As filed with the Securities and Exchange Commission on December 29, 1999
Post-Effective Amendment No. 1 (Registration Statement No. 333-86879)
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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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)
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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)
Copy to:
JOHN P. McENROE, ESQ.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3016
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Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective depending on market
conditions and other factors.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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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(3)
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Senior and
Subordinated Debt
Securities.......... $1,000,000,000 100% 100% $264,000.00
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(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 $1,000,000,000.
(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 $15.0 million of debt securities
previously registered pursuant to Registration Statement No. 333-86879.
The filing fee previously paid with respect to such debt securities was
$4,185.00
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the SEC, 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. 333-86879. The $15.0 million of debt securities
unsold from Registration Statement No. 333-86879 will be combined with the
$1,000,000,000 aggregate amount of debt securities to be registered pursuant to
this Registration Statement to enable GATX Capital Corporation to offer an
aggregate amount of $1,015,000,000 of securities pursuant to the combined
prospectus.
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This Registration Statement, which is a new registration statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
333-86879, and such post-effective amendment shall hereafter become effective
concurrently with the effectiveness of this Registration Statement and in
accordance with sec tion 8(c) of the Securities Act of 1933, as amended.
<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 29, 1999
PROSPECTUS
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U.S. $1,015,000,000
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GATX Capital Corporation
Four Embarcadero Center
San Francisco, CA 94111
(415) 955-3200
Debt Securities
We may offer to sell up to U.S. $1,015,000,000 of our debt securities in
one or more offerings. In this prospectus, we describe generally the terms of
these debt securities, which will consist of senior securities and subordinated
securities. We will describe the specific terms of the debt securities that we
offer in a supplement or supplements to this prospectus at the time of each
offering. If any offering involves underwriters, dealers or agents, we will
describe our arrangements with them in the prospectus supplement and if
applicable, pricing supplements, that relate to that offering.
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The Securities and Exchange Commission and state securities regulators
have not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is December 29, 1999
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The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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You should rely only on the information incorporated by reference or
contained in this prospectus and any applicable prospectus supplement and
pricing supplement, if any. We have not authorized anyone to provide you with
different information. We are offering to sell, and seeking offers to buy, our
debt securities only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus or the applicable prospectus supplement
and pricing supplement, if any, is accurate only as of the date on the front of
those documents, regardless of the time of delivery of this prospectus or the
applicable prospectus supplement and pricing supplement, if any, or of any sale
of our debt securities.
Unless the context indicates otherwise, the words "GATX Capital," "we,"
"us," "our" and "ours" refer to GATX Capital Corporation and its consolidated
subsidiaries.
ABOUT THIS PROSPECTUS
The prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under this shelf registration, we may sell the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$1,015,000,000. We provide information to you about these securities in three
documents that progressively provide more detail:
1. This prospectus which contains general information that may or may
not apply to each offering of securities.
2. The applicable prospectus supplement, which will contain more
specific information than this prospectus and may also add, update
or change information contained in this prospectus. To the extent
information differs from this prospectus, you should rely on the
different information in the applicable prospectus supplement.
3. The pricing supplement, if applicable, will provide final details
about a specific offering and the terms of the offered securities,
including their price. To the extent information differs from this
prospectus or the prospectus supplement, you should rely on the
different information in the pricing supplement.
You should read both this prospectus and any prospectus supplement or
pricing supplement together with any additional information described under the
heading "Where You Can Find More Information" below to learn more about us and
the securities offered.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the
Securities Act of 1933, as amended, with respect to the debt securities that we
are offering by this prospectus. This prospectus does not contain all of the
information set forth in the registration statement and its exhibits and
schedules. Certain items are omitted in accordance with the rules and
regulations of the SEC. For further information about us and the securities
offered by this prospectus, reference is made to the registration statement of
which this prospectus forms a part and the exhibits and any schedules filed with
the registration statement of which this prospectus forms a part. Statements
contained in this prospectus as to the contents of any contract or other
document referred to are not necessarily complete and in each instance, if such
contract or document is filed as an exhibit, reference is made to the copy of
such contract or other document filed as an exhibit to the registration
statement, each statement being qualified in all respects by such reference.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file, including
the registration statement, at the SEC's Public Reference Room at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's regional offices
located at Seven World Trade Center, Suite 1300, New York, New York 10048 and at
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, IL 60661. For
further information on the operation of the Public Reference Room, you may call
the SEC at 1-800-SEC-0330. Our SEC filings are also available to the public over
the Internet at the SEC's website at http://www.sec.gov.
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INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information in
documents that we file with them. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information in documents that we file after the date of this prospectus and
before the termination of the offering contemplated by this prospectus will
automatically update and supersede information in this prospectus.
The following documents, which are on file with the SEC, are incorporated
by reference in and made a part of this prospectus:
(a) our Annual Report on Form 10-K for the year ended December 31, 1998;
(b) our Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999, June 30, 1999 and September 30, 1999; and
(c) our Current Reports on Form 8-K filed on September 29, 1999 and
October 1, 1999.
We also incorporate by reference any future filings made with the SEC
under sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, until we sell all of the securities or otherwise terminate the
offering of securities offered by this prospectus.
We will provide without charge, upon written or oral request, to each
person to whom this prospectus is delivered, a copy of any or all of the
documents described above which have been or may be incorporated by reference in
this prospectus but not delivered with this prospectus. Such request should be
directed to:
Thomas C. Nord, Esq.
Vice President and General Counsel
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Telephone Number: (415) 955-3200
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements that have been made pursuant to the provisions of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
not historical facts, but rather are based on our current expectations,
estimates and projections about GATX Capital's industry, our beliefs and
assumptions. Words such as "anticipates," "expects," "intends," "plans,"
"believes," "seeks," "estimates" and similar expressions are intended to
identify forward-looking statements. These statements are not guarantees of
future performance and are subject to certain risks, uncertainties and other
factors, some of which are beyond our control, are difficult to predict and
could cause actual results to differ materially from those expressed or
forecasted in the forward-looking statements. Many of these risks and
uncertainties may be described with particularity in the applicable prospectus
supplement or the documents incorporated by reference in this prospectus. We
caution you not to place undue reliance on these forward-looking statements,
which reflect our management's view only as of the date of this prospectus or
the prospectus supplement containing such forward-looking statements. We are not
obligated to update these statements or publicly release the result of any
revisions to them to reflect events or circumstances after the date of this
prospectus or the applicable prospectus supplement, or to reflect the occurrence
of unanticipated events.
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GATX CAPITAL
We are a diversified global financial services company which provides
asset-based financing for transportation, information technology and industrial
equipment. Our strategy is to invest in and manage assets by combining our asset
knowledge, transaction-structuring capabilities and portfolio management
expertise to control assets with significant upside potential. We and our
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 our own account or through partnerships and joint ventures. We
actively manage our existing portfolio of investments as well as those of
institutional investors, and several joint ventures and partnerships in which we
participate. Key strategic partners include a cross section of domestic and
international commercial banks, insurance companies and large industrial
companies and manufacturers. Additionally, we arrange secured financing for
others.
GATX Corporation ("GATX") owns all of our common and preferred stock
through a wholly owned subsidiary. GATX founded GATX Capital 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, we
have developed a portfolio of earning assets diversified across industries and
equipment classifications. At September 30, 1999, GATX Capital's investment
portfolio of approximately $2.6 billion, before reserves, consisted of
commercial jet aircraft (27%), railroad equipment (14%), information technology
equipment (26%), marine equipment (7%), warehouse and production equipment (4%),
and other equipment (22%).
We had a financial and management interest in 125 aircraft as of September
30, 1999, and orders and options for an additional 52 aircraft. All of the
aircraft portfolio is compliant with Stage 3 noise regulations. GATX Capital
also had a financial and management interest in 960 locomotives and 54,649
railcars as of September 30, 1999. The utilization rate on the operating lease
fleet for our aircraft, locomotives and railcars as of that date was
approximately 100%, 99.6% and 97.3%, respectively.
We regularly purchase assets from manufacturers, including those of
commercial aircraft, or others to acquire, directly or through joint ventures
and partnerships in which we participate, additional equipment to complement our
investment portfolio. Such purchases may be material in amount and have an
effect on our financial condition, results of operations and debt service
capability.
RISK FACTORS
If the applicable prospectus supplement has a section called "Risk
Factors," you should carefully consider the specific risks set forth in that
section before making an investment decision. The risks and uncertainties
described in the applicable prospectus supplement are not the only ones facing
GATX Capital. Additional risks and uncertainties not currently known to us or
that we currently think are immaterial may also impact our business operations.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement and
pricing supplement, if any, we will use the net proceeds from the sale of the
debt securities offered by this prospectus for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
We compute the ratio of earnings to fixed charges by dividing earnings
from continuing operations before fixed charges and income taxes by the fixed
charges. This ratio includes our earnings and fixed charges as well as those of
all
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of our consolidated subsidiaries. Fixed charges consist of interest and debt
expense and the portion of rentals for real and personal properties in an amount
we deem to be representative of the interest factor.
Nine Months
Ended September 30, Year Ended December 31,
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1999 1998 1998 1997 1996 1995 1994
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Ratio of earnings
to fixed charges 1.75x 1.85x 2.01x 2.17x 1.83x 1.88x 1.85x
DESCRIPTION OF DEBT SECURITIES
We describe in this section the general terms that will apply to any debt
securities that we may offer in the future, to which a future prospectus
supplement and pricing supplement, if any, may relate. At the time that we offer
debt securities, we will describe in the prospectus supplement and pricing
supplement, if any, that relates to that offering (i) the specific terms of the
debt securities and (ii) the extent to which the general terms described in this
section apply to those debt securities.
We expect to issue debt securities consisting of senior securities and
subordinated 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, between GATX Capital and The Chase Manhattan Bank,
as trustee. This indenture is included as an exhibit to the registration
statement of which this prospectus forms a part. The subordinated securities are
to be issued under a separate indenture. A form of the indenture for the
subordinated securities is included as an exhibit to the registration statement
to which this prospectus forms a part. The trustee for the indenture for the
subordinated securities will be identified in the relevant prospectus
supplement. In the discussion that follows, we summarize particular provisions
of the indentures. Our discussion of indenture provisions is not complete. You
should read the indentures for a more complete understanding of the provisions
we describe.
The aggregate principal amount of debt securities that GATX Capital may
issue under each of the indentures is unlimited. (Section 3.1)
General
Debt securities offered by this prospectus will be limited to an aggregate
initial public offering price of $1,015,000,000 or the equivalent amount 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 equally and ratably
with other senior indebtedness of GATX Capital. The subordinated securities will
be subordinated and junior in right of payment to certain indebtedness of GATX
Capital to the extent set forth in the applicable prospectus supplement.
