay or Omission Not Waiver............................ 37
SECTION 5.12 Control by Holders of Securities........................ 37
SECTION 5.13 Waiver of Past Defaults................................. 37
SECTION 5.14 Undertaking for Costs................................... 38
ARTICLE 6 THE TRUSTEE.................................................... 39
SECTION 6.1 Certain Duties and Responsibilities..................... 39
SECTION 6.2 Notice of Defaults...................................... 40
SECTION 6.3 Certain Rights of Trustee............................... 41
SECTION 6.4 Not Responsible for Recitals or Issuance
of Securities. .................... 42
SECTION 6.5 May Hold Securities..................................... 42
SECTION 6.6 Money Held in Trust..................................... 42
SECTION 6.7 Compensation and Reimbursement.......................... 42
SECTION 6.8 Disqualifications; Conflicting Interests
....................................................... 43
SECTION 6.9 Corporate Trustee Required; Eligibility................. 50
SECTION 6.10 Resignation and Removal; Appointment of
Successor............................................... 50
SECTION 6.11 Acceptance of Appointment by Successor.................. 52
SECTION 6.13 Preferential Collection of Claims
Against Company......................................... 54
SECTION 6.14 Appointment of Authenticating Agent..................... 59
ARTICLE 7
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY.................... 61
SECTION 7.1 Company to Furnish Trustee Names and
Addresses of Holders.................................... 61
SECTION 7.2 Preservation of Information;
Communications Holders.................................. 61
SECTION 7.3 Reports by Trustee...................................... 63
SECTION 7.4 Reports by the Company.................................. 65
ARTICLE 8 CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE............... 66
SECTION 8.1 Company May Consolidate, Etc., Only on
Certain Terms........................................... 66
SECTION 8.2 Rights and Duties of Successor
Corporation............................................. 66
SECTION 8.3 Officers' Certificate and Opinion of
Counsel................................................. 67
ARTICLE 9 SUPPLEMENTAL INDENTURES........................................ 67
SECTION 9.1 Supplemental Indentures without Consent
of Holders of Securities or Coupons..................... 67
SECTION 9.2 Supplemental Indentures with Consent of
Holders of Securities................................... 69
SECTION 9.3 Execution of Supplemental Indentures.................... 70
SECTION 9.4 Effect of Supplemental Indentures....................... 70
SECTION 9.5 Conformity with Trust Indenture Act..................... 70
SECTION 9.6 Reference in Securities to Supplemental
Indentures.............................................. 70
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<PAGE>
ARTICLE 10 COVENANTS...................................................... 71
SECTION 10.1 Payment of Principal, Premium, if any,
and Interest............................................ 71
SECTION 10.2 Maintenance of Office or Agency......................... 71
SECTION 10.3 Money for Securities Payments To Be Held
in Trust................................................ 72
SECTION 10.4 Additional Amounts...................................... 73
SECTION 10.5 Corporate Existence..................................... 74
SECTION 10.6 Maintenance of Properties............................... 75
SECTION 10.7 Payment of Taxes and Other Claims....................... 75
SECTION 10.8 Statement by Officers as to Default..................... 75
ARTICLE 11 REDEMPTION OF SECURITIES....................................... 76
SECTION 11.1 Applicability of Article................................ 76
SECTION 11.2 Election to Redeem; Notice to Trustee................... 76
SECTION 11.3 Selection by Trustee of Securities
To Be Redeemed.......................................... 77
SECTION 11.4 Notice of Redemption.................................... 77
SECTION 11.5 Deposit of Redemption Price............................. 78
SECTION 11.6 Securities Payable on Redemption Date................... 79
SECTION 11.7 Securities Redeemed in Part............................. 79
ARTICLE 12 SINKING FUNDS.................................................. 79
SECTION 12.1 Applicability of Article................................ 79
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities......................................... 80
SECTION 12.3 Redemption of Securities for Sinking
Fund.................................................... 81
-iv-
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939
and Indenture
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310 (a)(1)................................. 6.9
(a)(2)................................. 6.9
(a)(3)................................. Not Applicable
(a)(4)................................. Not Applicable
(a)(5)................................. 6.9
(b).................................... 6.8, 6.10
ss.311 (a).................................... 6.13(a), (c)
(b).................................... 6.13(b), (c)
(b)(2)................................. 7.3(a)(ii), 7.3(b)
ss.312 (a).................................... 7.1, 7.2(a)
(b).................................... 7.2(b)
(c).................................... 7.2(c)
ss.313 (a).................................... 7.3(a)
(b)(1)................................. Not Applicable
(b)(2)................................. 7.3(b)
(c).................................... 7.3(c)
(d).................................... 7.3(d)
ss.314 (a).................................... 7.4
(b).................................... Not Applicable
(c)(1)................................. 1.2
(c)(2)................................. 1.2
(c)(3)................................. Not Applicable
(d).................................... Not Applicable
(e).................................... 1.2
ss.315 (a).................................... 6.1(a)
(b).................................... 6.2, 7.3(a)(6)
(c).................................... 6.1(b)
(d).................................... 6.1(c)
(d)(1)................................. 6.1(a)(i), (c)(i)
(d)(2)................................. 6.1(c)(ii)
(d)(3)................................. 6.1(c)(iii)
(e).................................... 5.14
ss.316 (a).................................... 1.1
(a)(1)(A).............................. 5.2, 5.12
(a)(1)(B).............................. 5.13
(a)(2)................................. Not Applicable
(b).................................... 5.8
(c).................................... 1.4(d)
ss.317 (a)(1)................................. 5.3
(a)(2)................................. 5.4
(b).................................... 10.3
ss.318 (a).................................... 1.8
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture
-v-
<PAGE>
THIS SUBORDINATED INDENTURE, dated as of ____________, between GATX
Capital Corporation, a corporation duly organized and existing under the laws of
the State of Delaware, having its principal office at Four Embarcadero Center,
San Francisco, California 94111 (herein called the "Company"), and
____________________, a ____________________, as Trustee hereunder (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
nonconvertible debentures, notes or other evidences of indebtedness (hereinafter
referred to as the "Securities") unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the sum of one
dollar duly paid by the Company to the Trustee, the receipt of which is hereby
acknowledged, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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<PAGE>
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"ACT", when used with respect to any Holders, has the
meaning specified in Section 1.4.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different
-2-
<PAGE>
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"BOARD OF DIRECTORS" means either the Board of Directors of the
Company or the Executive Committee thereof.
"BOARD RESOLUTION" means a copy of a resolution duly certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this Indenture
with respect to any Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is neither a legal holiday nor a day on which banking
institutions or trust companies in such Place of Payment are authorized or
obligated by law to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
President, any Executive Vice President, the Vice President-Finance or the
Treasurer, and by the Secretary, an Assistant Treasurer or an Assistant
Secretary of the Company, and
delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
principally administered (which at the date of this Indenture is located at
____________________________.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITARY" means with respect to the Securities of any series
issuable or issued in whole or in part in global form, the
-3-
<PAGE>
Person designated as Depositary by the Company pursuant to Section 3.1(c) until
a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the "Depositary" with respect to the Securities of that
series.
"DOLLARS" or "$" or any similar reference shall mean currency of the
United States which at the time shall be legal tender for the payment of public
and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"HOLDER", when used with respect to any Security, means in the case
of a Security the Person in whose name the Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INTEREST" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity means interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 10.4, includes such
Additional Amounts.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment
of interest on the applicable Securities.
"MATURITY", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, the President, any Executive Vice President, the Vice President -
Finance or the Treasurer, and by the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 1.2.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
counsel for the Company, or other counsel who shall be reasonably acceptable to
the Trustee. Each such opinion shall include the statements provided in Section
1.2.
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"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued pursuant
to this Indenture which provides for declaration of any amount less than the
principal thereof to be due and payable upon acceleration pursuant to Section
5.2.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for the payment or redemption of which money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities, PROVIDED that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 1.4(a), and, PROVIDED
FURTHER, that Securities owned beneficially by the Company or any other obligor
upon the Securities or any Affiliate (other than officers or directors of the
Company) of the Company or such other obligor, shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so owed
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
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respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor. In the case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all securities
known by the Company to be owned or held by or for the account of any of the
above-described persons; and, subject to the terms of this Indenture, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are outstanding for the purpose of any such determination.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of or (and premium, if any,) interest on any Securities on behalf of
the Company.
"PERSON" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT" when used with respect to the Securities of any
series means the place or place where, subject to the provisions of Section
10.2, the principal of (and premium, if any) and interest on the Securities of
that series are payable as specified as provided pursuant to Section 3.1.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the
provisions of this Indenture.
