AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 1997
POST EFFECTIVE AMENDMENT NO. 1 (REGISTRATION STATEMENT NO. 33-65053)
REGISTRATION NO. 333-34879
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
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.
<PAGE>
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 $32 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
$11,034.45.
-----------------------------
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>
THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT,
ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO.
33-65053, AND SUCH POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE
CONCURRENTLY WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN
ACCORDANCE WITH SECTION 8(c) OF THE SECURITIES ACT OF 1933, AS AMENDED.
<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 OCTOBER 16, 1997
$532,000,000
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 October __, 1997.
<PAGE>
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, June 30, 1997; and
(c) The Company's Current Reports on Form 8-K dated January 23,
1997, June 10, 1997, August 27, 1997 and October 15, 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.
2
<PAGE>
THE COMPANY
GATX Capital is a diversified global financial services company
which provides asset-based financing for transportation, information technology
and industrial equipment. The Company's strategy is to invest in and manage
assets by combining its asset knowledge, transaction-structuring capabilities
and portfolio management expertise to control assets with significant upside
potential. 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 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. Key
strategic partners include a cross section of domestic and international
commercial banks, insurance companies and large industrial companies and
manufacturers. 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.
Since that time, the Company 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 commercial jet aircraft (34%), railroad equipment (20%),
information technology equipment (13%), marine equipment (12%), warehouse and
production equipment (10%), golf courses and equipment (4%) and other equipment
(7%).
GATX Capital has a financial and management interest in 108 aircraft
as of June 30, 1997, and orders and options for an additional 26 aircraft. 98%
of the aircraft portfolio (in investment dollars) is compliant with Stage 3
noise regulations. GATX Capital also has a financial and management interest in
957 locomotives and 38,130 railcars as of June 30, 1997. The utilization rate on
the operating lease fleet for locomotives and railcars as of such date is
approximately 97% and 96% respectively.
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.
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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, by a Second Supplemental Indenture dated as of January
2, 1996 and by a Third Supplemental Indenture dated as of October 14, 1997
(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 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 $532,000,000 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
4
<PAGE>
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.
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
5
<PAGE>
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 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.
6
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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 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
7
<PAGE>
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.
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 .............................................. $ 75,000*
Printing and engraving fees ............................... $ 15,000*
Trustee's fees and expenses ............................... $ 15,000*
Rating agency fees .................................... $ 50,000*
Miscellaneous ............................................. $ 9,985*
Total ................................................. $344,000*
========
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 1.1 to this Registration Statement and Section VIII of the
Underwriting Agreement filed as Exhibit 1.2 hereto 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 Second Supplemental Indenture dated as of January 2, 1996 between
GATX Corporation and The Chase Manhattan Bank (incorporated by
reference to Exhibit 4.3 to the Company's Form 8-K dated October 15,
1997).
4.4 Third Supplemental Indenture dated as of October 14, 1997 between
GATX Capital Corporation and The Chase Manhattan Bank (incorporated
by reference to Exhibit 4.4 to the Company's Form 8-K dated October
15, 1997).
4.5* Form of Subordinated Indenture.
4.6* Form of Debt Security.
4.7 Form of Medium-Term Note (Fixed Rate).
4.8 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.
25* Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank.
- -------------------------
*Previously filed.
II-2
<PAGE>
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 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.
II-3
<PAGE>
(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 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 Amendment
No. 1 to the 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 16th day of October, 1997
GATX CAPITAL CORPORATION
(Registrant)
By /s/ Joseph C. Lane
------------------------------------
Joseph C. Lane, President,
Director and Chief Executive Officer
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
--------- ----- ----
* Chairman of the Board October 16, 1997
- ------------------------
Ronald H. Zech
* President, Chief Executive October 16, 1997
- ------------------------ Officer and Director
Joseph C. Lane (Principal Executive
Officer)
* Executive Vice President and October 16, 1997
- ------------------------ Director
Alan C. Coe
* Executive Vice President and October 16, 1997
- ------------------------ Director
Jesse V. Crews
* Executive Vice President and October 16, 1997
- ------------------------ Director
Kathryn G. Jackson
* Director October 16, 1997
- ------------------------
David M. Edwards
* Vice President and Director October 16, 1997
- ------------------------
David B. Anderson
* Vice President and Chief October 16, 1997
- ------------------------ Financial Officer (Principal
Michael E. Cromar Financial Officer)
* Vice President and Controller October 16, 1997
- ------------------------ (Principal Accounting Officer)
Curt F. Glenn
*By: /s/ Thomas C. Nord
-------------------
Name: Thomas C. Nord
Title: Attorney-in-Fact
II-5
<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 Second Supplemental Indenture dated as of January 2, 1996
between GATX Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4.3 to the Company's
Form 8-K dated October 15, 1997).