Each prospectus supplement and pricing supplement, if any, relating to a
particular offering of debt securities will describe the specific terms of debt
securities. Those specific terms will include the following:
o the title of the debt securities;
o any limit on the aggregate principal amount of the debt securities;
o 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;
o the date or dates on which the debt securities will mature;
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o 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;
o the payment dates on which interest, if any, 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;
o any mandatory or optional sinking fund or analogous provisions;
o 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;
o 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 GATX Capital or the holder of debt securities, or according to
mandatory redemption provisions, and the other detailed terms and
provisions of any such optional or mandatory redemption provisions;
o the denominations in which any debt securities will be issuable, if
other than denominations of $100,000;
o any index used to determine the amount of payments of principal of
and any premium and interest on the debt securities;
o the portion of the principal amount of the debt securities, if other
than the principal amount, payable upon acceleration of maturity;
o 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;
o the terms of subordination applicable to any series of subordinated
securities; and
o any other terms of the debt securities not inconsistent with the
provisions of the indentures.
Any such prospectus supplement and pricing supplement, if any, will also
describe any special provisions for the payment of additional amounts with
respect to the debt securities of such series.
Except where we describe in the applicable prospectus supplement and
pricing supplement, if any, the indentures do not contain any covenants
specifically designed to protect holders of the debt securities against a
reduction in the creditworthiness of GATX Capital in the event of a highly
leveraged transaction or to prohibit other transactions which may adversely
affect holders of the debt securities.
We may issue debt securities as original issue discount securities to be
sold at a substantial discount below their stated principal amounts. We will
describe in the relevant prospectus supplement and pricing supplement, if any,
any special United States federal income tax considerations that may apply to
debt securities issued at such an original issue discount. 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 also be set forth in a prospectus supplement and pricing
supplement, if any.
Global Securities
According to the indentures, so long as the depositary's nominee is the
registered owner of a global security, that nominee will be considered the sole
owner of the debt securities represented by the global security for all
purposes.
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Except as provided in the relevant prospectus supplement and pricing supplement,
if any, 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 of the debt securities 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 and pricing
supplement, if any.
Subordination
We may issue subordinated securities from time to time in one or more
series under the subordinated indenture. Our subordinated securities will be
subordinated and junior in right of payment to certain other indebtedness of
GATX Capital to the extent set forth in the applicable prospectus supplement and
pricing supplement, if any.
Certain Covenants of GATX Capital with Respect to Senior Securities
In this section we describe the principal covenants that will apply to the
senior securities unless otherwise indicated in the applicable prospectus
supplement and pricing supplement, if any.
Limitation on Liens. The senior securities are not secured by mortgage,
pledge or other lien. We have covenanted that neither we nor any Restricted
Subsidiary (which the indenture relating to the senior securities defines as any
subsidiary which is a consolidated subsidiary, in accordance with generally
accepted accounting principles, in the consolidated financial statements of GATX
Capital will subject any of our property, tangible or intangible, real or
personal, to any lien unless the senior securities are secured equally and
ratably with other indebtedness thereby secured. The exceptions from this
covenant include any liens existing on the date of the indenture relating to the
senior securities, as well as certain other liens, and the extension, renewal or
replacement of those liens including without limitation:
(a) Liens on any property provided that the creditor has no recourse
against GATX Capital or any Restricted Subsidiary except recourse to such
property or proceeds of any sale or lease therefrom;
(b) 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;
(c) Other liens not permitted by clauses (a) and (b) on property then
owned or thereafter acquired, provided no such lien shall be incurred pursuant
to clause (c) if the aggregate amount of indebtedness secured by liens incurred
pursuant to clauses (b) and (c), including the lien proposed to be incurred,
would exceed 30% of Net Tangible Assets (which the indenture relating to the
senior securities defines as the total assets of GATX Capital less (x) current
liabilities and (y) intangible assets);
(d) Liens securing certain intercompany indebtedness;
(e) A banker's lien or right of offset;
(f) Liens arising under the Employee Retirement Income Security Act of
1974, as amended, to secure any contingent liability of GATX Capital;
(g) Liens on sublease interests held by GATX Capital if those liens are in
favor of the person granting the lease to GATX Capital;
(h) Various specified governmental liens and deposits;
(i) Various other liens not incurred in connection with the borrowing of
money (including purchase money indebtedness) or the obtaining of advances or
credit; and
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(j) Liens incurred in connection with securing performance of letters of
credit, bids, tenders, appeal and performance bonds.
Limitation on Dividends. In addition, we have covenanted that neither we
nor any Restricted Subsidiary will pay any dividends upon any of our stock of
any class or make any distribution of cash or property among our stockholders by
reduction of capital or otherwise (other than in stock of GATX Capital) or
purchase or redeem any stock of any class of GATX Capital unless the aggregate
amounts of all such payments and distributions after December 31, 1988 to the
close of a calendar month ended within 60 days next preceding the date of such
payment will not exceed the sum of (i) the total of the accumulated consolidated
net income of GATX Capital 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 GATX Capital after December 31, 1988, (iii) the aggregate
principal amount of any indebtedness of GATX Capital which shall have been
converted into the stock of any class of GATX Capital and (iv) $25,000,000. This
restriction does not apply to:
o 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,
o The redemption or retirement of any shares of our capital stock by
exchange for, or out of the proceeds of a substantially concurrent sale of,
other shares of capital stock,
o The purchase of any shares of our capital stock pursuant to or in
connection with any retirement, bonus, profit sharing, thrift, savings, stock
option or compensation plan for our officers or employees, or
o The conversion of shares of any of our stock into shares of any other of
our stock.
Merger and Consolidation
Each indenture provides that we may consolidate or merge with or into any
other corporation and we may sell, lease or convey all or substantially all of
our assets to any corporation, organized and existing under the laws of the
United States of America or any U.S. state, provided that the corporation (if
other than GATX Capital) 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), any interest on and any additional amounts
payable with respect to the debt securities and the performance and observance
of all of the covenants and conditions of such indenture to be performed or
observed by GATX Capital.
Modification and Waiver
The indentures provide that we and the trustee may modify and amend the
indentures with the consent of the holders of 66-2/3% in principal amount of the
outstanding debt securities of each series affected by the modification or
amendment, provided that no such modification or amendment may, without the
consent of the holder of each outstanding debt security affected by the
modification or amendment:
o Change the stated maturity of the principal of, or any installment of
interest on or any additional amounts payable with respect to, any debt security
or change the redemption price;
o 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;
o Change the place or currency of any payment of principal or interest on
any debt security;
o Impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security;
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o 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
o 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
our compliance with certain provisions of each indenture.
Events of Default, Waiver and Notice
An event of default with respect to any debt security of any series is
defined in each indenture as being:
o Default for 30 days in payment of any interest on or any additional
amounts payable in respect of any debt security of that series;
o 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;
o Default in the performance or breach of any other covenant or warranty
of GATX Capital 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;
o Certain events of bankruptcy, insolvency and reorganization of GATX
Capital; and any other event of default established for the debt securities of
such series set forth in the applicable prospectus supplement and pricing
supplement, if any.
Each indenture provides that the trustee may withhold notice to the holders of
the debt securities of any default with respect to any series of debt securities
(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 also that:
o If an event of default due to the default in payment of principal of, or
interest on, any series of debt securities, or because of our default in the
performance or breach of any other covenant or warranty 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
o 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 GATX Capital 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
-9-
<PAGE>
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. GATX Capital 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 Trustee
The Chase Manhattan Bank is the trustee under the senior securities
indenture, as well as certain equipment trust agreements with an affiliate of
GATX Capital. The Chase Manhattan Bank has, and certain of its affiliates may
from time to time have, substantial banking relationships with GATX Capital and
certain of its affiliates, including GATX.
The trustee under the indenture relating to the senior securities and the
trustee under the indenture relating to the subordinated securities may from
time to time make loans to GATX Capital and perform other services for GATX
Capital in the normal course of business. Under the provisions of the Trust
Indenture Act of 1939, as amended, upon the occurrence of a default under an
indenture, if a trustee has a conflicting interest (as defined in the Trust
Indenture Act), the trustee must, within 90 days, either eliminate such
conflicting interest or resign. Under the provisions of the Trust Indenture Act,
an indenture trustee shall be deemed to have a conflicting interest, among other
things, if the trustee is a creditor of the obligor. If the trustee fails either
to eliminate the conflicting interest or to resign within 10 days after the
expiration of such 90-day period, the trustee is required to notify security
holders to this effect and any security holder who has been a bona fide holder
for at least six months may petition a court to remove the trustee and to
appoint a successor trustee.
PLAN OF DISTRIBUTION
We may sell the debt securities to one or more underwriters or dealers for
public offering and sale by them and 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 and pricing supplement, if any, will describe the method of
distribution of the debt securities offered by that prospectus supplement and
pricing supplement, if any.
If we sell the debt securities through agents, unless otherwise indicated
in the related prospectus supplement, each agent will be acting on a reasonable
best efforts basis for the period of its appointment. If we sell the debt
securities to underwriters, unless otherwise indicated in the related prospectus
supplement, the obligations of the underwriters to purchase the debt securities
will be subject to customary conditions and the underwriters will be obligated
to purchase all the debt securities of the series offered if any of the debt
securities of that series are purchased.
In connection with the sale of the debt securities, underwriters, dealers
or agents may receive compensation from GATX Capital 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 GATX Capital will be described in the prospectus supplement and
pricing supplement, if any. 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 GATX Capital, underwriters,
dealers and agents may be entitled to indemnification by GATX Capital 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.
Some of the underwriters, dealers or agents and their respective
affiliates may be customers of, engage in transactions with and perform services
for us in the ordinary course of business.
-10-
<PAGE>
LEGAL OPINIONS
Our Vice-President and General Counsel, Thomas C. Nord, Esq., will pass on
the validity of the debt securities offered by this prospectus. If we offer the
debt securities through underwriters, dealers or agents, then Cleary, Gottlieb,
Steen & Hamilton will pass on certain legal matters for the underwriters,
dealers and agents.
EXPERTS
The consolidated financial statements of GATX Capital Corporation
appearing in GATX Capital Corporation's Annual Report (Form 10-K) for the year
ended December 31, 1998 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 on the authority of such
firm as experts in accounting and auditing.
-11-
<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..................................... $ 264,000.00
Accounting fees and expenses ............................ $ 10,000.00*
Legal fees and expenses, including Blue Sky fees and
expenses ............................................ $ 70,000.00*
Printing and engraving fees.............................. $ 15,000.00*
Trustee's fees and expenses ............................. $ 15,000.00*
Rating agency fees ...................................... $ 50,000.00*
Miscellaneous............................................ $ 10,000.00*
Total................................................ $ 434,000.00*
=============
* Estimated.
Item 15.Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, empowers a corporation, subject to certain limitations, to indemnify
its directors and officers against the actual and reasonable expenses of
defending litigation against them in their capacities as directors and officers.