"REGISTERED SECURITY" means any Security established pursuant to
Section 2.1 and registered in the Security Register.
"REGULAR RECORD DATE" for interest payable on a Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
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"RESPONSIBLE OFFICER" when used with respect to the Trustee means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president") the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer or trust officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITY" or "SECURITIES" has the meaning ascribed to it in the
first paragraph under the caption "Recitals."
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.5.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 3.7.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"SUBSIDIARY" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"Wholly-owned," when used with reference to a Subsidiary, means a Subsidiary of
which all of the outstanding capital stock (except for qualifying shares) is
owned by the Company or by one or more wholly-owned Subsidiaries.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" shall mean each such Person and as used with respect to the
Securities of any series shall mean the Trustee with respect to the Securities
of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 9.5.
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"UNITED STATES" OR "U.S." means the United States of America
(including the states and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"UNITED STATES ALIEN" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, that, in either case under clauses (i) or (ii),
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by any such
custodian for the account of the holder of a depository receipt; PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"VOTING STOCK" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation PROVIDED that, for
the purposes hereof, stock which carries only the right to vote conditionally on
the happening of an event shall not be considered voting stock whether or not
such event shall have happened.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required
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by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to Section 7.4(d)) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which such certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Any certificate, statement or opinion of an officer of the Company
or of counsel may be based insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by a firm of accountants or an
accountant in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company if made in the
manner provided in this Section.
(b) The fact and date of execution by any Person of any instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership of Securities and the principal amount and serial
numbers of the Securities held by an Person, and the date of holding the same,
shall be proved by the Security Register.
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(d) If the Company shall solicit from the Holders of any Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by Board Resolution, fix in advance the
record date for the determination of Holders of Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of Securities of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; PROVIDED that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders of Securities or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office,
Attention:------------, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing, mailed, first-class postage prepaid, or
telecopied and confirmed by mail, first-class postage prepaid, or
delivered by hand or overnight courier, addressed to the Company addressed
to the attention of its Treasurer at the address of its principal
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office specified in the first paragraph of this instrument, or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the terms of this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
such notice shall be sufficiently given to Holders of Securities if in writing
and mailed, first-class postage prepaid, to each Holder of a Security affected
by such event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date and not later than the latest date
prescribed for the giving of such Notice.
In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification to Holders of
Securities as shall be made with the approval of the Trustee, shall constitute a
sufficient notification to such Holders for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.7 LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
SECTION 1.8 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provisions shall
control.
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SECTION 1.9 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.10 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11 SEPARABILITY CLAUSE.
In case any provision in this Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.12 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent and their successors and assigns
hereunder and the Holders of Securities, any benefit or legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.13 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.14 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision in the Securities which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
any Additional Amounts or principal (and premium, if any) need not be made at
such Place of Payment, on or by such day, but may be made on the next succeeding
Business Day at such Place of Payment, with the same force and effect as if made
on the Interest Payment Date, Redemption Date, or at the Stated Maturity and no
interest shall accrue on the amount so payable for the period from and after
such
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Interest Payment Date, Redemption Date, Stated Maturity, as the
case may be.
ARTICLE 2
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities, if any, of each series and Securities in global
form, if any, shall be in the form established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, shall have
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may, consistently herewith, be determined by
the officers of the Company executing such Securities, as evidenced by their
execution of such Secur ities. If the forms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery or such Securities.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's Certificate of Authentication shall be in
substantially the following form:
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This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
______________________, as Trustee
By _______________________________
Authorized Signatory
SECTION 2.3 SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or increased to reflect
the issuance of additional Securities. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons, as shall be specified therein or in the Company Order
delivered to the Trustee pursuant to Section 3.3.
ARTICLE 3
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED: ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto prior
to the issuance of Securities of any series:
(a) the title of the Securities and the series in which
such Securities shall be included;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such title and the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3.6, 9.6 or 11.7);
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(c) whether Securities of the series may be issued in whole or in
part in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or in
part, for the individual Securities represented thereby;
(d) the date or dates on which the principal of such Securities is
payable;
(e) the rate or rates at which such Securities shall bear interest,
if any, or method by which such rate or rates are determined, the date or dates
from which such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest payable
on Registered Securities on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such securities shall be payable in respect
of specified taxes, assessments or other governmental charges withheld or
deducted and, if so, whether the Company has the option to redeem the affected
Securities rather than pay such Additional Amounts, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(f) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the principal of (and premium,
if any) and interest on or Additional Amounts, if any, payable in respect of
such Securities shall be payable, where such Securities may be surrendered for
registration of transfer, where such Securities may be surrendered for exchange
and where notice and demands to or upon the Company, in respect of such
Securities, and this Indenture may be served and where notices to Holders
pursuant to Section 1.6 will be published;
(g) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities may be redeemed, in
whole or in part, at the option of the Company or a Holder;
(h) the obligation, if any, of the Company to redeem such Securities
pursuant to any sinking fund and the period or periods within which, the price
or prices at which and the terms and conditions upon which such Securities shall
be redeemed in whole or in part, pursuant to such obligation;
(i) the denominations in which Securities of the series, if any,
shall be issuable if other than denominations of $100,000 and any integral
multiple thereof;
(j) if other than the principal amount thereof, the portion of the
principal amount of such Securities which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2;
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(k) if the amount of payments of principal of (and premium, if any)
or interest, if any, on, and Additional Amounts in respect of such Securities
may be determined with reference to an index, formula or other method other than
that in which the Securities are stated to be payable, the manner in which such
amounts shall be determined;
(l) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms of such
certificates, documents or conditions;
(m) whether, and under what conditions, Additional Amounts will be
payable to Holders of Securities of such series pursuant to Section 10.4;
(n) any Events of Default with respect to Securities of such series,
if not otherwise set forth herein;
(o) the terms of subordination applicable to any series of
Securities; and
(p) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, redemption
dates and sinking fund dates, if any, and Stated Maturity, the date from which
interest, if any, shall accrue, the amount that shall be payable upon the
declaration of acceleration and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the Securities of any series were established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 3.2 DENOMINATIONS.
Unless other denominations and amounts may from time to time be
fixed by or pursuant to a Board Resolution, the Registered Securities of each
series, if any, shall be issuable in registered
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form without coupons in denominations of $100,000 and any integral multiple
thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, President, Vice President serving as Chief Financial
Officer or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typo graphical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee. Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, executed by
the Company to the Trustee or to its order for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form and terms of such Securities have been
established in conformity with the provision of this Indenture;
(b) that all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, moratorium,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity principles;
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(c) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with; and
(d) as to such other matters as the Trustee may reasonably request;
PROVIDED, HOWEVER, that if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel at the
time of issuance of each Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Securities of such series.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken.
If the Company shall establish pursuant to Section 3.1 that
Securities of a series may be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities in global form that (i) shall represent and shall be
denominated in an authorized aggregate amount equal to the aggregate principal
amount of the Outstanding Securities of such series and tenor to be represented
by one or more Securities in global form, (ii) shall be registered, in the name
of the Depositary for such Security or Securities in global form or the nominee
of such Depositary, (iii) shall be delivered to such Depositary or pursuant to
such Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in 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 Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of the Depositary 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 requested by an authorized representative of the Depositary
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." Each
Depositary designated pursuant to Section 3.1 for a Security in global form
must, at the time of its designation and at all times while it serves as
Depositary, be a
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clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for in Section
2.2 or 6.14 executed by or on behalf of the Trustee by the manual signature of
one of its authorized signatories, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 3.3,
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form without coupons and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their execution
of such Securities. In the case of Securities of any series, such temporary
Securities may be in global form, representing all of the Outstanding Securities
of such series and tenor.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such series
shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained for
such purpose pursuant to Section 10.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of
authorized denominations of the same series containing identical terms and
provisions. Unless otherwise specified as contemplated by Section 3.1 with
respect to a temporary Security in global form, until so exchanged the temporary
Securities of any series shall in all respects be entitled to the
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same benefits under this Indenture as definitive Securities of such series.