4.4 Third Supplemental Indenture dated as of October 14, 1997
between GATX Capital Corporation and The Chase Manhattan
Bank (incorporated by reference to Exhibit 4.4 to the
Company's Form 8-K dated October 15, 1997).
4.5* Form of Subordinated Indenture.
4.6* Form of Debt Security.
4.7 Form of Medium-Term Note (Fixed Rate).
4.8 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.
25* Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The Chase Manhattan
Bank.
- -------------------------
*Previously filed.
II-6
Exhibit 1.1
GATX CAPITAL CORPORATION
Medium-Term Notes, Series E
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 $182,000,000 aggregate principal amount of its Medium-Term
Notes, Series E (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, January 2, 1996 and October 14, 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 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
<PAGE>
2
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. 333-34879) 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.
(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.
<PAGE>
3
(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 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>
4
(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.
(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
<PAGE>
5
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 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
<PAGE>
6
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, Series E 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."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
<PAGE>
7
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 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
<PAGE>
8
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 incorporated by reference therein and any supplements
and amendments thereto as each Agent may reasonably request.
<PAGE>
9
(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.
(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
<PAGE>
10
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 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
<PAGE>
11
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.
(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
<PAGE>
12
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 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
<PAGE>
13
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
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
<PAGE>
14
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 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
<PAGE>
15
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 statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
<PAGE>
16
(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 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.
<PAGE>
17
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 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
<PAGE>
18
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 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.
<PAGE>
19
(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 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
<PAGE>
20
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 a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
<PAGE>
21
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
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above-written.
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
MEDIUM-TERM NOTES, SERIES E
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>
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES E
TERMS AGREEMENT
__________, 19__
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Attention:
Re: Distribution Agreement
dated October __, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes, Series E: $
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>
[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
---------------------------
Name:
Title:
Accepted:
GATX CAPITAL CORPORATION
By
---------------------------
Name:
Title:
B-2
<PAGE>
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note, Series E
Administrative Procedures
Medium-Term Notes, Series E (the "Notes") in the aggregate principal
amount of $_______ are to be offered on a continuing basis by GATX Capital
Corporation (the "Company"). Salomon Brothers Inc, Chase Securities Inc., UBS
Securities and Morgan Stanley Dean Witter (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 October __, 1997
(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
(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, January 2, 1996 and October 14, 1997, 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,
Series E 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>
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).
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
C-2
<PAGE>
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.
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
C-3
<PAGE>
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.
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 If any offer to purchase a Note is accepted by the
Supplements: 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 such
Pricing Supplement 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.
C-4
<PAGE>
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.
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").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Interest Rate, Original Issue Date,
Maturity
C-5
<PAGE>
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.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of
approximately [___] 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 [___] of such CUSIP
numbers. The Company will assign CUSIP numbers to
Book-Entry Notes as
C-6
<PAGE>
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 Notes
issued in book-entry form. Upon obtaining such
additional CUSIP numbers, the Company will deliver
a list of such additional numbers to the Trustee
and DTC.