Article VI of the By-Laws of GATX Capital provides in terms similar to
those of Section 145 of the Delaware General Corporation Law that GATX Capital
shall have power to indemnify its directors and officers. In addition, GATX
Capital's directors and officers are insured under directors and officers
liability insurance policies maintained by GATX Corporation.
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 agents or underwriters
may under certain circumstances indemnify the officers and directors of GATX
Capital.
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 GATX Capital'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 GATX Capital's Form S-3 Registration
Statement No. 33-64474).
II-1
<PAGE>
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 GATX Capital'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 GATX Capital's Form 8-K dated October
15, 1997).
4.5 Form of Subordinated Indenture (incorporated by reference to Exhibit
4.3 to GATX Capital's Form S-3 Registration Statement No.
333-34879).
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 Independent Auditors.
24* Power of Attorney (included on page II-5).
25* Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank.
- - - - - - - - ----------
* Filed herewith.
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 SEC 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
II-3
<PAGE>
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
(6) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
310(a) of the Trust indenture Act of 1939 (the "Act") in accordance
with the rules and regulations prescribed by the SEC under Section
305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement and post-effective amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Francisco and State
of California on the 22nd day of December, 1999.
GATX CAPITAL CORPORATION
(Registrant)
By: /s/ JESSE V. CREWS
------------------------------------
Jesse V. Crews, President,
Director and Chief Executive Officer
We, the undersigned officers and directors of GATX Capital Corporation,
hereby severally constitute Thomas C. Nord and Richard M. Tinnon, and either of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
any and all amendments to this registration statement and post-effective
amendment on Form S-3 (including but not limited to post-effective amendments,
prospectus supplements) and any subsequent registration statement to be filed
pursuant to Rule 462(b) of the Securities Act of 1933, as amended (or any
successor thereto) by GATX Capital Corporation for the purpose of registering
under the Securities Act and to file the same, with all exhibits thereto, and
other documents in connection therewith with the Securities and Exchange
Commission, and generally to do all such things in our name and behalf in such
capacities to enable GATX Capital Corporation to comply with the provisions of
the Securities Act, and all requirements of the Securities and Exchange
Commission, and we hereby ratify and confirm our signatures as they may be
signed by our said attorneys, or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and post-effective amendment has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ JESSE V. CREWS President, Chief Executive
- - - - - - - - --------------------------- Officer and Director December 22, 1999
Jesse V. Crews (Principal Executive Officer)
/s/ JACK F. JENKINS-STARK Senior Vice President and Chief
- - - - - - - - --------------------------- Financial Officer (Principal December 21, 1999
Jack F. Jenkins-Stark Financial Officer)
/s/ DELPHINE M. REGALIA Vice President and Controller
- - - - - - - - --------------------------- (Principal Accounting Officer) December 22, 1999
Delphine M. Regalia
/s/ RONALD H. ZECH Chairman of the Board
- - - - - - - - ---------------------------
Ronald H. Zech December 21, 1999
Director
- - - - - - - - ---------------------------
David B. Anderson
/s/ ALAN C. COE Executive Vice President and
- - - - - - - - --------------------------- Director December 22, 1999
Alan C. Coe
/s/ DAVID M. EDWARDS Director
- - - - - - - - ---------------------------
David M. Edwards December 22, 1999
II-5
<PAGE>
/s/ KATHRYN G. JACKSON Executive Vice President and
- - - - - - - - --------------------------- Director December 22, 1999
Kathryn G. Jackson
II-6
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Description of Exhibit Page
- - - - - - - - ------ ---------------------- ------------
1.1* Form of Distribution Agreement.
1.2* Form of Underwriting Agreement.
4.1 Indenture dated as of July 31, 1989 between GATX
Capital Corporation (formerly named GATX Leasing
Corporation) and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4(a) to GATX
Capital'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 GATX Capital'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
GATX Capital'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 GATX Capital's Form 8-K dated October 15,
1997).
4.5 Form of Subordinated Indenture (incorporated by
reference to Exhibit 4.3 to GATX Capital's Form S-3
Registration Statement No. 333-34879).
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 Independent Auditors.
24* Power of Attorney (included on page II-5).
25* Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of The Chase
Manhattan Bank.
- - - - - - - - --------
* Filed herewith.
EXHIBIT 1.1
GATX CAPITAL CORPORATION
$___________
Medium-Term Notes, Series ____
DISTRIBUTION AGREEMENT
________, 2000
Morgan Stanley & Co. Incorporated
1585 Broadway, Second Floor
New York, New York 10036
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Warburg Dillon Read
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the "Company"), confirms
its agreement with you with respect to the issue and sale by the Company of up
to $_________ aggregate principal amount of its Medium-Term Notes, Series ____
Due Nine Months to 30 Years from Date of Issue (the "Notes"). The Notes are to
be issued under an indenture dated as of July 31, 1989, as supplemented and
amended by supplemental indentures dated as of December 18, 1991, 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 Securities and Exchange Commission (the "Commission") subsequent to the date
of the Basic Prospectus pursuant to the Securities Exchange Act of 1934, as
amended (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 (a "Terms
Agreement"). The Company may from time to time offer Notes for sale otherwise
than through the Agents;
<PAGE>
2
provided, however, that (i) so long as this Agreement shall remain in effect,
the Company shall not solicit or accept offers to purchase Notes through any
agent other than the Agents unless such other agent shall have entered into an
agreement with the Company containing terms substantially the same as those set
forth in this Agreement, and (ii) promptly following the acceptance by the
Company of any offer to purchase Notes through any other such agent, the Company
shall provide the Agents with notice in writing or by telecopy of the terms of
such sale. In acting under this agreement and in connection with the sale of any
Notes by the Company (other than Notes sold to an Agent pursuant to a Terms
Agreement), each Agent is acting solely as agent of the Company and does not
assume any obligation towards or relationship of agency or trust with any
purchaser of the Notes or assume any obligation towards, or any liability as the
result of any act or failure to act of, the other Agents.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, the Agents as of the Commencement Date (as defined below), 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 defined below) or the Basic Prospectus (as defined
below) 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 defined
below), 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, as amended (the "Securities Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (Registration No. 333-__________) 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, as amended (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.
(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
<PAGE>
3
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.
(f) Each of this Agreement and any applicable Terms Agreement has
been duly authorized by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity hereunder or thereunder may be limited
under applicable law. Each of this Agreement and any applicable Written Terms
Agreement (as defined in Section 2(b)) has been duly executed and delivered.
(g) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company, is a
valid and binding agreement of the Company, enforceable in accordance with its
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 their terms except as (i) the
<PAGE>
4
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 its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company's knowledge, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all federal
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, as then amended or supplemented, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each Agent will
use its best efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of telephonic notice
confirmed in writing from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Section 5; provided that if the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change
<PAGE>
5
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 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 Terms Agreement or otherwise, is
referred to herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
them in the Medium-Term Notes, Series ___ 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
<PAGE>
6
Company accepts any offer by an Agent to purchase Notes as principal. The date
of delivery of such documents is referred to herein as the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes pursuant
to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to each Agent a copy
thereof for its review and will not file any such proposed amendment or
supplement to which any Agent reasonably objects; provided that (i) the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, which filings the Company will cause to be timely
filed with the Commission and copies of which filings the Company will cause to
be delivered to each Agent promptly after being mailed for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise each Agent (a) of the
filing of any 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 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
<PAGE>
7
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's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earnings statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent without charge two signed
copies of the Registration Statement and all amendments thereto, including
exhibits and any documents incorporated by reference therein, and during the
period mentioned in Section 3(b) above, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto as each Agent may reasonably request.
(e) The Company will qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as each 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 each 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 each Agent may from time to time reasonably request and shall
notify each Agent promptly in
<PAGE>
8
writing of any downgrading or of its receipt of any notice of (A) any intended
or potential downgrading or (B) any review or possible change that does not
indicate the direction of a possible change in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company; (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the reasonable fees and
disbursements of counsel for the Agents incurred in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder.
(h) Between the date of any agreement by an Agent to purchase Notes
as principal and the Settlement Date with respect to such agreement, the Company
will not, without the prior consent of each Agent, offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company substantially similar
to the Notes (other than (i) the Notes that are to be sold pursuant to such
agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's obligation to
solicit offers to purchase the Notes as agent of the Company, each Agent's
obligation to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers made
in each certificate furnished pursuant to the provisions hereof prior to or
concurrently with any such solicitation or purchase, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Notes, at the time of such solicitation, and, in the
case of an Agent's or any other purchaser's obligation to purchase Notes, at the
time the Company accepts the offer to purchase such Notes and at the time of
purchase) and (in each case) to the following additional conditions precedent
when and as specified below:
(a) Prior to such solicitation or purchase, as the case may be,
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made that in the
<PAGE>
9
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 Nasdaq National
Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (B) suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (C) declaration of a general moratorium on commercial banking
activities in New York by either federal or New York state authorities; or
(D) any outbreak or escalation of any hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable
judgment of the relevant Agent or such purchaser, as the case may be, is
material and adverse and, in the case of any of the events described in
clauses (ii)(A) through (D), such event, singly or together with any other
such event, makes it, in the reasonable judgment of such Agent or such
purchaser, as the case may be, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer to
purchase was made;
(iii) There shall not have occurred any downgrading, nor shall
any notice have been given of (A) any intended or potential downgrading or
(B) any review or possible change that does not indicate the direction of
a possible change, in the rating accorded any of the Company's securities
by any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent or such purchaser, as the case may be, before the offer to
purchase such Notes was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to the relevant Agent
prior to such solicitation or, in the case of a purchase of Notes, to the
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
<PAGE>
10
each jurisdiction in which the conduct of its business or the
ownership and leasing of its properties requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
or leasing of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(C) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties 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 the best of such counsel's
knowledge, any judgment, order or decree of any governmental
<PAGE>
11
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 of the Trustee on 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 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
<PAGE>
12
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 the 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 such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). Such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the
State of New York, the General Corporation Law of the State of Delaware
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. 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, if any, in the
Registration Statement, Prospectus, or any amendments or supplements
thereto, "Certain United States Federal Tax Consequences" and with respect
to clauses (3) and (4) of (J) in Section 4(b)(i) above, such counsel may
state that his opinion and belief are based upon his participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated
by reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(ii) The opinion dated as of such date, of __________, 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 opinion,
such counsel may qualify any opinion as to enforceability by stating that
such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
the rights and remedies of creditors and is subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). 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.