SECTION 3.5 REGISTRATION, TRANSFER AND EXCHANGE
With respect to the Securities of each series, if any, the Company shall
cause to be kept, at an office or agency of the Company maintained pursuant to
Section 10.2, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of the Securities of each series
and of transfers of the Securities of each series. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers and exchanges of Securities as herein provided; PROVIDED that the
Company may, from time to time, designate (or change any designation of) any
other Person or Persons to act as Security Registrar or co-Security Registrars
with respect to the Securities of one or more series, with notice to the Trustee
and as provided in Section 1.6 to the Holders. At all reasonable times the
Security Register shall be open for inspection by the Company. In the event that
the Trustee shall not be the Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company maintained for that series pursuant to
Section 10.2, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series of an authorized denomination, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Securities represented
thereby, in definitive form, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series containing identical terms and provisions,
in any authorized denominations, and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or agency of the
Company maintained for that series pursuant to Section 10.2. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and
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deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company, by
Company Order, shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 3.1(c) shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive form in an aggregate principal amount and like terms and
tenor equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual definitive Securities of such series
and of the same terms and tenor, will authenticate and deliver individual
Securities of such series in definitive form in authorized denominations and in
an aggregate principal amount equal to the principal amount of the Security or
Securities in global form representing such series in exchange for such Security
or Securities in global form.
If specified by the Company pursuant to Section 3.1 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Security in global form for such series of Securities in exchange in whole or
in part for individual Securities of such series in definitive form and of like
terms and tenor on such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company Order for the authentication and delivery of individual
definitive Securities of such series, shall authenticate and deliver, without
service charge:
(a) to the Depositary or to each Person specified by such Depositary a new
individual Security or Securities of the same series and of the same tenor, of
authorized denominations, in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Security in global form; and
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(b) to such Depositary a new Security in global form in a denomination
equal to the difference, if any, between the principal amount of the surrendered
Security in global form and the aggregate principal amount of the individual
Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee pursuant to a Company Order will
authenticate and deliver individual Securities in definitive registered form in
authorized denominations.
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be canceled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Security in global form, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Trustee shall deliver such Securities to the persons in
whose names such Securities are so registered or to the Depositary.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange or redemption shall (if so required by the Company or the Security
Registrar for such series of Security presented) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and such Security Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of the selection for redemption of
Securities of that series under Section 11.3 and ending at the close of business
on the day of such
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selection, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except in the case of any Security
to be redeemed in part, the portion thereof not to be redeemed.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms and of
like principal amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security, and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and such new
Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Security, the date of the proposed payment and the Special
Record Date, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities at such Holder's address
as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be published
at least once in a newspaper, customarily published in the English
language on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, but such publication shall not be a
condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such
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Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Interest on Securities of any series that bear interest may be paid
by mailing a check to the address of the person entitled thereto as such address
shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 3.5 and 3.7) interest on and Additional Amounts
with respect to such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Authenticating Agent, any
Paying Agent, the Security Registrar or any Co-Security Registrar 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 Security in
global form 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 relating to such records provided by
the Depositary.
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SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption, repayment,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and any such Securities and Securities surrendered directly to
the Trustee for any purpose shall be canceled promptly by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities, held
by the Trustee shall be destroyed by it unless by a Company Order the Company
directs their return to it.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise contemplated by Section 3.1 for Securities of
any series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange, or replacement of Securities herein
expressly provided for, rights, obligations, duties and immunities of the
Trustee set forth in the last paragraph of this Section and any rights to
receive Additional Amounts, as provided in Section 10.4), and the Trustee, at
the expense of the Company, shall execute proper instruments in form and
substance satisfactory to the Trustee acknowledging satisfaction and discharge
of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6, (B)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
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thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will have become due and payable at their Stated
Maturity within one year, or
(3) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of clause (1), (2) or (3) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge,
or U.S. Government Obligations, maturing as to principal and paying
interest in such amounts and at such times as will insure the
availability of cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest, and any Additional Amounts with respect thereto, to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
In the event there are Securities of two or more series hereunder,
the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so by
Company Order with respect to Securities of all series as to which it is Trustee
and if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
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Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest and Additional Amounts for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on or any Additional
Amounts payable in respect of any of the Securities when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of all or any part of the principal of
(and premium, if any on) any Securities of that series as and when the
same becomes due and payable at Maturity, or default in the deposit of any
sinking fund payment, when and as due by the terms of any of the
Securities of that series; or
(c) default in the performance, or breach, of any covenant, or
agreement of the Company in the Securities of
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that series or this Indenture (other than a covenant or agreement a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, return receipt requested, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 90 consecutive
days; or
(e) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself
or its debts under any bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian, sequestrator or other similar
official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing; or
(f) any other Event of Default provided with respect to Securities
of that series.
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SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in clause (a), (b) or (c) above (if
the Event of Default under clause (c) above is with respect to less than all
series of Securities then outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of such series (each such series voting as a separate class in the
case of an Event of Default under clause (a) or (b) and all such series voting
as one class in the case of an Event of Default under clause (c)), by notice in
writing to the Company (and to the Trustee if given by such Holders), may
declare the entire principal of all Securities of such series, or such lesser
amount as may be provided for in the Securities of that series, and the interest
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable.
If an Event of Default described in clause (c) above with respect to
all series of Outstanding Securities, or any Event of Default described in
clause (d) or (e) above occurs and is continuing, then, and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Outstanding Securities (treated as one
class), by notice in writing to the Company (and to the Trustee if given by such
Holders), may declare the entire principal of all the Outstanding Securities, or
such lesser amount as may be provided for in the Securities, and interest
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, each series voting as a separate class
(or of all Securities, as the case may be, voting as a single class), by written
notice to the Company and the Trustee, may waive all defaults with respect to
such series
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(or with respect to all Securities, as the case may be) and rescind and annual
such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on and any
Additional Amounts payable in respect of all Securities of that
series (or upon all the Securities, as the case may be),
(ii) the principal of (and premium, if any, on) any Securities
of that series (or upon all the Securities, as the case may be)
which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates borne by
or provided for in such Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities, other than the
non-payment of the principal of Securities which has become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal (or premium, if
any, on) of any Security at its Maturity, or, in the case of redemption of
any Security at the option of the Company or a Holder, its Redemption
Date,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts, if any, with interest upon the overdue principal (and premium, if any)
and to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest or any Additional Amounts, at the rate or
rates borne or provided by such Securities, and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or
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agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or either of
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount or such lesser
amount as may be provided for in the Securities of that series, of
principal (and premium, if any) and interest and any Additional Amounts
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities and coupons allowed
in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders of
Securities, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on
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behalf of any Holder of a Security any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security in any such proceeding.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUR POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which judgment
has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest or any Additional Amounts, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
6.7; and
Second: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest and any
Additional Amounts payable in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest and Additional Amounts,
respectively; and
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Third: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
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SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) interest on and any Additional Amounts in respect of such
Security on the respective Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date), and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 5.7 and except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities.
SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
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
Securities of such series, PROVIDED that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) such direction is not unduly prejudicial to the rights of other
Holders of Securities of such series.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
Prior to a declaration of acceleration of the Maturity of the
Securities of any series as provided in Section 5.2, the Holders of not less
than a majority in principal amount of Outstanding Securities of any series
(each series voting as a separate class) may on behalf of the Holders of all the
Securities of such series waive any past default or Event of Default described
in clause (c) of Section 5.1 which relates to less than all of the series of
Outstanding Securities, or the Holders of not less than a majority in principal
amount of all Outstanding Securities (voting as one class) may on behalf of all
Holders waive any past default or Event of Default described in said clause (c)
(which relates to all series of
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Outstanding Securities) or in clause (d) or (e) of Section 5.1, except a default
(a) in the payment of the principal of (and premium, if any) or interest on or
Additional Amounts payable in respect of any Security of such series, or (b) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holders of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit insti tuted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder of
any Security or coupon for the enforcement of the payment of the principal of or
interest on any Security or the payment of any coupon on or after the respective
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or interest on any overdue
principal of any Security.
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ARTICLE 6
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of
Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, EXCEPT that
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (and premium, if any)
or interest on, or any Additional Amounts with respect to, any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and responsible officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Holders of Securities of such series; and PROVIDED FURTHER, that in the case of
any default of the character specified in Section 5.1(c) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
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SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other evidence
of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security to the Trustee for authentication and
delivery pursuant to Section 3.3 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts, or matters as it may see fit, and, if the Trustee, shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney; and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee or any Authenticating Agent makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder
need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in
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accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without negligence or
bad faith on their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending themselves against any claim or liability in connection
with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on or any Additional Amounts with respect to the Securities.
SECTION 6.8 DISQUALIFICATIONS; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, and if
the Event of Default to which such conflicting interest relates has not been
cured or duly waived or otherwise eliminated before the end of such 90-day
period, the Trustee shall either eliminate such conflicting interest or, except
as otherwise provided in this Section, resign in the manner specified in Section
6.10, such resignation to become effective upon the appointment of a successor
trustee and such successor's acceptance of such appointment, and the Company
shall take prompt steps to appoint a successor in accordance with Section 6.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, the Trustee shall, within ten days
after the expiration of such 90-day period, transmit, in the manner and to the
extent provided in Section 7.3(c) notice of such failure.