Registration: Each Book-Entry Note will be registered in the name
of Cede & Co. as nominee for DTC, on the security
register maintained by the Security Registrar under
the Indenture. The beneficial owner of a Note
issued in book-entry form (i.e., an owner of a
beneficial interest in a Book-Entry Note) (or one
or more indirect participants in DTC designated by
such owner) will designate one or more participants
in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as
agent for such beneficial owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form in accordance with
instructions provided by such Participants, a
credit balance with respect to such Note issued in
book-entry form in the account of such
Participants. The ownership interest of such
beneficial owner in such Note issued in book-entry
form will be recorded through the records of such
Participants or through the separate record of such
Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Book-Entry Notes Outstanding on such date that
represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may
be (other than
C-7
<PAGE>
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 stating that, as of such exchange
date, the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Book-Entry Notes for a single Book-Entry Note
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Book-Entry Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Book-Entry
Notes to be exchanged exceed $[___________] in
aggregate principal amount, one or more replacement
Book-Entry Note(s) will be authenticated and
issued, each to represent $[___________] of
principal amount of the exchanged Book-Entry Notes
and an additional Book-Entry Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: Book-Entry Notes will be issued in denominations of
$100,000 and any larger denomination which is an
integral multiple of $1,000. Book-Entry Notes will
be denominated in principal amounts not in excess
of $[200,000,000]. If one or more Notes issued in
book-entry form having an aggregate principal
amount in excess of $[200,000,000] would but for
the preceding sentence, be represented by, a single
Book-Entry Note, then one Book-Entry Note will be
issued to represent $[200,000,000] principal amount
of such Note or Notes issued in book-entry form and
an additional Book-Entry Note or Notes will be
issued to
C-8
<PAGE>
represent any remaining principal amount of such
Note or Notes issued in book-entry form. In such a
case, each of the Book-Entry Notes representing
such Note or Notes issued in book-entry form shall
be assigned the same CUSIP number.
Interest-General: Each payment of interest on each Book-Entry Note
that is a Fixed Rate Note will include interest
accrued through the day preceding, as the case may
be, the Interest Payment Date or Maturity Date.
Unless otherwise indicated in the applicable
Pricing Supplement, interest 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 Corporation, 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
Corporation.
Notice of Interest Payments On the first Business Day of March, June, September
and Regular Record Dates: 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
C-9
<PAGE>
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 Corporation
of the interest rates determined on such Interest
Determination Date or Calculation Date, if
applicable.
Payments of Principal Promptly after each Regular Record Date, the
and Interest-Payments of Trustee will deliver to the Company and DTC a
Interest Only: written notice specifying by CUSIP number the
amount of 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
Corporation. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than at Maturity), at the times and in
the manner set forth below under "Manner of
Payment."
Payments at Maturity: On or about the first Business Day of each month,
the Trustee will deliver to the Company and DTC a
written list of principal, interest and premium, if
any, to be paid on each Book-Entry Note maturing
either at Stated Maturity or on a Redemption Date
or on an optional repayment date (if any) in the
following month. The Trustee, the Company and DTC
will confirm the amounts of such principal and
interest payments with respect to a Book-Entry Note
on or about the fifth Business Day preceding the
maturity of such Book-Entry Note. At such Maturity,
the Company will pay to the Trustee, and the
Trustee in turn will pay to DTC, the principal
amount of such Note, together with interest and
premium, if any, due at such Maturity, at the times
and in the manner set forth below under "Manner of
Payment." If any Maturity of a Book-Entry Note is
not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for
the period from and after such Maturity. Promptly
after payment to DTC of the principal, interest and
premium, if any, due at the Maturity of any
Book-Entry Note, the Trustee will cancel and
destroy such Book-Entry Note
C-10
<PAGE>
and deliver to the Company a certificate of
destruction with respect to each canceled Note.