<PAGE>
13
(c) On the Commencement Date and, if called for by any agreement by
any Agent to purchase Notes as principal, on the corresponding Settlement Date,
the Company shall have furnished to each Agent a certificate, dated such
Commencement Date or Settlement Date, as the case may be, signed by an executive
officer of the Company to the effect that the representations and warranties of
the Company contained herein are true and correct as of such date and the
Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by
any Agent to purchase Notes as principal, on the corresponding Settlement Date,
the Company's independent public accountants shall have furnished to the
relevant Agent a letter or letters, dated as of the Commencement Date or such
Settlement Date, as the case may be, in form and substance reasonably
satisfactory to each such Agent, containing statements and the information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Prospectus.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents), 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
<PAGE>
14
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.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Agent,
the officers, directors, employees and agents of such 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
<PAGE>
15
proceeding and designated in writing by each of the Agents included in any such
proceeding after consultation with such other Agents who are parties to such
proceeding, in the case of parties indemnified pursuant to paragraph (b) above
and by the Company in the case of parties indemnified pursuant to paragraph (a)
above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses of counsel
as contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein in connection
with any offering of Notes, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agent or Agents, as the case may be, on the other from the offering of the Notes
for which the claim of indemnification or contribution, as the case may be, is
made 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 for which the claim of indemnification or contribution, as
the case may be, is made shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be, on the other shall be determined by reference to,
among other things, whether the untrue or allegedly untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
<PAGE>
16
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 for which the claim of indemnification or
contribution, as the case may be, is made 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. The Agents' obligations pursuant to Section 6(d) hereof to contribute
are several in proportion to the respective amounts of Notes sold with respect
to which a claim for contribution is made, and not joint.
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) (only
with respect to the Company's security holders), 3(g), 6, 7, 9, 11 and 14 shall
survive; provided that if at the time of termination an offer to purchase Notes
has been accepted by the Company but the time of delivery to the purchaser or
its agent of such Notes has not occurred, the provisions of Sections 2(b), 2(c),
3(a), 3(e), 3(f), 3(h), 4 and 5 shall also survive with respect to such Notes
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 with respect to the Notes covered under such Terms
Agreement.
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.
<PAGE>
17
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 Salomon Brothers Inc. at 7 World Trade Center,
New York, New York 10048, Attention: Medium-Term Note Group (telecopy number:
(212) 783-2274); to Chase Securities Inc. at 270 Park Avenue, 8th Floor, New
York, New York 10017-2070, Attention: Medium-Term Note Desk (telecopy number:
(212) 834-6081); to Morgan Stanley & Co. Incorporated at 1585 Broadway, Second
Floor, New York, New York 10036, Attention: Manager, Continuously Offered
Products (telecopy number: (212) 761-0783); and to Warburg Dillon Read at 677
Washington Boulevard, Stamford,CT 06901, Attention: Medium-Term note Group
(telecopy number: (203) 719-0495; or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at Four Embarcadero Center, San
Francisco, California 94111, Attention: Treasurer (telecopy number: (415)
955-3493).
11. Successors. This Agreement and any Terms Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if, but only
if, such amendment or supplement is in writing and is signed by the Company and
each Agent; provided that the Company may from time to time, without the consent
of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under this
Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York applicable to a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
<PAGE>
18
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: Jack F. Jenkins-Stark
Title: Vice President and Chief
Financial Officer
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above-written.
MORGAN STANLEY & CO. INCORPORATED
By ______________________________
Name:
Title:
SALOMON BROTHERS INC
By ______________________________
Name:
Title:
CHASE SECURITIES INC.
By ______________________________
Name:
Title:
WARBURG DILLON READ
By ______________________________
Name:
Title:
<PAGE>
EXHIBIT A
MEDIUM-TERM NOTES, SERIES ___
COMMISSION SCHEDULE
[Note to draft: Commission rates to be determined]
Term Commission Rate
%
From 9 months to less than 1 year .125
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .700
From 20 years to less than 30 years .750
A-1
<PAGE>
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES ___
TERMS AGREEMENT
__________, 20__
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Attention:
Re: Distribution Agreement
dated __________, 2000
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes, Series ___: $
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 Notes, Series ___
Administrative Procedures
Medium-Term Notes, Series ___ (the "Notes") in the aggregate
principal amount of $____________ are to be offered on a continuing basis by
GATX Capital Corporation (the "Company"). Morgan Stanley & Co. Incorporated,
Salomon Brothers Inc, Chase Securities Inc. and Warburg Dillon Read (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 __________, 2000 (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 ___ 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
Payment Date, except that the interest payment at
Maturity will include interest accrued to, but
excluding, such date.
Regular Record Dates: Except as otherwise provided in the applicable
Pricing Supplement, the Regular Record Date with
respect to any Interest Payment Date for a Fixed
Rate Note shall be the
C-2
<PAGE>
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: Except as otherwise provided in the applicable
Pricing Supplement, 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: Except as otherwise provided in the applicable
Pricing Supplement, interest payments on Fixed
Rate Notes will be made semiannually on April 1
and October 1 of each year and at Maturity.
Floating Rate Notes: Unless otherwise stated in the applicable Pricing
Supplement, interest will be payable in the case
of the Floating Rate Notes which reset daily,
weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June,
September and December of each year; in the case
of Floating Rate Notes which reset quarterly, on
the third Wednesday of March, June, September and
December of each year; in the case of Floating
Rate Notes which reset semiannually, on the third
Wednesday of the two months of each year specified
in the Floating Rate Note; and in the case of
Floating Rate Notes which reset annually, on the
third Wednesday of the month specified in the
Floating Rate Note and; in each case, at Maturity
or, if applicable, upon redemption or optional
repayment. For additional special provisions
relating to Floating Rate Notes, see the
Prospectus.
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
C-3
<PAGE>
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.
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
C-4
<PAGE>
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 ______________
(the "Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Interest Rate, Original Issue
Date, Maturity Date, Redemption Date and Prices,
if any, Sinking Fund Dates and 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
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<PAGE>
duly provided for on the predecessor Book-Entry
Note or Notes (or if no such payment or provision
has been made, the Original Issue Date of the
predecessor Book-Entry Note or Notes), regardless
of the date of authentication of such subsequently
issued Book-Entry Note. No Book-Entry Note shall
represent any Note issued in certificated form.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of
approximately 900 CUSIP numbers which have been
reserved for future assignment to Book-Entry Notes
representing Notes issued in book-entry form and
the Company has delivered to the Trustee and DTC
an initial written list of 900 of such CUSIP
numbers. The Company will assign CUSIP numbers to
Book-Entry Notes as described below under
Settlement Procedure B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers
that the Company has assigned to Book-Entry Notes.
The Trustee will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes and, if it
deems necessary, the Company will reserve
additional CUSIP numbers for assignment to
Book-Entry Notes 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)
C-6
<PAGE>
acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Book-Entry Notes Outstanding on such date that
represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may
be (other than Original Issue Dates), and for
which interest has been paid to the same date; (b)
a date, occurring at least 30 days after such
written notice is delivered and at least 30 days
before the next Interest Payment Date for the
related Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged for a
single replacement Book-Entry Note; and (c) a new
CUSIP number, obtained from the Company, to be
assigned to such replacement Book-Entry Note. Upon
receipt of such a notice, DTC will send to its
participants (including the Trustee) a written
notice to the effect that such exchange will occur
on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP
Service Bureau written notice setting forth such
exchange date and the new CUSIP number and 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 $200,000,000 in aggregate principal amount,
one or more replacement Book-Entry Note(s) will be
authenticated and issued, each to represent
$200,000,000 of principal amount of the exchanged
Book-Entry Notes and an additional Book-Entry Note
or Notes will be authenticated and issued to
represent any remaining principal amount of such
Book-Entry Notes (see "Denominations" below).
Denominations: Book-Entry Notes will be issued in denominations
of $100,000 and any larger denomination which is
an integral multiple of $1,000. Book-Entry Notes
will be denominated in principal amounts not in
excess of $200,000,000. If one or more Notes
issued in book-entry form having an aggregate
principal amount in excess of $200,000,000 would
but for the preceding sentence be represented by a
single Book-Entry Note, then one Book-Entry Note
will be issued to represent $200,000,000 principal
amount of such Note or Notes issued in book-entry
form and an additional Book-Entry Note or Notes
will be issued to represent any
C-7
<PAGE>
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,
and Regular Record Dates: September and December of each year, upon request
by the Company, the Trustee will deliver to the
Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur
during the six-month period beginning on such
first Business Day with respect to Floating Rate
Notes issued in book-entry form. Promptly after
each Interest Determination Date or Calculation
Date, if applicable (including the first initial
Interest Determination Date) for Floating Rate
Notes issued in book-entry form, the Trustee will
notify Standard & Poor's Corporation of the
interest rates determined on such Interest
Determination Date or Calculation Date, if
applicable.
C-8
<PAGE>
Payments of Principal and Promptly after each Regular Record Date, the
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 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
C-9
<PAGE>
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 The Company shall have the sole right to accept
Offers: offers to purchase Notes from the Company and may
reject any such offer in whole or in part. Each
Agent shall promptly communicate to the Company,
orally or in writing, each reasonable offer to
purchase Book-Entry Notes from the Company
received by it, other than those rejected by such
Agent. The Agents shall have the right, in their
discretion reasonably exercised, without notice to
the Company, to reject any offer to purchase Notes
in whole or in part.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by the Company through any
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:
C-10
<PAGE>
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option.
4. Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
(o) Original Issue Discount
features, if any
(p) Sinking Fund Dates and Amounts,
if any
5. Price to public of the Note.
6. Trade date.
7. Settlement Date (Original Issue Date).
8. Maturity.
9. Net proceeds to the Company.
10. 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 Trustee 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,
C-11
<PAGE>
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, 3.6, 9.6 and 11.7 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 of such Sections).
C. The Trustee will communicate to DTC and the
Agent through DTC's Participant Terminal
System a pending deposit message specifying
the following settlement information:
1. The information set forth in 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.
C-12
<PAGE>
E. The Trustee will authenticate the Book-Entry
Note representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Presenting Agent maintained by DTC and (ii)
to debit the settlement account of the
Presenting Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of 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-13
<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.
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.
C-14
<PAGE>
Failure to Settle: If the Trustee fails to enter an 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.
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.
C-15
<PAGE>
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.
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.
C-16
<PAGE>
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:
1. Exact name in which the Note is to be
registered (the "Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices
and payments of principal and
interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if any
(k) Minimum Interest Rates, if any
(l) Redemption Dates, if any, and
redemption at whose option
C-17
<PAGE>
(m) Original Issue Discount
features, if any
(n) Sinking Fund Dates and Amounts,
if any
7. Price to public of the Note.
8. Settlement Date (Original Issue Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's commission.
B. The Company shall provide to the Trustee, by
telecopy or other mutually acceptable
method, the above Settlement information
received from the Agent and shall cause the
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-18
<PAGE>
C. The Trustee will complete the preprinted
four-ply Note packet containing the
following documents in forms approved by the
Company, the Presenting Agent and the
Trustee:
1. Note with Agent's customer
confirmation.