(c) Subject to the provisions of Section 5.14 of this Indenture,
unless the Trustee's duty to resign is stayed as provided in subsection (g) of
this Section, any Holder who has been a bona fide Holder of Securities for six
months may, on such Holder's behalf and on behalf of all other Holders similarly
situated, petition any court of competent jurisdiction for the removal of such
Trustee and the appointment of a successor, if such Trustee fails after written
request thereof by such Holder to comply with the provisions of subsection (a)
of this Section.
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(d) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series, if an
Event of Default has occurred with respect to the Securities of such series and:
(i) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only collateral
consists of Securities issued under this Indenture, PROVIDED THAT there
shall be excluded from the operation of this paragraph (A) this Indenture
with respect to the Securities of any series other than that series, and
(B) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(1) this Indenture and such other indenture or indentures (and
all series of securities issued thereunder) are wholly unsecured and
rank equally, and such other indenture or indentures (and such
series) are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust Indenture
Act that differences exist between the provisions of this Indenture
with respect to Securities of that series and one or more other
series or the provisions of such other indenture or indentures (or
such series), which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as
such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures, or
(2) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Securities
of that series and such other series under such other indenture or
indentures;
(ii) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
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(iii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(iv) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or
both, of the Trustee and a director or an executive officer, or both, of
the Company but may not be at the same time an executive officer of both
the Trustee and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or both, of the
Trustee and a director of the Company; and (iii) the Trustee may be
designated by the Company or by any underwriter for the Company to act in
the capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this Subsection, to act as
trustee, whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner, or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such Persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any Person
who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or
indirect common control with, the Company;
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(viii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), 10% or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50% or more of the
voting securities of the Company;
(ix) the Trustee owns, on the date of the occurrence of such Event
of Default (exclusive of any period of grace or requirement of notice) or
any anniversary thereof while such Event of Default remains outstanding,
in the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% of more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a specified
percentage of which would have constituted conflicting interest under
paragraph (vi), (vii) or (viii) of this Subsection. As to any such
Securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after the
date of the occurrence of any such Event of Default and annually in each
succeeding year that the Securities or any series thereof remain in
default, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such dates. If the Company
fails to make payment in full of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any of the
Securities when and as the same becomes due and payable, and such failure
continues for 30 days thereafter, the Trustee shall make a prompt check of
its holdings of such securities in any of the above-mentioned capacities
as of the date of the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for
the purposes of paragraphs (vi), (vii) and (viii) of this Subsection; or
(x) except under the circumstances described in paragraphs (i),
(iii), (iv), (v) or (vi) of Section 6.13(b), the Trustee shall be or
become a creditor of the Company.
For the purposes of paragraph (i) of this Subsection, and of Section
5 of this Indenture, the term "series of securities" or "series" means a series,
class, or group of securities issuable under an indenture pursuant to whose
terms holders of one such series may vote to direct the trustee, or otherwise
take action
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pursuant to a vote of such holders, separately from holders of another such
series; PROVIDED, that "series of securities" or "series" shall not include any
series of securities issuable under an indenture if all such series rank equally
and are wholly unsecured.
The specification of percentages in paragraphs (v) to (ix),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (iii) or (vii) of this Subsection.
For the purposes of paragraphs (vi), (vii), (viii) and (ix) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent, or depositary, or in any similar representative capacity.
(e) For the purposes of this Section:
(i) The term "underwriter", when used with reference to the Company,
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(ii) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
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(iii) The term "person" means an individual, a corporation,
partnership, an association, a joint stock company, a trust, an unincorporated
organization, or a government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by a security.
(iv) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or management of
the affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(v) The term "Company" means any obliger upon the Securities.
(vi) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the treasurer of
a corporation, and any individual customarily performing similar functions with
respect to any organization whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(f) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(i) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(ii) A specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the number
of shares if relating to capital shares, and the number of units if
relating to any other kind of security.
(iv) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
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(1) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as to
principal or interest or otherwise:
(3) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(4) securities held in escrow if placed in escrow by the
issuer thereof; PROVIDED, HOWEVER, that any voting securities of an
issuer shall be deemed outstanding if any person other than the
issuer is entitled to exercise the voting rights thereof.
(v) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; PROVIDED, HOWEVER, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and PROVIDED, FURTHER, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(g) Except in the case of a default in the payment of the principal
of or the interest on any Securities, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that
(i) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of such series of Securities. The filing of
such an application shall automatically stay the performance of the duty
to resign until the Commission orders otherwise.
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Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such
appointment.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
corporation organized and doing business under the laws of the United States of
America, any State or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor on the Securities or Affiliate of such obligor shall serve as Trustee.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8(a) after
written request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months, or
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(ii) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder of a Security who has been a bona fide Holder of a Security of any series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees. Such court may thereupon, after such notice, if
any, as it may deem proper, remove the
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Trustee and appoint a successor trustee with respect to such Securities.
(iv) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee and supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner required by Section 6.11, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, remove the
Trustee and appoint a successor trustee with respect to such Securities.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first class mail, postage prepaid, to
the Holders of Securities, if any, of such series as their names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of
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such successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture other than as hereinafter expressly set
forth, and each such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 MERGER, CPNVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in Subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in
Subsection (c) of this Section):
(i) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or dispo sition of any property described in
paragraph (ii) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default;
and
(ii) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(i) to retain for its own account (i) pay ments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorgan
ization pursuant to the Federal Bankruptcy Code or applicable State law;
(ii) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(iii) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within three months; or
(iv) to receive payment on any claim referred to in paragraph (ii)
or (iii), against the release of any property held as security for such
claim as provided in paragraph (ii) or (iii), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (ii), (iii) and (iv) immediately
above, property substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose of
repaying or refunding any pre-existing claim of the Trustee as such creditor,
such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Holders of Securities and the holders of other
indenture securities in such manner that the Trustee, the Holders of Securities
and the holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in
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proceedings for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders of
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Code or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee and the Holders of Securities
and the holders of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to
give to the provisions of this paragraph due consideration in determining the
fairness of the distributions to be made to the Trustee and the Holders of
Securities and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning
of such three-month period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which would
have given rise
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to the obligation to account, if such Trustee had continued as Trustee,
occurred after the beginning of such three-month period; and
(2) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898, or
any amendment thereto enacted prior to November 6, 1978, all references to
periods of three months shall be deemed to be references to periods of four
months.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(i) the ownership or acquisition of secur ities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(ii) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders of Securities at
the time and in the manner provided in this Indenture;
(iii) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(iv) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of
this Section;
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(v) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(vi) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in Subsection (c)
of this Section.
(c) For the purpose of this Section only:
(i) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due
and payable;
(ii) the term "other indenture securities" means securities upon
which the Company is an obliger outstanding under any other indenture (i)
under which indenture and as to which securities the Trustee is also
trustee, (ii) which contains provisions substantially similar to the
provisions of this Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property held in such special
account;
(iii) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(iv) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of
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the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation;
(v) the term "Company" means any obligor upon the Securities; and
(vi) the term "Federal Bankruptcy Code" means the Bankruptcy Code of
1978, as amended, or Title 11 of the United States Code.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue or exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less that $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of
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this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities, if any, of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to
each Authenticating Agent.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
[NAME OF TRUSTEE]
------------------------------------
As Trustee
By --------------------------------
As Authenticating Agent
By --------------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not comply with Section 1.2) by the Company, shall appoint in accordance with
this Section 6.14 an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE 7
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than June 15 and December 15 each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of the June 1
and December 1 preceding such June 15 or December 15, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of
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any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished, PROVIDED, HOWEVER,
that, so long as the Trustee is the Security Registrar, no such list shall
be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities (i)
contained in the most recent list furnished to the Trustee for each series as
provided in Section 7.1, and (ii) received by the Trustee for each series in the
capacity of Security Registrar if the Trustee is then acting in such capacity.
The Trustee may destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities whose name and address appears in
the information preserved at the
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time by the Trustee in accordance with Section 7.2(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 7.2(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 7.2(b).