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. Acceptance and Rejection of Offers: The
Company shall have the sole right to accept offers
to purchase Notes from the Company and may reject
any such offer in whole or in part. Each Agent
shall
C-11
<PAGE>
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:
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
C-12
<PAGE>
(o) Original Issue Discount features,
if any
(p) Sinking Fund Dates and Amounts,
if any
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue Date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on
the same date) or by electronic transmission of
the information set forth in the above
settlement information. The Company will then
assign a CUSIP number to the Book-Entry Note
representing such Note and advise the Company
of such number. Each such communication by the
Company shall constitute a representation and
warranty by the Company to the Trustee and the
Agents that (i) such Note is then, and at the
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 in this connection under the
Indenture will not exceed $182,000,000 (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-13
<PAGE>
C. The Trustee will communicate to DTC and the
Agent through DTC's Participant Terminal
System, a pending deposit message specifying
the following settlement information:
1. The information set forth in 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.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
C-14
<PAGE>
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 Agent's
commission. Any entry of such a deliver order
shall be deemed to constitute a representation
and warranty by the Trustee to DTC that the
Book-Entry Note representing such Note has been
executed and authenticated.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and
credit such Note to the participant account of
the Participants maintained by DTC and (ii) to
debit the settlement accounts of such
Participants and credit the settlement account
of the Presenting Agent maintained by DTC, in
an 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-15
<PAGE>
Settlement Procedures For orders of Notes accepted by the Company,
Timetable: 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-16
<PAGE>
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 each 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 by the surrendered Book-Entry Note and
shall bear the CUSIP number of the surrendered
Book-Entry Note.
C-17
<PAGE>
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-18
<PAGE>
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 Date or Maturity.
The Trustee will provide monthly to the Company a
list of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law, but shall be relieved from any such
responsibility if it acts in good faith and in
reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee at
Maturity for payment will be 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-19
<PAGE>
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-20
<PAGE>
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 Salomon Brothers Inc,
Attention: __________; in the case of Chase
Securities Inc., Attention: __________; in the
case of UBS Securities LLC, Attention: _______;
in the case of Morgan Stanley Dean Witter,
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 made only against such acknowledgment of
receipt. Upon determination that the Note has
been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire
the net proceeds of the Note after deduction of
its applicable commission to the Company
C-21
<PAGE>
pursuant to standard wire instructions given by
the Company.
E. The Presenting Agent will deliver the Note
(with confirmations), as well as a copy of the
Prospectus and any applicable Pricing
Supplement received from the Company, to the
purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement Procedures For offers accepted by the Company, Settlement
Timetable: Procedures "A" 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.
The Trustee, upon receipt of the Certificated Note
from the Agent will immediately advise the Company
and the Company will promptly arrange to credit the
account of the Presenting Agent in an amount of
immediately available funds equal to the amount
previously paid by such Agent in settlement for the
Certificated Note. Such credits will be made on the
Settlement Date, if possible, and in any event not
later than the Business Day following the
Settlement Date; provided that the Company has
received notice on the same day. If such failure
shall have occurred for any reason other than
failure by such Agent to perform its obligations
C-22
<PAGE>
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-23
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)
October __, 1997
<PAGE>
1
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, a Second Supplemental Indenture dated as of January 2, 1996
and a Third Supplemental Indenture dated as of October 14, 1997 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
<PAGE>
3
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) 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 October __, 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
October __, 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 4.7
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
DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE CUSIP
DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE
No. FXD- 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.]
<PAGE>
GATX CAPITAL CORPORATION
_ % NOTE DUE 20__
(FIXED RATE)
Interest Rate: Redemption Date and Prices:
Original Issue Date: Sinking Fund Dates and Amounts:
Maturity Date: Total Amount OID:
Initial Accrual Period OID:
Yield to Maturity:
Redemption at Option of Company: Yes__ No__
Redemption at Holder's Option: Yes__ No__
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for
value received, hereby promises to pay to _______________________, or registered
assigns, the principal amount of ________________________________ DOLLARS, on
the Maturity Date shown above, and to pay interest thereon at the rate per annum
shown above until the principal hereon is paid or duly made available for
payment. The Company will pay interest (computed on the basis of a 360-day year
of twelve 30-day months) semiannually on April 1 and October 1 of each year
(each an "Interest Payment Date") commencing with the Interest Payment Date next
following the Original Issue Date specified above (the "Original Issue Date")
(provided that, if the Original Issue Date is later than March 15 or September
15 and prior to the next succeeding Interest Payment Date, interest shall be so
payable commencing with the second Interest Payment Date following the Original
Issue Date) and on the Maturity Date or the date of redemption (the "Redemption
Date") on said principal amount, at the Interest Rate per annum specified above.