2. Stub 1 -- for Trustee.
3. Stub 2 -- for Agent.
4. Stub 3 -- for the Company.
D. With respect to each trade, the Trustee will
deliver the Notes and Stub 2 thereof to the
Presenting Agent at the following applicable
address: in the case of Morgan Stanley & Co.
Incorporated, at 1585 Broadway, Second
Floor, New York, New York 10036, Attention:
Manager, Continuously Offered Products; and
in the case of Salomon Brothers Inc., at 7
World Trade Center, New York, New York
10048, Attention: Medium-Term Note Group; in
the case of Chase Securities Inc., at 55
Water Street, Room 226, New York, New York
10017-2070, Attention: Windows 17 and 18;
and in the case of Warburg Dillon Read, at
677 Washington Boulevard, Stamford, CT
06901, Attention: Randi Nielsen. The Trustee
will keep Stub 1. The Presenting Agent will
acknowledge receipt of the Note through a
broker's receipt and will keep Stub 2.
Delivery of the Note will be made only
against such acknowledgment of receipt. Upon
determination that the Note has been
authorized, delivered and completed as
aforementioned, the Presenting Agent will
wire the net proceeds of the Note after
deduction of its applicable commission to
the Company pursuant to standard wire
instructions given by the Company.
E. The Presenting Agent will deliver the Note
(with confirmations), as well as a copy of
the Prospectus and any applicable Pricing
Supplement received from the Company, to the
purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
C-19
<PAGE>
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 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 the Company
in writing.
C-20
EXHIBIT 1.2
UNDERWRITING AGREEMENT
______________, 2000
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Ladies and Gentlemen:
We (the "Manager") understand that GATX Capital Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $__________ aggregate
principal amount of its ____% Notes due ______ (the "Offered Securities"). The
Offered Securities will be issued pursuant to an Indenture dated as of July 31,
1989, as supplemented and amended by the Supplemental Indenture dated as of
December 18, 1991, the Second Supplemental Indenture dated as of January 2, 1996
and the Third Supplemental Indenture dated as of October 14, 1997, each being
between the Company, as issuer, and The Chase Manhattan Bank, as trustee.
Subject to the terms and conditions, and in reliance upon the representations
and warranties, set forth herein or incorporated by reference herein, the
Company hereby agrees to sell and the underwriters (including ourselves) named
below (such underwriters being herein called the "Underwriters") agree to
purchase, severally and not jointly, the principal amounts of such Offered
Securities set forth opposite their names below at a purchase price of _______%
of the principal amount of the Offered Securities plus accrued interest, if any,
from _____________, 2000 to the date of payment and delivery.
Principal Amount
of Offered Securities
Name to be Purchased
- - - - - - - - ---- ---------------------
Salomon Smith Barney Inc. $
Chase Securities Inc. $____________________
Total: $
Delivery of and payment for the Offered Securities shall be made at 11:00
A.M., New York City time, on _____________, 2000, or such later date (not later
than _____________, 2000) as the Manager shall designate. Delivery of the
Offered Securities shall be made to the Manager for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Manager for the purchase price therefor to or upon the order of the Company by
wire transfer of immediately available funds or by such other manner of payment
as may be agreed upon by the Company and the Manager. Delivery and release of
the Offered Securities shall be to The Depository Trust Company and payment for
such Offered Securities shall be made at the office of Cleary, Gottlieb, Steen &
Hamilton, One Liberty Plaza, New York, NY 10006.
<PAGE>
2
The Offered Securities shall have the terms set forth in the Prospectus
dated _____________, 2000 and the Prospectus Supplement dated _____________,
2000, including the following:
Maturity: _________________, 20__
Interest Rate: _____%
Redemption Provisions Not redeemable
prior to maturity
Interest Payment Dates: ________ and _________
All the provisions contained in the document entitled GATX Capital
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
_____________, 2000, a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
the undersigned.
<PAGE>
3
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Very truly yours,
Salomon Smith Barney Inc.
Chase Securities Inc.
By: SALOMON SMITH BARNEY INC.
By:_____________________________________
Name:
Title:
Acting severally on behalf of themselves and Chase Securities Inc.
Accepted:
By: GATX CAPITAL CORPORATION
By: _____________________________________
Name:
Title:
<PAGE>
GATX CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
_____________, 2000
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 Registration Statement, the
Prospectus or the preliminary prospectus that are filed subsequent to the date
of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
The term "Underwriters' Securities" means the Offered Securities to
be purchased by the Underwriters herein. The term "Contract Securities" means
the Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
<PAGE>
2
II.
The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, complied or will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iv) the Registration Statement
and the Prospectus do not and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section II(b)
do not apply (x) to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning the Underwriters furnished to the
Company in writing by the Underwriters expressly for use therein or (y) to that
part of the Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(d) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 405 of Regulation C promulgated pursuant to the
Securities Act (a "Significant Subsidiary") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
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>
3
(e) This Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company, except as
rights to indemnity and contribution hereunder may be limited under applicable
law.
(f) The Senior Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditor's rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Delayed Delivery Contracts (as defined in Section III
below), if any, have been duly authorized, executed and delivered by the Company
and are valid and binding agreements of the Company, enforceable in accordance
with their respective terms except (i) as the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting or relating to
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(h) The Offered Securities have been duly authorized and, when the
Offered Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the purchasers
thereof, they will conform to the descriptions thereof in the Prospectus, will
be entitled to the benefits of the Indenture and will be valid and legally
binding obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement,
the Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or bylaws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, considered as
one enterprise, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and, to
the best of the Company's knowledge, no consent, approval or authorization of
any governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture or the Offered
Securities, except such as have been obtained under the Securities Act, the
Exchange Act and the Trust Indenture Act and such as may be required under the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities.
(j) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, considered as one enterprise, from that set forth
in the Prospectus.
(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
<PAGE>
4
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 Manager shall receive from the
Company as compensation, for the accounts of the Underwriters, a commission in
the form of a discount as set forth in the Underwriting Agreement in respect of
the principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of the Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
IV.
The Company is advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
<PAGE>
5
V.
Payment for the Underwriters' Securities shall be made by the
several Underwriters through the Manager to or upon the order of the Company by
wire transfer of immediately available funds or by such other manner of payment
as may be agreed upon by the Company and the Manager at the time and place set
forth in the Underwriting Agreement, upon delivery to or as directed by the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of the delivery. 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 accuracy of the representations and warranties on the part of the Company
contained herein as of the date and time the Underwriting Agreement is executed
and delivered by the parties hereto (the "Execution Time") and the Closing Date,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) Subsequent to the Execution Time or, if earlier in the case of
clause (i), the dates as of which information is given in the Registration
Statement and the Prospectus, and on or prior to the Closing Date:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations,
of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented as of the
Execution Time, that, in the reasonable judgment of the Manager, is
material and adverse and that makes it, in the reasonable judgment
of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus, as so
amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading in securities generally on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board Options Exchange, the Chicago
Mercantile Exchange 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 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 reasonable judgment of the
Manager, impracticable to market the Offered Securities on the terms
and in the manner contemplated by the Prospectus;
<PAGE>
6
(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 Cleary, Gottlieb, Steen & Hamilton, counsel for the Underwriters, dated the
Closing Date, with respect to the issuance and sale of the Offered Securities,
the Indenture, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Manager may reasonably
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect that (i) the representations and warranties of the Company
contained herein are true and correct as of such date with the same effect as if
made on such date and the Company has complied with all the agreements and
satisfied all the conditions required by this Agreement to be performed or
satisfied by it at or before such date and (ii) since the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, as amended or supplemented as of the Execution Time, there has been
no material adverse effect on the condition, financial or otherwise, prospects,
earnings, business or properties of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as so amended or supplemented.
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 amendment
or supplement to the Registration Statement or the Basic Prospectus (including
any Prospectus Supplement relating to the Offered
<PAGE>
7
Securities) unless the Company has previously furnished to the Manager a copy
thereof for its review and will not file any such proposed amendment or
supplement to which the Manager reasonably objects; provided that the foregoing
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, which filings the Company will cause to be timely filed with
the Commission and copies of which filings the Company will cause to be
delivered to the Manager promptly after being mailed for filing with the
Commission. Subject to the foregoing sentence, the Company will promptly cause
each Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The Company
will promptly advise the Manager (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 required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading when the Prospectus, as then amended or supplemented, is delivered to
a purchaser, not misleading, or (ii) if, in the opinion of the Manager or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Registration Statement or the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify each Underwriter
by telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Offered Securities or any resale thereof and, if so notified by the
Company, each Underwriter shall forthwith suspend such solicitation or resale
and cease using the Prospectus as then amended or supplemented. The Company
shall, at its expense, prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Underwriter in such quantities as such Underwriter may
reasonably request.
(c) The Company will make generally available to its security
holders and to the Manager as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve-month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the date of the Underwriting Agreement. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earnings
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made
<PAGE>
8
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 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
<PAGE>
9
of the Manager, offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the Offered Securities (other
than (i) the Offered Securities that are to be sold pursuant to such agreement,
(ii) Offered Securities previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the officers, directors, employees and agents of such Underwriter,
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages or liabilities caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof, or in the Prospectus (if
used within the period set forth in paragraph (b) of Section VII) or any
preliminary prospectus, or in any amendment thereof or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
alleged omission based upon information furnished to the Company in writing by
or on behalf of such Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Underwriter, but only with reference to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the actual or potential parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest or (iv) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a
<PAGE>
10
reasonable time after notice of the institution of such proceeding. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to paragraph
(a) above and by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. Failure to notify the indemnifying party as required by the first
sentence of this paragraph (c) (1) will not relieve the indemnifying party from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (2) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Offered Securities, then the Company and the
Underwriters severally agree that each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Underwriters in
respect thereof, in each case as set forth in the Prospectus, bear to the total
aggregate public offering price of such Offered Securities. The relative fault
of the Company on the one hand and of the Underwriters on the
<PAGE>
11
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,
the American Stock Exchange, the Nasdaq National Market, the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New 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.
This Agreement may be signed in any number of counterparts, each of
which shall
<PAGE>
13
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
__________, _______
Ladies and Gentlemen:
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 _________, _____ and Prospectus
Supplement dated __________, ______, receipt of copies of which are hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- --------------
......... $......... ..............
......... $......... ..............
......... $......... ..............
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by wire transfer of
immediately available funds or by such other manner of payment as may be agreed
upon by the Company and the undersigned at the office of __________, New York,
N.Y. at 10:00 a.m. (New York time) on the Delivery Date, upon delivery to or as
directed by the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the juris diction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
<PAGE>
15
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 com pletion 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>
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 ____, 2000, 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 have been obtained under the Securities Act, the Exchange Act and
the Trust Indenture Act and such as may be required under the securities or Blue
Sky laws of the various states in connection with the offer and sale of the
Offered Securities.