SECTION 7.3 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year 1990, the Trustee shall transmit by mail to all Holders of Securities, as
provided in Subsection (c) of this Section, a brief report dated as of such May
15 with respect to any of the following events which may have occurred within
the previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
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(ii) the creation of or any material change to a relationship
specified in paragraph (i) through (x) of Section 6.8(d);
(iii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(iv) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obliger on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(ii),
(iii), (iv) or (vi);
(v) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(vi) any change to any release, or release and substitution, of
property subject to the lien of the indenture (and the consideration
therefor, if any) which it has not previously reported;
(vii) any additional issue of Securities which the Trustee has not
previously reported; and
(viii) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 6.2, provided however, that if the Trust Indenture
Act is amended subsequent to the date hereof to eliminate the requirement
of the Trustee's brief report, the report required by this Section need
not be transmitted to any Holders.
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(b) The Trustee shall transmit by mail to all Holders of Securities, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
collected by it as Trustee, and which it has not previously reported pursuant to
this subsection, except that the Trustee shall not be required (but may elect)
to report such advances if such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section and Section 6.2
shall be transmitted by mail:
(i) to all Holders of Securities, as the names and addresses of such
Holders appear in the Security Register; and
(ii) except in the case of reports pursuant to subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 7.2(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with any stock
exchange upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 7.4 REPORTS BY THE COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
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Commission pursuant to Section 13 or Section 15 (d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(c) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 7.3(c) with respect
to reports pursuant to Section 2.3(a), such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants of this Indenture (which compliance
shall be determined without regard to any period of grace or requirement of
notice as provided in this Indenture). Such certificate need not comply with
Section 1.2 of this Indenture.
ARTICLE 8
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Notwithstanding anything contained herein or in any of the
Securities, the Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with
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or into any other corporation, provided that in any such case, either the
Company shall be the continuing corporation, or the successor corporation shall
be a corporation organized and existing under the laws of the United States of
America or a State thereof and such successor corporation shall expressly assume
the due and punctual payment of the principal of (and premium, if any), any
interest on, and any Additional Amounts payable pursuant to Section 10.4 with
respect to, all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company by supplemental Indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
successor corporation.
SECTION 8.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and the
predecessor corporation shall be relieved of any further obligation under this
Indenture and the Securities. Such successor corporation thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
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SECTION 8.3 OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 6.1 and 6.3, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance, and any
such assumption and any such supplemental indenture, if any, complies with the
provisions of this Article and that all conditions precedent herein provided
relating to such transactions have been complied with.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF
SECURITIES OR COUPONS.
Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(c) to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Securities or to permit or facilitate
the issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect or;
(d) to change or eliminate any provision of this Indenture, PROVIDED
that any such change or elimination (i) shall become effective only when
there is no Security
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Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision
or (ii) shall not apply to any Security Outstanding; or
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(g) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect
the interest of the Holders of Securities of any series in any material
respect; or
(h) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(i) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(j) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act, provided such action shall not adversely affect
the interest of the Holders of the Securities of any series or any
appurtenant coupons in any material respects; or
(k) to secure the Securities pursuant to Section 10.6.
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SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF SECURITIES.
With the written consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent or affirmative vote of the
Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
or the rate of interest payable thereon or any Additional Amounts payable
in respect thereof, or any premium payable upon the redemption thereof, or
change the obligation of the Company to pay Additional Amounts pursuant to
Section 10.4 (except as contemplated by Section 8.1(i) and permitted by
Section 9.1(i)), or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.2 or change the
Place of Payment where, or change the coin or currency in which any
Security or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any payment in respect of any
Security on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(c) modify any of the provisions of this Section or Section 5.13, or
Section 10.7 except to increase any percentage contained herein or therein
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; or
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(d) adversely affect the right to repayment, if any, of Securities
of any series at the option of the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE 10
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on and any Additional Amounts payable in
respect of the Securities of that series. The Company will deposit or cause to
be deposited with the Trustee or a Paying Agent, one Business Day prior to the
Stated Maturity of any Security or one Business Day prior to the due date for
any installment of interest, all payments so due, which payments shall be in
immediately available funds on the date of such Stated Maturity or due date, as
the case may be.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or
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served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations: PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise set forth in a Board Resolution or indenture
supplemental hereto with respect to a series of Securities, the Company hereby
designates as the Place of Payment for each series of Securities the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as the Company's office or agency for each of such
purposes in such city.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall act as a Paying Agent, it will, on or before
each due date of the principal of or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal of (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any) or interest on any Securities, deposit with a Paying Agent
a sum sufficient to pay the principal of (and premium, if any) or interest so
becoming due, such sum to be held for the benefit of the Persons entitled to
such principal (and premium, if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with
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the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities
of that series; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment or to be
mailed to the Holders, or both, notice that such money remains unclaimed and
that, after a date specified therein,
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which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 10.4 ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any series
Additional Amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest on, or in respect of, any Security of any series or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in the terms of such Security and this Section to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made, and at least 10 days prior to each date of payment of
principal (and premium, if any) or interest, if there has been any change with
respect to the matters set forth in the below mentioned Officers' Certificate),
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Security and
the first paragraph of this Section. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or
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<PAGE>
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 10.5 CORPORATE EXISTENCE.
Subject to Article Seven, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
if the board of directors, or the principal executive officer and principal
financial officer of the Company jointly, determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.6 MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.7 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will promptly pay or discharge, or cause to be paid or
discharged, before the same may become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property, real or personal, or upon any part
thereof, of the Company or any Subsidiary, and (2) all claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge
upon the property of the Company or any Subsidiary;
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<PAGE>
PROVIDED, HOWEVER, that neither the Company nor any Subsidiary shall be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (i) whose amount, applicability or validity is being contested
in good faith by appropriate proceedings, or (ii) if the effect of such failure
to pay or discharge would not have a material adverse effect on the assets,
business, operations, properties or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole.
SECTION 10.8 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee within 120 days after the
end of each fiscal year of the Company an Officers' Certificate stating that in
the course of performance by the signers of their duties as such officers of the
Company they would normally obtain knowledge of whether any default exists in
the performance and observance of any of the terms, provisions and conditions of
this Indenture and whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture. Such Certificate shall further
state, as to each such officer signing such Certificate, to the best of the
knowledge of such officer, as of the date of such Officers' Certificate, (a)
whether any such default exists, (b) whether the Company during the preceding
fiscal year kept, observed, performed and fulfilled each and every covenant and
obligation of the Company under this Indenture and (c) whether there was any
default in the performance and observance of any of the terms, provisions or
conditions of this Indenture during such preceding fiscal year. If the officers
signing the Certificate know of such a default, whether then existing or
occurring during such preceding fiscal year, the Officers' Certificate shall
describe such default and its status with particularity. The Company shall also
promptly notify the Trustee if the Company's fiscal year is changed so that the
end thereof is on any date other than the then current fiscal year end date.
The Company will deliver to the Trustee, forthwith upon becoming
aware of any default in the performance or observance of any covenant, agreement
or condition contained in this Indenture, or any Event of Default, an Officers'
Certificate specifying with particularity such default or Event of Default and
further stating what action the Company has taken, is taking or proposes to take
with respect thereto.
Any notice required to be given under this Section shall be
delivered to the Trustee at its Corporate Trust Office.
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<PAGE>
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.1 for Securities of
any series) in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, the
principal amount Securities of such series to be redeemed and the relevant terms
of the Securities to be redeemed. The election of a Holder to redeem any
Securities shall be evidenced by a writing by a Holder sent to the Trustee and
the Company at least 60 days prior to the Redemption Date fixed by the Holder in
such notice (unless a shorter notice period shall be satisfactory to the
Trustee). Such notice shall notify the Trustee and the Company of such
Redemption Date, the principal amount of Securities of such series to be
redeemed and any relevant terms of the Securities of such series to be redeemed.
SECTION 11.3 SELECTION OF TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series having the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Securities
of such series
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<PAGE>
of a denomination larger than the minimum authorized denomination for
Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
SECTION 11.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 1.6, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed
(which shorter period shall be acceptable to the Trustee), to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof. Any notice that is mailed to the Holder of any
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, and accrued interest, if any,
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security of Securities of
authorized
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<PAGE>
denominations for the principal amount thereof remaining
unredeemed,
(e) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(f) the Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price, and
(g) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on and any
Additional amounts with respect thereto, all the Securities which are to be
redeemed on that date.