Interest on this Note will accrue from the most recent Interest Payment Date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Original Issue Date shown above until the principal hereof has
been paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture referred to on the reverse hereof, be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the March
15 or the September 15, whether or not a Business Day (as defined on the reverse
hereof), as the case may be, next preceding such Interest Payment Date;
provided, however, 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
2
<PAGE>
payable, but is not punctually paid or duly provided for on any Interest Payment
Date, shall forthwith cease to be payable to the registered holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to the Holder of this Note not less
than ten days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note shall be made at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt; provided, however, that payment of interest on any
Interest Payment Date (other than the Maturity Date or Redemption Date, if any)
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The principal hereof and interest due at maturity shall be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the law
of the State of New York.
This Note is one of the _% Notes Due 20__ 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.
3
<PAGE>
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
referred to in the within-
mentioned Indenture. By:
--------------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK,
as Trustee ATTEST:
By:
------------------------------- --------------------------------
Authorized Signatory Secretary
4
<PAGE>
[Reverse of Note]
GATX CAPITAL CORPORATION
_% NOTE DUE 20__
(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, all such Securities issued and to be issued under the indenture dated
as of July 31, 1989, as supplemented and amended by the Supplemental Indentures
dated as of December 18, 1991, January 2, 1996 and October 14, 1997 (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
the Securities designated as _% Notes Due 20__ (the "Notes"). The Notes 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
5
<PAGE>
Outstanding Notes having such terms as specified by the Company not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate. Any notice by the Trustee of such redemption at the option of the
Company shall specify which Notes are to be redeemed. In the event of redemption
of this Note, in part only, a new Note or Notes in authorized denominations for
the unredeemed portion hereof shall be issued in the name of the Holder hereof
upon the surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and 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
6
<PAGE>
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein or particularized on the face hereof shall have the meanings assigned to
them in the Indenture.
------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants in
common UNIF GIFT MIN ACT-- Custodian
--------------- ---------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
7
<PAGE>
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.
8
Exhibit 4.8
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 TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE CUSIP
DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE
No. FLD- 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.]
<PAGE>
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES E
(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
2
<PAGE>
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 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.
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<PAGE>
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
This Note is one of the Medium-Term Notes, Series E 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.
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 By:
designated therein referred to in the -----------------------------
within-mentioned Indenture. Authorized Signatory
THE CHASE MANHATTAN BANK,
as Trustee
By: ATTEST:
-------------------------------
Authorized Signatory
--------------------------------
Secretary
4
<PAGE>
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES E
(FLOATING RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991, January 2,
1996 and October 14, 1997 (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 the Securities designated as Medium-Term Notes,
Series E (the "Notes"). The Notes 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
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<PAGE>
"Commercial Paper Rate" (the "Commercial Paper Rate Notes"), the "Federal Funds
Rate" (the "Federal Funds Rate Notes"), and "LIBOR" ("LIBOR" Notes"), or by the
actual number of days in the year, in the case of Notes with an interest rate
determined by reference to the "Treasury Rate" (the "Treasury Rate Notes"). The
interest rate in effect on each day will be (a) if such day is an Interest Reset
Date, the interest rate with respect to the Interest Determination Date (defined
below) pertaining to such Interest Reset Date or (b) if such day is not an
Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding interest Reset Date;
provided, however, that (i) the interest rate in effect from the Original Issue
Date to the first Interest Reset Date will be the initial Interest Rate as
specified on the face hereof and (ii) the interest rate in effect for the ten
calendar days immediately prior to maturity will be that in effect on the tenth
calendar date preceding maturity. Notwithstanding the foregoing, the interest
rate hereon shall not be greater than the Maximum Interest Rate, if any, shown
on the face hereof (the "Maximum Interest Rate"), or less than the Minimum
Interest Rate, if any, shown on the face hereof (the "Minimum Interest Rate").
All percentages resulting from any calculations will be rounded, if necessary,
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent being rounded upwards. In addition, the interest rate hereon shall in no
event be higher than the maximum rate, if any, permitted by applicable law.