(v) To the best of such counsel's knowledge, after due inquiry, there are
no legal governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus, as amended or
<PAGE>
2
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 have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters [or by institutional
investors, if any, pursuant to Delayed Delivery Contracts], will be valid 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 and from Part II -- Item 1 of
the Company's most recent quarterly report on Form 10-Q, insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings, and fairly summarize the matters
referred to therein.
(xi) Such counsel (1) is of the opinion that each document, if any, filed
pursuant to the Exchange Act (except as to financial statements and schedules,
as to which such counsel need not express any opinion) and incorporated by
reference in the Prospectus is appropriately responsive in all material respects
with such Act and the rules and regulations thereunder, (2) believes that
(except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) each part of the registration statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) is appropriately responsive in all material
respects with the Securities Act and the applicable rules and regulations
thereunder and (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
<PAGE>
3
applicable, on the Closing Date does not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that such counsel may state that his opinion and
belief is based upon his participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and upon
review and discussion of the contents thereof, but is without independent check
or verification except as otherwise specified, including without limitation, the
independent check or verification of the mathematical computations contained in
the Registration Statement and the Prospectus. With respect to clause (4), such
counsel may state its opinion in the negative.
(xii) The Company is not and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
The Registration Statement is effective under the Act, and to my
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued or proceedings therefor initiated by the Commission.
In rendering such opinion, such counsel may qualify any opinion as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the States of New York and
California, the federal law of the United States and the Delaware General
Corporation Law (including the applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting that Law) upon
opinions of other counsel (copies of which shall be delivered to each
Underwriter), who shall be counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
EXHIBIT 4.6
FORM OF DEBT SECURITY
[FACE OF SECURITY]
GATX CAPITAL CORPORATION
[If applicable, insert--FOR PURPOSES OF THE ORIGINAL ISSUE DISCOUNT
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, THE ISSUE PRICE OF THIS
SECURITY IS __% OF ITS PRINCIPAL AMOUNT AT STATED MATURITY SET FORTH BELOW (ITS
"PRINCIPAL AMOUNT"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS __% OF ITS
PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS ___% AND THE ISSUE DATE IS
_______________]
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT--THIS NOTE IS A GLOBAL
SECURITY. IT IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY (AS HEREINAFTER DEFINED) OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
GATX Capital Corporation, a Delaware Corporation (herein called the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to [If the Security is to be in registered form, insert-- , or registered
assigns] [If the Security is to be in bearer form, insert-- the bearer hereof
upon surrender], the principal sum of _______ Dollars on ---------.
[If the Security is to bear interest at a fixed rate prior to maturity,
insert--, and to pay interest thereon from _________ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for
semi-annually on ___________ and ___________ in each year commencing __________,
_____, at the rate of ___% per annum until the principal hereof is paid or made
available for payment.]
-1-
<PAGE>
[If the Security is to bear interest at an adjustable rate prior to
Maturity, insert -- , and to pay interest thereon from ______ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at a rate per annum determined as provided below, semi-annually on _______
and _______ in each year, commencing _____________, _____, until the principal
hereof is paid or made available for payment.]
[Interest on the Securities is payable at the rate of __% per annum from
__________ through __________, and for each __ month period from __________,
through __________, at a rate per annum (rounded to the nearest five hundredths
of a percentage point) equal to __% of the Year Treasury Rate (as defined below)
or the Alternate Treasury Rate (as defined on the reverse side hereof), as the
case may be, or such higher rate as may be established by the Company as set
forth below.]
[The "Year Treasury Rate" applicable to any _____ month period commencing
__________, __________, or __________ shall be the most recent Weekly Treasury
Rates for constant maturities of years published during the period of the ten
calendar days ending on the _________ (or, if such is not a Business Day, the
next preceding Business Day) next preceding such _________. "Weekly Treasury
Rates" means the weekly average yield to maturity values adjusted to a constant
maturity of a fixed number of years as read from the yield curves of the most
actively traded marketable U.S. Treasury fixed interest rate securities
constructed daily by the U.S. Treasury Department as published by the Federal
Reserve Board or any Federal Reserve Bank or by any United States Department or
agency. In ________, ________, Weekly Treasury Rates were published by the
Federal Reserve Board weekly in "Statistical Release H.15 (519), Selected
Interest Rates" as "U.S. Government securities--Treasury constant maturities."]
[If the Trustee determines in good faith that for any reason the Weekly
Treasury Rates for constant maturities of ________ years are not published as
provided above during the ten calendar day period specified above preceding the
__________ on which any such ________ month period commences, interest on the
Securities for such ________ month period will be based on the Alternate
Treasury Rate determined as of such ___________ (or, if such is not a Business
Day, the next preceding Business Day) in the manner set forth on the reverse
hereof. As promptly as practicable, the Trustee shall calculate or cause to be
calculated the year Treasury Rate or the Alternate Treasury Rate applicable to
each ________ month period. The determination of such Rate shall be confirmed in
writing by independent accountants of recognized standing selected by the
Trustee and such Rate as so confirmed shall be binding upon the Company and the
Holders.]
[If the Trustee determines in good faith that for any reason neither the
Year Treasury Rate nor the Alternate Treasury Rate can be determined for any
________ month period, then the rate of interest shall be determined by the
Company. In addition, the Company may elect a higher rate of interest for the
Securities than that calculated on the basis of the Year Treasury Rate or the
Alternate Treasury Rate. The Company shall make such interest rate
determinations or elections by delivery to the Trustee of an Officers'
-2-
<PAGE>
Certificate on or before the _________ preceding commencement of the ________
month period in which such interest rate will apply.]
[After the interest rate for any ________ month period has been
determined, the Trustee will cause such rate to be published in an Authorized
Newspaper in, on or about each __________ prior to the commencement of the
________ month period to which it applies. The Company will cause notice of such
rate of interest to be enclosed with interest payment checks next mailed to the
Holders of the Securities after such rate has been determined.]
[If the Security is to bear interest at a floating rate above the
secondary market rate for T-Bills or the auction rate for such Bills, insert--,
and to pay interest thereon, to the extent permitted by law, at the rate of [___
basis points above] [(____) % of] the weighted average per annum [discount rate]
[bond yield equivalent rate] for direct obligations of the United States with a
maturity of ________ computed on the basis of a [365 or 366-day year, as the
case may be,] [360-day year] [and applied on a daily basis] (the "________
Treasury Bill Rate") [based on results of the most recent auction of] [set in
the secondary market for] ________________ [month] [day] U.S. Treasury Bills as
published by the Board of Governors of the Federal Reserve System or (if not so
published) as reported by the Department of the Treasury or any Federal Reserve
Bank or the United States Government department or agency. [The interest rate
will be adjusted on the calendar day following each auction of ________________
[month] [day] U.S. Treasury Bills.] [The interest rate will be adjusted on the
calendar day following each auction of ________ [month] [day] U.S. Treasury
Bills.] [The interest rate in effect for the period from ________ through the
date of the first ________ auction after such date shall be based upon the
results of the most recent ________ auction prior to such date; and the interest
rate in effect for the ________ days immediately prior to Maturity shall be
based upon the results of the most recent ________ auction held prior to the
days preceding Maturity.]
[If the Security is to bear interest at a floating rate, insert--In the
event that the [________] day [___] Treasury Bill Rate ceases to be published or
reported as provided above, then the rate of interest in effect at the time of
the last such publication or report will remain in effect until such time, if
any, as such Treasury Bill Rate shall again be so published or reported.]
[The interest rate applicable to each ________ will be determined as
promptly as practicable by the Company as described herein and the Company will
furnish the Trustee with an Officers' Certificate setting forth the interest
rate applicable to each ________ promptly after such rate has been determined.]
[If the Security is to bear interest prior to Maturity, insert--The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Security is registered at the
close of business on the ________ or (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date; 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
-3-
<PAGE>
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.]
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for.]
Payment of the principal of (and premium, if any, on) and [any such]
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in ________, in such coin or currency of [the United
States of America] as at the time of payment is legal tender for payment of
public and private debts [; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually executed
by or on behalf of the Trustee under the Indenture referred to on the reverse
hereof, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GATX Capital Corporation
By:___________________________________
[Title]
Attest and Countersign:
By: _________________________
Secretary
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<PAGE>
[Form of Reverse of Security.]
GATX CAPITAL CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of _______________ (herein called the
"Indenture"), between the Company and
________________________________________________, as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $________].
[If the Security is to be subordinated, insert--The indebtedness evidenced
by this Security is, to the extent and in the manner set forth in the Indenture,
expressly subordinated and subject in right of payment to the prior payment in
full of all Senior Indebtedness (as defined in the Indenture) of the Company.
This Security is issued subject to such provisions of the Indenture, and each
Holder of this Security, by accepting the same, agrees to and shall be bound by
such provisions and authorizes and directs the Trustee on the Holder's behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
such subordination as provided in the Indenture and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.]
If the Security is to bear interest at an adjustable rate prior to
Maturity, insert--If the Trustee determines in good faith for any reason that
the Weekly Treasury Rates for _____ year constant maturities are not published
by the Federal Reserve Board or any Federal Reserve Bank or any United States
Government department or agency during the period of ten calendar days ending on
the ________ (or, if the ________ is not a Business Day, the next preceding
Business Day) next preceding the ________ on which a _____ month period for
which the interest rate on the Securities is being fixed commences, the
Securities shall bear interest, at a rate per annum (rounded to the nearest five
hundredths of a percentage point) during such ________ month period of ___% of
the Alternate Treasury Rate for such ________ month period.]
[The "Alternate Treasury Rate" applicable to any ________ month period
commencing ________, ________, . . . and ________ means the yields to maturity
of the daily closing bids (or less frequently if daily quotations shall not be
available), quoted by at least three recognized U.S. Government securities
dealers selected by the Trustee, during a period of seven calendar days, for all
marketable U.S. Treasury securities with a maturity date of at least ________
months but not more than ________ months from the date of the determination
(other than securities which can, at the option of the holder, be surrendered at
face value in payment of any federal estate tax). The seven calendar day period
shall be the seven calendar days ending on the (or, if the ________ is not a
Business Day, the next preceding Business Day) next preceding the ________ on
which a ________ month period
-5-
<PAGE>
for which the interest rate on the Securities is being fixed commences. Maturity
means the date on which the security becomes due.]
[In determining that any Weekly Treasury Rates are not published, the
Trustee may rely conclusively on any written advice from the United States
Treasury to such effect.]
[If the Security is to be subject to redemption only at the option of the
Company or any sinking fund redemption will be at the same prices, insert--The
Securities of this series are subject to redemption upon not less than 30 days'
nor more than 60 days' notice provided in the manner set forth in the Indenture,
[(1) on ________ in any year commencing with the year ________ and ending with
the year ________ through operation of the sinking fund for this series at the
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after ________, ________], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ________, __%, and if redeemed]
during the 12-month period beginning ________ of the years and thereafter at a
Redemption Price equal to ___% of the principal amount together in the case of
any such redemption [(whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities of record at the close of business
on the relevant record dates referred to on the face hereof, all as provided in
the Indenture.]