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given by the Holder to the Company and
Trustee pursuant to Section 11.2 or to the Holder by the Company or the Trustee
pursuant to Section 11.4, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any Security for redemption in
accordance with said notice, such
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<PAGE>
Security shall be paid by the Company at the Redemption Price, together with
accrued and unpaid interest (and any Additional Amounts) to the Redemption Date;
PROVIDED FURTHER that installments of interest on Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such on
the relevant Record Date according to their terms and the provisions of Section
3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal amount (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities of the same series, containing identical terms and
provisions, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 3.1 for Securities of such series or as otherwise
permitted or required by any form of Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred
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<PAGE>
to as a "mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of such series is herein
referred to as an "optional sinking fund payment." If provided for by the terms
of Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of a series to be made pursuant to the
terms of such Securities as provided for by the terms of such series, (1)
deliver Outstanding Securities of such series (other than any of such Securities
previously called for redemption) theretofore purchased or receive credit for
Securities (not previously so credited) theretofore purchased by the Company and
delivered to the Trustee for cancellation pursuant to Section 3.9, and (2) apply
as a credit Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such series of Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, PROVIDED that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If, as a result of the delivery or
credit of Securities of any series in lieu of cash payments pursuant to this
Section 12.2, the principal amount of Securities of such series to be redeemed
in order to exhaust the aforesaid cash payment shall be less than $100,000, the
Trustee need not call Securities of such series for redemption, except upon
Company Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities of that series purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
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<PAGE>
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
* * * * *
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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GATX CAPITAL CORPORATION
By -------------------------------------
Name:
Title:
[SEAL]
Attest:
- ----------------------------------
Name:
Title:
[TRUSTEE]
By -------------------------------------
Name:
Title:
[SEAL]
Attest:
- ----------------------------------
Name:
Title:
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<PAGE>
STATE OF CALIFORNIA )
: ss.:
COUNTY OF SAN FRANCISCO )
On the _____________________________, 199_, before me personally
came ________________, to me known, who, being by me duly sworn, did depose and
say that he is __________________ of GATX CAPITAL Corporation, one of the
corporations 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 corporate 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.
[NOTARIAL SEAL]
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _____________________________, 199_, before me personally
came ________________, to me known, who, being by me duly sworn, did depose and
say that he is __________________ of _______________, one of the corporations
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 corporate
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.
[NOTARIAL SEAL]
Notary Public
-86-
Exhibit 4.4
FORM OF DEBT SECURITY
[FACE OF SECURITY]
GATX CAPITAL CORPORATION
[If applicable, insert--FOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF THIS
SECURITY IS __% OF ITS PRINCIPAL AMOUNT AT STATED MATURITY SET FORTH BELOW (ITS
"PRINCIPAL AMOUNT"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS __% OF ITS
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ___% AND THE ISSUE DATE IS
_______________]
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT--THIS NOTE IS A GLOBAL
SECURITY. IT IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES HEREINAFTER DESCRIBED AND 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 A NOMINEE OF THE DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[Unless this Note 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
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, a Delaware Corporation (herein called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to [If the Security is to be in registered form, insert-- , or registered
assigns] [If the Security is to be in bearer form, insert-- the bearer hereof
upon surrender], the principal sum of _______ Dollars on
- ----------.
[If the Security is to bear interest at a fixed rate prior to
maturity, insert--, and to pay interest thereon from _________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for semi-annually on ___________ and ___________ in each year commencing
__________, _____, at the rate of ___% per annum until the principal hereof is
paid or made available for payment.]
[If the Security is to bear interest at an adjustable rate prior to
Maturity, insert -- , and to pay interest thereon from ______ or from the most
recent Interest Payment Date
<PAGE>
2
to which interest has been paid or duly provided for, at a rate per annum
determined as provided below, semi-annually on _______ and _______ in each year,
commencing _____________, _____, until the principal hereof is paid or made
available for payment.]
[Interest on the Securities is payable at the rate of __% per annum
from __________ through __________, and for each __ month period from
__________, through __________, at a rate per annum (rounded to the nearest five
hundredths of a percentage point) equal to __% of the Year Treasury Rate (as
defined below) or the Alternate Treasury Rate (as defined on the reverse side
hereof), as the case may be, or such higher rate as may be established by the
Company as set forth below.]
[The "Year Treasury Rate" applicable to any _____ month period
commencing __________, __________, or __________ shall be the most recent Weekly
Treasury Rates for constant maturities of years published during the period of
the ten calendar days ending on the _________ (or, if such is not a Business
Day, the next preceding Business Day) next preceding such _________. "Weekly
Treasury Rates" means the weekly average yield to maturity values adjusted to a
constant maturity of a fixed number of years as read from the yield curves of
the most actively traded marketable U.S. Treasury fixed interest rate securities
constructed daily by the U.S. Treasury Department as published by the Federal
Reserve Board or any Federal Reserve Bank or by any United States Department or
agency. In ________, ________, Weekly Treasury Rates were published by the
Federal Reserve Board weekly in "Statistical Release H.15 (519), Selected
Interest Rates" as "U.S.
Government securities--Treasury constant maturities."]
[If the Trustee determines in good faith that for any reason the
Weekly Treasury Rates for constant maturities of ________ years are not
published as provided above during the ten calendar day period specified above
preceding the __________ on which any such ________ month period commences,
interest on the Securities for such ________ month period will be based on the
Alternate Treasury Rate determined as of such ___________ (or, if such is not a
Business Day, the next preceding Business Day) in the manner set forth on the
reverse hereof. As promptly as practicable, the Trustee shall calculate or cause
to be calculated the year Treasury Rate or the Alternate Treasury Rate
applicable to each ________ month period. The determination of such Rate shall
be confirmed in writing by independent accountants of recognized standing
selected by the Trustee and such Rate as so confirmed shall be binding upon the
Company and the Holders.]
[If the Trustee determines in good faith that for any reason neither
the Year Treasury Rate nor the Alternate Treasury Rate can be determined for any
________ month period, then the rate of interest shall be determined by the
Company. In addition, the Company may elect a higher rate of interest for the
Securities than that calculated on the basis of the Year Treasury Rate or the
Alternate Treasury Rate. The Company shall make such interest rate
determinations or elections by delivery to the Trustee of an Officers'
Certificate on or before the _________ preceding commencement of the ________
month period in which such interest rate will apply.]
[After the interest rate for any ________ month period has been
determined, the Trustee will cause such rate to be published in an Authorized
Newspaper in, on or about each __________ prior to the commencement of the
________ month period to which it applies. The Company will cause notice of such
rate of interest to be enclosed with the
<PAGE>
3
interest payment checks next mailed to the Holders of the Securities after such
rate has been determined.]
[If the Security is to bear interest at a floating rate above the
secondary market rate for T-Bills or the auction rate for such Bills, insert--,
and to pay interest thereon, to the extent permitted by law, at the rate of [___
basis points above] [(____) % of] the weighted average per annum [discount rate]
[bond yield equivalent rate] for direct obligations of the United States with a
maturity of ________ computed on the basis of a [365 or 366-day year, as the
case may be,] [360-day year] [and applied on a daily basis] (the "________
Treasury Bill Rate") [based on results of the most recent auction of] [set in
the secondary market for] ________________ [month] [day] U.S. Treasury Bills as
published by the Board of Governors of the Federal Reserve System or (if not so
published) as reported by the Department of the Treasury or any Federal Reserve
Bank or the United States Government department or agency. [The interest rate
will be adjusted on the calendar day following each auction of ________________
[month] [day] U.S. Treasury Bills.] [The interest rate will be adjusted on the
calendar day following each auction of ________ [month] [day] U.S. Treasury
Bills.] [The interest rate in effect for the period from ________ through the
date of the first ________ auction after such date shall be based upon the
results of the most recent ________ auction prior to such date; and the interest
rate in effect for the ________ days immediately prior to Maturity shall be
based upon the results of the most recent ________ auction held prior to the
days preceding Maturity.]
[If the Security is to bear interest at a floating rate, insert--In
the event that the [________] day [___] Treasury Bill Rate ceases to be
published or reported as provided above, then the rate of interest in effect at
the time of the last such publication or report will remain in effect until such
time, if any, as such Treasury Bill Rate shall again be so published or
reported.]
[The interest rate applicable to each ________ will be determined as
promptly as practicable by the Company as described herein and the Company will
furnish the Trustee with an Officers' Certificate setting forth the interest
rate applicable to each ________ promptly after such rate has been determined.]
[If the Security is to bear interest prior to Maturity, insert--The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security is registered at the close of business on the ________ or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.]
[If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for.]
Payment of the principal of (and premium, if any, on) and [any such]
interest on this Security will be made at the office or agency of the Company
maintained for that
<PAGE>
4
purpose in ________, in such coin or currency of [the United States of America]
as at the time of payment is legal tender for payment of public and private
debts [; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture referred to on the
reverse hereof, this Security 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
By:______________________________
[Title]
Attest and Countersign:
Secretary
<PAGE>
1
[Form of Reverse of Security.]