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
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<PAGE>
(ii) with respect to LIBOR Notes only, a London Banking Day. A "London Banking
Day" means any day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market. In the case of weekly reset Treasury Rate Notes,
if an auction of treasury bills falls on a day that is an Interest Reset Date
for Treasury Rate Notes, the Interest Reset Date will be the following day that
is a Business Day.
The Interest Determination Date (the "Interest Determination Date")
pertaining to an Interest Reset Date will be, if the Interest Rate Basis
(defined below) is the Commercial Paper Rate or the Federal Funds Rate, the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the Interest
Rate Basis is LIBOR, the second London Banking Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
will be, if the Interest Rate Basis is the Treasury Rate, the day of the week in
which such Interest Reset Date falls on which Treasury bills (as defined below)
of the Index Maturity specified on the face hereof are auctioned. Treasury bills
normally are auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such action may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. Interest payable hereon will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
specified on the face hereof. Unless otherwise shown on the face hereof,
interest will be payable. If this Note resets daily, weekly or monthly, on the
third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year; if this Note resets quarterly, on the third
Wednesday of March, June, September and December of each year; if this Note
resets semiannually, on the third Wednesday of the two months of each year
specified on the face hereof; and if this Note resets annually, on the third
Wednesday of the month specified on the face hereof (each such date being an
"Interest Payment Date") and in each case, at maturity or, if applicable, upon
redemption.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
specified on the face hereof (the "Interest Rate Basis") is "Commercial Paper
Rate," the interest rate shall equal (a) the Money Market Yield (as defined
below) on the applicable Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof (i) as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" ("H.15(519)"), or any successor publication,
under the heading "Commercial Paper" or (ii) in the event that such rate is not
published by the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government 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
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<PAGE>
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 above cases adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof; provided, however, that if such
dealers are not quoting as mentioned above, the interest rate in effect hereon
until the Interest Reset Date next succeeding the Interest Reset Date to which
such Interest Determination Date relates shall be the rate in effect for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest for such period shall be the Initial Interest
Rate).
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the
face hereof is "LIBOR," commencing on the second London Banking Day immediately
following the applicable Interest Determination Date the interest rate shall be
equal to either (i) the arithmetic mean (rounded upward if necessary to the
nearest one-sixteenth of one percent) as calculated by the Calculation Agent, of
the offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, which appear on the Reuters Screen LIBO Page (or
such other page as may replace the same), as of 11:00 A.M., London time, on such
Interest Determination Date or (ii) the rate for deposits in U.S. dollars having
the Index Maturity specified on the face hereof which appears on the Telerate
Page 3750 (or such other page or service as may replace the same) as of 11 A.M.,
London time, on such Interest Determination Date, in each case adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if less than two such offered rates appear on the
Reuters Screen LIBO Page or if no rate appears on Telerate Page 3750, as
applicable, the Calculation Agent shall request the principal London Office of
each of four major banks in the London interbank market selected by the
Calculation Agent to provide a quotation of the rate 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
8
<PAGE>
nearest one-sixteenth of one percent) of (a) such quotations, if at least two
quotations are provided, or (b) if less than two quotations are provided, the
rates quoted at approximately 11:00 A.M., New York City time, on such Interest
Determination Date by three major banks in The City of New York, selected by the
Calculation Agent (after consultation with the Company) for loans in U.S.
dollars to leading European banks, having the Index Maturity specified on the
face hereof commencing on the second London Banking Day immediately following
such Interest Determination Date and in a principal amount as aforesaid, in
either case, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof; provided, however, that if the three banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the rate in effect for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest for
such period shall be the Initial Interest Rate).
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is "Federal Funds Rate," the interest rate shall
equal (a) the rate on the 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
9
<PAGE>
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 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 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
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<PAGE>
redemption of this Note in part only, a new Note or Notes in authorized
denominations for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and this Note duly executed by, the
Holder hereof or by the attorney duly authorized in writing by such Holder, 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.
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<PAGE>
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.
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<PAGE>
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.
13