[If the Security is to be subject to redemption at the option of the
Company and pursuant to a sinking fund at different prices, insert--The
Securities of this series are subject to redemption upon not less than 30 days'
nor more than 60 days' notice, provided in the manner set forth in the Indenture
(1) on ________ in any year commencing with the year ________ and ending with
the year ________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning in the years indicated, and thereafter at a Redemption Price equal to
__% of the principal amount, together in the case of any such redemption
(whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]
[If there is to be a sinking fund, insert--The sinking fund for this
series provides for the redemption on ________ each year beginning with the year
________ and ending with the year ________ of [not less than] $________
("mandatory sinking fund") and not more than $________] aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking
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<PAGE>
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made.]
[If the Security is to be redeemable in part, insert--In the event of
redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is to bear interest at a floating rate, insert--If on any
date on which a [________ day] [___] Treasury Bill Rate is to be determined,
such rate is for any reason not determinable as provided on the face hereof, (a)
the Company, at its option, may redeem the Security upon not less than nor more
than ________ days' prior notice, as a whole [or from time to time in part in
increments of $________,] at a redemption price equal to [insert appropriate
prices and table, if any], together in the case of any such redemption with
accrued interest to the Redemption Date (but interest installments whose Stated
Maturity is on the Redemption Date will be payable to the Holder of such
Security of record at the close of business on the relevant record date referred
to on the face hereof), all as provided in the Indenture, such right of
redemption to be exercisable until ________; (b) the Security shall be subject
to repayment in whole [or in parts in increments of $________] on any ________
or ________, at the option of the Holder thereof, at a price equal to [insert
appropriate repayment prices and table, if any] (the "Repayment Price"),
together with interest payable to the Repayment Date (but interest installments
whose Stated Maturity is on the Repayment Date will be payable to the Holder of
such Security of record at the close of business on the relevant record date
referred to on the face hereof), all as provided in the Indenture, such option
to be exercisable until ________; (c) the rate of interest in effect at the time
a [________ day] [__] Treasury Bill Rate becomes indeterminable shall remain in
effect until a new [________ day] [__] Treasury Bill Rate may be determined as
provided on the face hereof, and (d) the Company will promptly deliver an
Officers' Certificate to the Trustee certifying its inability to determine the
[________ day] [__] Treasury Bill Rate and notify the Holders of such inability
and of the redemption, repayment and interest rate provisions set forth in (a),
(b), and (c) above.]
[If the Security is to be subject to repayment at the option of the Holder
other than when a floating rate is not determinable, insert--This Security is
also subject to repayment in whole [or in part in increments of $________] on
[________, ________, or ________,] [any ________ or ________, commencing on
________,] at the option of the Holder hereof at a price equal to [insert
appropriate repayment prices and table, if any] (the "Repayment Price"),
together with interest payable to the Repayment Date (but interest installments
whose Stated Maturity is on the Repayment Date will be payable to the Holder of
such Security of record at the close of business on the relevant record date
referred to on the face hereof), all as provided in the Indenture.]
[If the Security is to be subject to repayment at the option of the
Holder, insert--To be repaid at the option of the Holder, the Company must
receive this Security, with the form of "Option to Elect Repayment" hereon duly
completed, at an office or agency of the Company maintained for that purpose in
________ (or at such other place of which the Company shall from time to time
notify the Holder of this Security) not less than nor more
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<PAGE>
than ________ days prior to the Repayment Date. The exercise of the repayment
option by the Holder shall be irrevocable.
[If the Security is not to be subject to redemption at the option of the
Company, insert--The Securities are not redeemable at the option of the Company
prior to Maturity.]
[If the Security is not to be an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is to be an Original Issue Discount Security, insert--If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of not less than 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[If the Security is to be in registered form, insert--As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any, on) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing,
-8-
<PAGE>
and, thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
[The Securities of this series are issuable only in registered form
[without coupons] in denominations of $________ [and any integral multiple] [or
increments of $________ in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.]
[No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.]
[If the Security is a Global Security, insert--"Global Security" and
"Global Securities" means a Security or Securities evidencing all or a part of a
series of Securities, issued to the Depositary (as hereinafter defined) for such
Series or its nominee, and registered in the name of such Depositary or its
nominee. "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as the Depositary by the Company.
No holder of any beneficial interest in this Note held on its behalf by a
Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
This Note is exchangeable, in whole but not in part, for Notes registered
in the names of Persons other than the Depositary or its nominee or in the name
of a successor to the Depositary or a nominee of such successor depositary only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Note or if at any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and, in either case, a successor depositary is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence, it
shall be exchangeable for Notes issuable
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<PAGE>
in authorized denominations and registered in such names as the Depositary
holding this Note shall direct. Subject to the foregoing, this Note is not
exchangeable, except for a Note or Notes of the same aggregate denominations to
be registered in the name of such Depositary or its nominee or in the name of a
successor to the Depositary or a nominee of such successor depositary.]
[The Indenture entitles Holders to receive annual reports with respect to
the Trustee's eligibility and qualifications to serve as Trustee. Such reports
shall be mailed to all Holders of Securities, as the names and addresses of such
holders appear in the security register.
No recourse shall be had for the payment of the principal of (and premium,
if any, on) or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security, including without limitation the obligation of the Company
contained herein to pay the principal of (and premium, if any, on) and interest
on this Security in accordance with the terms hereof and of the Indenture, shall
be construed in accordance with and governed by the laws of the State of New
York.
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<PAGE>
[Form of Trustee's Certificate of Authentication.]
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
As [Authenticating Agent for] the Trustee
By: _________________________
Authorized Officer
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<PAGE>
[Form of Option to Elect Repayment.]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Repayment Date, to the undersigned, at
________________________________________________________________________________
(Please Print or Typewrite Name and Address of the Undersigned)
For this Security to be repaid, the Company must receive this Security,
with this "Option to Elect Repayment" form duly completed, at an office or
agency of the Company maintained for that purpose in _________, or at such other
place of which the Company shall from time to time notify the Holder, no less
than ___ days nor more than ____ days prior to [_______, _____, . . . or
_______] [the ________ or _________ (commencing on _______)].
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be $__________, or an integral
multiple of $_______) which the Holder elects to have repaid: $______________.
Dated:
Note: The signature must correspond with the
name as written upon the face of the Security in
every particular without alteration or
enlargement.
-12-
EXHIBIT 4.7
FORM OF MEDIUM-TERM NOTE (FIXED RATE)
REGISTERED Principal Amount: $
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT -- UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT 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 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.]
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<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 __________ and ____________ 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 ________ or __________ 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 __________ or
the ____________, 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
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<PAGE>
Payment Date would fall on a day that is not a Business Day, such Interest
Payment Date shall be the following day that is a Business Day. Any such
interest which is payable, but is not punctually paid or duly provided for on
any Interest Payment Date, shall forthwith cease to be payable to the registered
holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to the Holder of this
Note not less than ten days prior to such Special Record Date, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note shall be made at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for the payment of public
and private debt; provided, however, that payment of interest on any Interest
Payment Date (other than the Maturity Date or Redemption Date, if any) may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
The principal hereof and interest due at maturity shall be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the law of
the State of New York.
This Note is one of the _% 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.
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<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, ATTEST:
as Trustee
By:___________________________ By: __________________________
Authorized Signatory Secretary
-4-
<PAGE>
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, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto,
reference is hereby made for a statement of the respective rights and
limitations of rights, duties and immunity 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 Outstanding
Notes having such terms as specified by the Company not previously called for
redemption, by such
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<PAGE>
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
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
GATX CAPITAL CORPORATION
FORM OF
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
Check box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation (55 Water Street, New York,
New York) ("DTC"), 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 in such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest therein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
- 1 -
<PAGE>
ORIGINAL ISSUE DATE: ISSUE PRICE: % STATED MATURITY
DATE:
BASE RATE: INITIAL INTEREST RATE: INTEREST PAYMENT
DATES:
REGULAR RECORD DATES: INTEREST DETERMINATION CALCULATION DATES:
DATES:
MAXIMUM RATE: MINIMUM RATE: INTEREST RESET PERIOD:
INTEREST RESET DATES: INITIAL INTEREST RESET SPREAD MULTIPLIER:
DATE:
SPREAD: +/- INDEX MATURITY: DESIGNATED CMT
MATURITY INDEX AND
DESIGNATED TELERATE
PAGE (Only applicable if
the Base Rate is CMT):
DESIGNATED LIBOR PAGE INDEX CURRENCY:(Only CALCULATION AGENT:
(Only applicable if the applicable if the Base
Base Rate is LIBOR): Rate is LIBOR):
[ ] LIBOR Telerate (p. __)
[ ] LIBOR Reuters (p. __)
OPTIONAL REDEMPTION (at INITIAL REDEMPTION DATE INITIAL REDEMPTION
option of Company): (at option of Company): PERCENTAGE:
ANNUAL REDEMPTION SINKING FUND: OPTION TO ELECT
PERCENTAGE REDUCTION: REPAYMENT:
OPTIONAL REPAYMENT MINIMUM DEPOSITARY
DATE(S): DENOMINATIONS: (Only applicable if this
[ ] $1,000 Security is a Global
[ ] Other Security):
SPECIFIED CURRENCY:
- 2 -
<PAGE>
OTHER/ADDITIONAL ADDENDUM ATTACHED:
TERMS:
GATX CAPITAL CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred
to),for value received, hereby promises to pay to
______________________________, or registered assigns, the principal sum of
__________________________________Dollars ($_____________) on the Stated
Maturity Date shown above (except to the extent redeemed or repaid prior to such
date) and to pay interest, if any, on the Interest Payment Dates specified
above, commencing with the first Interest Payment Date specified above following
the Original Issue Date specified above, and at Maturity, on the principal
amount hereof at such offices and agencies, at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above following the Original Issue Date specified above and thereafter
at a rate per annum determined in accordance with the provisions on the reverse
hereof under the heading "Determination of CD Rate," "Determination of
Commercial Paper Rate," "Determination of Federal Funds Rate," "Determination of
LIBOR," "Determination of Prime Rate," "Determination of Treasury Rate,"
"Determination of CMT Rate," or "Determination of EURIBOR" depending upon
whether the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate,
LIBOR, Prime Rate, Treasury Rate, CMT Rate or EURIBOR, as specified above.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on, this Security is
payable by the Company in the Specified Currency specified above.