GATX CAPITAL CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of _______________ (herein called the
"Indenture"), between the Company and
________________________________________________, as 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, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $________].
[If the Security is to be subordinated, insert--The indebtedness
evidenced by this Security is, to the extent and in the manner set forth in the
Indenture, expressly subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture) of the
Company. This Security is issued subject to such provisions of the Indenture,
and each Holder of this Security, by accepting the same, agrees to and shall be
bound by such provisions and authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate such subordination as provided in the Indenture and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.]
[If the Security is to bear interest at an adjustable rate prior to
Maturity, insert--If the Trustee determines in good faith for any reason that
the Weekly Treasury Rates for _____ year constant maturities are not published
by the Federal Reserve Board or any Federal Reserve Bank or any United States
Government department or agency during the period of ten calendar days ending on
the ________ (or, if the ________ is not a Business Day, the next preceding
Business Day) next preceding the ________ on which a _____ month period for
which the interest rate on the Securities is being fixed commences, the
Securities shall bear interest, at a rate per annum (rounded to the nearest five
hundredths of a percentage point) during such ________ month period of ___% of
the Alternate Treasury Rate for such ________ month period.]
[The "Alternate Treasury Rate" applicable to any ________ month
period commencing ________, ________, . . . and ________ means the yields to
maturity of the daily closing bids (or less frequently if daily quotations shall
not be available), quoted by at least three recognized U.S. Government
securities dealers selected by the Trustee, during a period of seven calendar
days, for all marketable U.S. Treasury securities with a maturity date of at
least ________ months but not more than ________ months from the date of the
determination (other than securities which can, at the option of the holder, be
surrendered at face value in payment of any federal estate tax). The seven
calendar day period shall be the seven calendar days ending on the (or, if the
________ is not a Business Day, the next preceding Business Day) next preceding
the ________ on which a ________ month period for which the interest rate on the
Securities is being fixed commences. Maturity means the date on which the
security becomes due.]
<PAGE>
2
[In determining that any Weekly Treasury Rates are not published,
the Trustee may rely conclusively on any written advice from the United States
Treasury to such effect.]
[If the Security is to be subject to redemption only at the option
of the Company or any sinking fund redemption will be at the same prices,
insert--The Securities of this series are subject to redemption upon not less
than 30 days' notice provided in the manner set forth in the Indenture, [(1) on
________ in any year commencing with the year ________ and ending with the year
________ through operation of the sinking fund for this series at the Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on or after
________, ________], as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before ________, __%, and if redeemed] during the
12-month period beginning ________ of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
and thereafter at a Redemption Price equal to ___% of the principal amount
together in the case of any such redemption [(whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
[If the Security is to be subject to redemption at the option of the
Company and pursuant to a sinking fund at different prices, insert--The
Securities of this series are subject to redemption upon not less than 30 days'
notice by mail, (1) on ________ in any year commencing with the year ________
and ending with the year ________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning in the years indicated,
REDEMPTION PRICE REDEMPTION PRICE FOR
FOR REDEMPTION REDEMPTION OTHERWISE
THROUGH OPERATION THAN THROUGH OPERATION
YEAR OF THE SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities of record at the close of
business on the relevant record dates referred to on the face hereof, all as
provided in the Indenture.]
<PAGE>
3
[If there is to be a sinking fund, insert--The sinking fund for this
series provides for the redemption on ________ each year beginning with the year
________ and ending with the year ________ of [not less than] $________
("mandatory sinking fund") and not more than $________] aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise
required to be made.]
[If the Security is to be redeemable in part, insert--In the event
of redemption of this Security in part only, a new Security or Securities of
this series for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is to bear interest at a floating rate, insert--If
on any date on which a [________ day] [___] Treasury Bill Rate is to be
determined, such rate is for any reason not determinable as provided on the face
hereof, (a) the Company, at its option, may redeem the Security upon not less
than nor more than ________ days' prior notice, as a whole [or from time to time
in part in increments of $________,] at a redemption price equal to [insert
appropriate prices and table, if any], together in the case of any such
redemption with accrued interest to the Redemption Date (but interest
installments whose Stated Maturity is on the Redemption Date will be payable to
the Holder of such Security of record at the close of business on the relevant
record date referred to on the face hereof), all as provided in the Indenture,
such right of redemption to be exercisable until ________; (b) the Security
shall be subject to repayment in whole [or in parts in increments of $________]
on any ________ or ________, at the option of the Holder thereof, at a price
equal to [insert appropriate repayment prices and table, if any] (the "Repayment
Price"), together with interest payable to the Repayment Date (but interest
installments whose Stated Maturity is on the Repayment Date will be payable to
the Holder of such Security of record at the close of business on the relevant
record date referred to on the face hereof), all as provided in the Indenture,
such option to be exercisable until ________; (c) the rate of interest in effect
at the time a [________ day] [__] Treasury Bill Rate becomes indeterminable
shall remain in effect until a new [________ day] [__] Treasury Bill Rate may be
determined as provided on the face hereof, and (d) the Company will promptly
deliver an Officers' Certificate to the Trustee certifying its inability to
determine the [________ day] [__] Treasury Bill Rate and notify the Holders of
such inability and of the redemption, repayment and interest rate provisions set
forth in (a), (b), and (c) above.]
[If the Security is to be subject to repayment at the option of the
Holder other than when a floating rate is not determinable, insert--This
Security is also subject to repayment in whole [or in part in increments of
$________] on [________, ________, or ________,] [any ________ or ________,
commencing on ________,] at the option of the Holder hereof at a price equal to
[insert appropriate repayment prices and table, if any] (the "Repayment Price"),
together with interest payable to the Repayment Date (but interest installments
whose Stated Maturity is on the Repayment Date will be payable to the Holder of
such Security of record at the close of business on the relevant record date
referred to on the face hereof), all as provided in the Indenture.]
[If the Security is to be subject to repayment at the option of the
Holder, insert--To be repaid at the option of the Holder, the Company must
receive this Security, with the form of "Option to Elect Repayment" hereon duly
completed, at an office or agency
<PAGE>
4
of the Company maintained for that purpose in ________ (or at such other place
of which the Company shall from time to time notify the Holder of this Security)
not less than nor more than ________ days prior to the Repayment Date. The
exercise of the repayment option by the Holder shall be irrevocable.
[If the Security is not to be subject to redemption at the option of
the Company, insert--The Securities are not redeemable at the option of the
Company prior to Maturity.]
[If the Security is not to be an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is to be an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
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 under the
Indenture to be affected at any time by the Company with the consent of the
Holders of not less than 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any, on) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
[If the Security is to be registered form, insert--As provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any, on) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
<PAGE>
5
executed by, the Holder hereof or his attorney duly authorized in writing, and,
thereupon one or more new Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
[The Securities of this series are issuable only in registered form
[without coupons] in denominations of $________ [and any integral multiple] [or
increments of $________ in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.]
[No service charge shall 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 due presentment of this Security 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 Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.]
[If the Security is a Global Security, insert--"Global Security" and
"Global Securities" means a Security or Securities evidencing all or a part of a
series of Securities, issued to the Depositary (as hereinafter defined) for such
Series or its nominee, and registered in the name of such Depositary or its
nominee. "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as the Depositary by the Company.
No holder of any beneficial interest in this Note held on its behalf
by a Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
This Note is exchangeable, in whole but not in part, for Notes
registered in the names of Persons other than the Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary only if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for this Note or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, in either case, a successor depositary is
not appointed by the Company within 90 days, (ii) the Company in its discretion
at any time determines not to have all of the Notes of this series represented
by one or more Global Security or Securities and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with respect to the
Notes of this series. If this Note is exchangeable pursuant to the preceding
sentence, it shall be exchangeable for Notes issuable in authorized
denominations and registered in such names as the Depositary holding this Note
<PAGE>
6
shall direct. Subject to the foregoing, this Note is not exchangeable, except
for a Note or Notes of the same aggregate denominations to be registered in the
name of such Depositary or its nominee or in the name of a successor to the
Depositary or a nominee of such successor depositary.]
[The Indenture entitles Holders to receive annual reports with
respect to the Trustee's eligibility and qualifications to serve as Trustee by
filing their names and addresses with the Trustee for that purpose within two
years preceding the mailing of any such annual report.]
No recourse shall be had for the payment of the principal of (and
premium, if any, on) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security, including without limitation the obligation of the
Company contained herein to pay the principal of (and premium, if any, on) and
interest on this Security in accordance with the terms hereof and of the
Indenture, shall be construed in accordance with and governed by the laws of the
State of New York.
<PAGE>
7
[Form of Trustee's Certificate of Authentication.]
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
As [Authenticating Agent for] the Trustee
By
Authorized Officer
<PAGE>
1
[Form of Option to Elect Repayment.]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof, together
with interest to the Repayment Date, to the undesigned, at
(Please Print or Typewrite Name and Address of the Undersigned)
For this Security to be repaid, the Company must receive this
Security, with this "Option to Elect Repayment" form duly completed, at an
office or agency of the Company maintained for that purpose in _________, or at
such other place of which the Company shall from time to time notify the Holder,
no less than ___ days nor more than ____ days prior to [_______, _____, . . . or
_______] [the ________ or _________ (commencing on _______)].
If less than the entire principal amount of the within Security is
to be repaid, specify the portion thereof (which shall be $__________, or an
integral multiple of $_______) which the Holder elects to have repaid:
$______________.
Dated:
Note: The signature must correspond with the
name as written upon the face of the Security in
every particular without alteration or
enlargement.
Exhibit 4.5
REGISTERED [IF THE SECURITY IS A GLOBAL SECURITY, Principal Amount:
INSERT -- UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT
BE TRANS FERRED EXCEPT AS A WHOLE BY THE $
No. FXD- 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 CUSIP
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
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
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 __
(FIXED RATE)
<PAGE>
2
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, 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
<PAGE>
3
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 __ of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, 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.
<PAGE>
4
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. Chairman of the Board
THE CHASE MANHATTAN BANK
as Trustee ATTEST:
By:_____________________________ _______________________________
Authorized Signatory Secretary
<PAGE>
5
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES __
(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 Indenture dated as of December 18, 1991 and
_____________ (herein called the "Indenture") between the Company and The Chase
Manhattan Bank , 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 __ (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 the 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
<PAGE>
6
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 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
<PAGE>
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.
_________________________________
<PAGE>
8
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.
Exhibit 4.6
REGISTERED [IF THE SECURITY IS A GLOBAL Principal Amount:
SECURITY, INSERT -- UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE $
OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT CUSIP
AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY
No. FLD- 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 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
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 __
<PAGE>
2
(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 hereof), such Interest Payment Date shall be the following day
that is a Business Day, except that in the case that 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
<PAGE>
3
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 __, of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder
<PAGE>
4
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 series designated therein By:______________________________
referred to in the Chairman of the Board
within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: _______________________________
Authorized Signatory ATTEST:
_________________________________
Secretary
<PAGE>
5
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES __
(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 Indenture dated as of December 18, 1991 and
________________ (herein called the "Indenture") between the Company and The
Chase Manhattan Bank, as the 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 __ (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
<PAGE>
6
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.
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
<PAGE>
7
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 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
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
<PAGE>
8
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
<PAGE>
9
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 applicable Interest Determination Date specified on
the face hereof for Federal Funds (i) as published in the H.15(519), or any
successor publication, 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 the 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
<PAGE>
10
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 the 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 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
<PAGE>
11
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.
<PAGE>
12
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.
Exhibit 5
September 3, 1997
Board of Directors
GATX Capital Corporation
Four Embarcadero Center, Suite 2200
San Francisco, CA 94111
Re: 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 $500 million aggregate principal amount of Senior and Subordinated Debt
Securities (the "Debt Securities") of GATX Capital Corporation, a Delaware
corporation (the "Company").
I have examined (i) the Distribution Agreement in the form included as
Exhibit 1(a) to the Registration Statement (the "Distribution Agreement"), (ii)
the Underwriting Agreement in the form included as Exhibit 1(b) to the
Registration Statement (the "Underwriting Agreement"), (iii) a copy of the
Indenture, dated as of July 31, 1991 between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), 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"), (iv) a copy of the form of Subordinated
Indenture between the Company and a subordinated indenture trustee included as
Exhibit 4(c) to the Registration Statement (the "Subordinated Indenture"), (v)
the proposed form of Debt Security and Notes included as Exhibits 4(d), 4(e) and
4(f) to the Registration Statement, and (vi) originals or copies certified or
authenticated to my satisfaction of the Company's Restated Certificate of
Incorporation, its Bylaws 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 Subordinated Indenture will be
duly authorized, executed and delivered by the subordinated indenture trustee
and will be the legal, valid and binding obligation of such trustee, and (iii)
that the Debt Securities 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.
<PAGE>
2
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 appointed
thereby, 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, the Distribution Agreement and the Underwriting
Agreement, and duly authenticated by the Trustee under the Indenture or the
Subordinated Indenture, the Debt Securities 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 thereon 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 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
Exhibit 12
GATX Capital Corporation
Computation of Ratio of Earnings to Fixed Charges
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Six Months
Ended June 30, Year Ended December 31,
----------- --------------------------------------------------------------------
1997 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on indebtedness and
amortization of debt discount and
expense $ 44,485 $ 86,106 $ 68,396 $ 62,744 $ 65,454 $ 71,889
Capitalized interest 745 3,074 1,601 292 279 73
Portion of rents representing
interest factor (assumed to 7,178 10,849 6,574 5,120 3,012 2,440
approximate 33%)
Total fixed charges 52,408 100,029 76,571 68,158 68,745 75,060
EARNINGS AVAILABLE FOR
FIXED CHARGES:
Net income (loss) 35,974 45,855 32,604 24,851 21,525 (7,197)
Add (deduct):
Income taxes (benefit) 24,487 32,636 22,740 18,785 21,361 (9,849)
Cumulative effect of accounting -- -- -- -- (9,456) --
changes
Equity in net earnings of joint
ventures, net of dividends
received 18,479 8,740 13,522 14,322 16,222 40,161
Fixed charges (excluding
capitalized interest) 51,663 96,955 74,970 67,864 68,466 74,329
Total earnings available for fixed
charges $ 130,603 $ 184,186 $ 143,836 $ 125,822 $ 127,574 $ 87,988
Ratio of earnings to fixed
charges 2.49 1.84 1.88 1.85 1.86 1.17
</TABLE>
Exhibit 23.2
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 $500,000,000 Senior and Subordinated Debt
Securities and to the incorporation by reference therein of our report dated
January 28, 1997, 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, 1996, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Francisco, California
August 27, 1997
Exhibit 25
-------------------------------------------------------------------
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
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GATX CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-1661392
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
FOUR EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111
(Address of principal executive offices) (Zip Code)
SENIOR AND SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(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.
None.
- 2 -
<PAGE>
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, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, 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 State of New York, on the 2nd day of September, 1997.
THE CHASE MANHATTAN BANK
By /S/ JAMES P. FREEMAN
--------------------
James P. Freeman
Assistant Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance with a call made by
the Federal Reserve Bank of this District pursuant to the provisions of the
Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................... 13,892
Interest-bearing balances ............................... 4,282
Securities:
Held to maturity securities ................................ 2,857
Available for sale securities .............................. 34,091
Federal Funds sold and securities purchased under
agreements to resell .................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ................ $124,827
Less: Allowance for loan and lease losses ............... 2,753
Less: Allocated transfer risk reserve ................... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................. 122,061
Trading Assets ............................................. 56,042
Premises and fixed assets (including capitalized
leases) ................................................. 2,904
Other real estate owned .................................... 306
Investments in unconsolidated subsidiaries and
associated companies .................................... 232
Customers' liability to this bank on acceptances
outstanding ............................................. 2,092
Intangible assets .......................................... 1,532
Other assets ............................................... 10,448
TOTAL ASSETS ............................................... $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ..................................... $ 91,249
Noninterest-bearing ..................................... $ 38,157
Interest-bearing ........................................ 53,092
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ............................................... 70,192
Noninterest-bearing ..................................... $ 3,712
Interest-bearing ........................................ 66,480
Federal funds purchased and securities sold under agree-
ments to repurchase ........................................ 35,185
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ........................................ 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less ........... 4,593
With a remaining maturity of more than one year .........
through three years .............................. 260
With a remaining maturity of more than three years ... 146
Bank's liability on acceptances executed and outstanding 2,092
Subordinated notes and debentures .......................... 5,715
Other liabilities .......................................... 11,373
TOTAL LIABILITIES .......................................... 264,112
EQUITY CAPITAL
Perpetual Preferred stock and related surplus .............. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock) .. 10,283
Undivided profits and capital reserves ..................... 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities ........................... (193)
Cumulative foreign currency translation adjustments ........ 16
TOTAL EQUITY CAPITAL ....................................... 16,597
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ....................... $ 280,709
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the
above-named bank, do hereby declare that this
Report of Condition has been prepared in
conformance with the instructions issued by the
appropriate Federal regulatory authority and is
true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the
correctness of this Report of Condition and
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
issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