Any Interest Payment Date specified above that would fall on a day that is
not a Business Day, other than an Interest Payment Date that is also the date of
Maturity, shall be the following day that is a Business Day, except that, if the
Base Rate specified above is LIBOR and such following Business Day is in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day. If the date of Maturity would fall on a
day that is not a Business Day, the payment of principal and any premium and
interest shall be made on the following Business Day, with the same force and
effect as if made on the due date, and no additional interest shall accrue on
the amount so payable for the period from and after such date of Maturity. For
purposes of this Security, "Business Day" means (a) any day other than a
Saturday, Sunday or a legal holiday or a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York or
___________________, and (b) if the Base Rate specified above is LIBOR, any such
day which is also a London Banking Day.
- 3 -
<PAGE>
For purposes of this Security, ("London Banking Day" means any day on which
dealings in deposits in the Index Currency specified above are transacted in the
London interbank market).
Interest payments on this Security shall be the amount of interest accrued
from and including the Original Issue Date specified above or from and including
the last date to which interest has been paid, or provided for, as the case may
be, to but excluding, the following Interest Payment Date or the date of
Maturity. If this Security has been issued upon transfer of, in exchange for, or
in replacement of, a Predecessor Security, interest on this Security shall
accrue from the last Interest Payment Date to which interest was paid on such
Predecessor Security or, if no interest was paid on such Predecessor Security,
from the Original Issue Date specified above.
Subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, the interest so payable on any Interest Payment Date shall be
paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date (whether or not a Business Day) next
preceding such Interest Payment Date, and interest payable upon the Maturity
(whether or not such date of Maturity is an Interest Payment Date) shall be paid
to the Person to whom principal is payable; provided, however, that the first
payment of interest on a Security originally issued and dated between a Regular
Record Date specified above and an Interest Payment Date shall be due and
payable on the Interest Payment Date following the next succeeding Regular
Record Date to the registered owner on such next succeeding Regular Record Date.
Unless otherwise specified on the face hereof, "Regular Record Date" shall mean
the fifteenth calendar day (whether or not a Business Day)immediately preceding
the related Interest Payment Date.
Any interest not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (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 Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly provided
for, the Company shall at all times maintain a Paying Agent (which Paying Agent
may be the Trustee) in The City of New York. The Company has initially appointed
The Chase Manhattan Bank as the Paying Agent at its offices at
____________________________________.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security shall be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
- 4 -
<PAGE>
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) shall be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series, by wire
transfer of immediately available funds to such account as may have been
designated by such Holder. Any such designation for wire transfer purposes shall
be made by filing the appropriate information with the Paying Agent at its
corporate trust office not later than 15 calendar days prior to the applicable
Interest Payment Date and, unless revoked by written notice to the Paying Agent
received by the Paying Agent on or prior to the Regular Record Date immediately
preceding the applicable Interest Payment Date, shall remain in effect with
respect to any further payments with respect to this Security payable to such
Holder. Payment of principal of and interest, if any, on this Security at
Maturity shall be made against presentation of this Security at the office or
agency of the Company maintained for that purpose in _____________.
The Company shall pay any administrative costs imposed by banks on payors
in making payments on this Security in immediately available funds and the
Holder of this Security will pay any administrative costs imposed by banks on
payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security shall be borne by the Holder of
this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
GATX CAPITAL CORPORATION
By:_________________________________
Name:
Title:
Attest:_____________________________
Name:
Title:
- 5 -
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:______________________________________
Authorized Signature
- 6 -
<PAGE>
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due Nine Months or More From Date of Issue
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of July 31, 1989, as amended or supplemented
by the Supplemental Indentures dated as of December 18, 1991, January 2, 1996
and October 14, 1997, and as may be further amended or supplemented from time to
time (herein called the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto, reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series of the Securities, which series is limited to an aggregate
principal amount of $_____________ or the equivalent thereof in one or more
foreign or composite currencies, designated as Medium-Term Notes, Series __, of
the Company. The Securities of this series may mature at different times, bear
interest, if any, at different rates, be redeemable at different times or not at
all, be repayable at the option of the Holder at different times or not at all,
be issued at an original issue discount and be denominated in different
currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
Interest Rate Reset
The interest rate in effect from the Original Issue Date to the Initial
Interest Reset Date specified on the face hereof shall be the Initial Interest
Rate specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof following the Original Issue Date specified on
the face hereof, the rate at which interest on this Security is payable shall be
adjusted daily, weekly, monthly, quarterly,
- 7 -
<PAGE>
semi-annually or annually as specified on the face hereof under "Interest Reset
Period". Each such adjusted rate shall be applicable from and including the
Interest Reset Date to which it relates to but not including the next succeeding
Interest Reset Date or until Maturity, as the case may be. Subject to applicable
provisions of law and except as specified herein, on each Interest Reset Date,
the rate of interest on this Security shall be the rate determined with respect
to the Interest Determination Date next preceding such Interest Reset Date in
accordance with the provisions of the applicable heading below and adjusted by
the addition or subtraction of the Spread, if any, specified on the face hereof,
and/or by the multiplication by the Spread Multiplier, if any, specified on the
face hereof.
If any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be the following Business Day, except that
if the Base Rate specified above is LIBOR and if such following Business Day is
in the next calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
Accrued interest shall be calculated by multiplying the principal amount
by an accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
interest is being paid. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest rate
(expressed as a decimal) applicable to such day by 360, if the Base Rate is the
CD Rate, the Commercial Paper Rate, EURIBOR, the Federal Funds Rate, LIBOR or
the Prime Rate or by the actual number of days in the year, if the Base Rate is
the Treasury Rate or the CMT Rate.
Unless otherwise specified on the face hereof, all percentages resulting
from any calculation referred to herein shall be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with five one-millionths
of one percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)being rounded to
9.87654% (or .0987654)), and all dollar amounts used in or resulting from any
such calculation on this Security shall be rounded to the nearest cent (with
one-half cent being rounded upwards).
Notwithstanding the foregoing, the interest rate per annum hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date.
The interest rate on this Security shall in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent shall provide
to the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate
- 8 -
<PAGE>
that shall become effective on the next Interest Reset Date with respect to this
Security. The Calculation Agent's determination of any interest rate shall be
final and binding in the absence of manifest error.
Determination of CD Rate
If the Base Rate specified on the face hereof is CD Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CD Interest Determination Date") shall
equal the rate on such date for negotiable certificates of deposit having the
specified Index Maturity as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates" or
any successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)") under the heading "CDs (Secondary Market)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
o If the above rate is not published in H.15(519) by 9:00 a.m., New York
City time, on the Calculation Date, the CD Rate shall be the rate on the
applicable CD Interest Determination Date set forth in the daily update of
H.15(519), available through the world wide website of the Board of
Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication ("H.15 Daily Update"), or another recognized electronic source
used for the purpose of displaying this rate, for the day in respect of
certificates of deposit having the Index Maturity specified on the face
hereof under the caption "CDs (Secondary Market)."
o If such rate is not yet published in either H.15(519) or the H.15 Daily
Update or another recognized electronic source by 3:00 p.m., New York City
time, on the Calculation Date, then the Calculation Agent shall determine
the CD Rate to be the arithmetic mean of the secondary market offered
rates as of 10:00 a.m., New York City time, on such CD Interest
Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in New York City selected by the
Calculation Agent for negotiable certificates of deposit in a denomination
of $5,000,000 of major United States money center banks of the highest
credit standing (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity specified on the
face hereof.
o If the dealers selected by the Calculation Agent are not quoting as
mentioned immediately above, the CD Rate in effect immediately prior to
such CD Interest Determination Date shall not change and shall remain the
CD Rate in effect on such CD Interest Determination Date.
Determination of Commercial Paper Rate
If the Base Rate specified on the face hereof is Commercial Paper Rate,
the interest rate per annum determined with respect to any Interest
Determination Date
- 9 -
<PAGE>
specified on the face hereof (each, a "Commercial Paper Interest Determination
Date") shall equal the Money Market Yield (calculated as described below) of the
rate on such date for commercial paper having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading "Commercial
Paper--Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City time, on
the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on the applicable Commercial Paper Interest
Determination Date for commercial paper having the Index Maturity
specified on the face hereof as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying this rate,
under the heading "Commercial Paper--Nonfinancial."
o If by 3:00 p.m., New York City time, on such Calculation Date such rate is
not yet published in either H.15(519) or H.15 Daily Update or another
recognized electronic source, then the Calculation Agent shall determine
the Commercial Paper Rate to be the Money Market Yield of the arithmetic
mean of the offered rates of 11:00 a.m., New York City time, on such
Commercial Paper Interest Determination Date of three leading dealers of
commercial paper in New York City selected by the Calculation Agent for
commercial paper having the Index Maturity specified on the face hereof
placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized statistical rating agency.
o If the dealers selected by the Calculation Agent are not quoting as
mentioned immediately above, the Commercial Paper Rate in effect
immediately prior to such Commercial Paper Interest Determination Date
shall not change and shall remain the Commercial Paper Rate in effect on
such Commercial Paper Interest Determination Date.
"Money Market Yield" will 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 applicable 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.
EURIBOR Notes
If the Base Rate specified on the face hereof is EURIBOR, the interest
rate per
- 10 -
<PAGE>
annum determined with respect to any Interest Determination Date specified on
the face hereof (each, an "EURIBOR Interest Determination Date") shall be based
on EURIBOR and any spread and/or spread multiplier and will be subject to the
minimum interest rate and the maximum interest rate, if any.
As of the EURIBOR Interest Determination Date, EURIBOR shall be: the rate
for deposits in euros as sponsored, calculated and published jointly by the
European Banking Federation and ACI-The Financial Market Association, or any
company established by the joint sponsors for purposes of compiling and
publishing those rates, for the index maturity specified in the applicable
pricing supplement as that rate appears on the display on Bridge Telerate, Inc.,
or any successor service, on page 248 or any other page as may replace page 248
on that service, which is commonly referred to as "Telerate Page 248," as of
11:00 a.m. (Brussels time).
The following procedures will be followed if the rate cannot be determined
as described above:
o If the above rate does not appear, the calculation agent will request the
principal Euro-zone office of each of four major banks in the Euro-zone
interbank market, as selected by the calculation agent, after consultation
with us, to provide the calculation agent with its offered rate for
deposits in euros, at approximately 11:00 a .m. (Brussels time) on the
interest determination date, to prime banks in the Euro-zone interbank
market for the index maturity specified in the applicable pricing
supplement commencing on the applicable interest reset date, and in a
principal amount not less than the equivalent of US$1 million in euro that
is representative of a single transaction in euro, in that market at that
time. If at least two quotations are provided, EURIBOR will be the
arithmetic mean of those quotations.
o If fewer than two quotations are provided, EURIBOR will be the arithmetic
mean of the rates quoted by four major banks in the Euro-zone, as selected
by the calculation agent, after consultation with us, at approximately
11:00 a.m. (Brussels time), on the applicable interest reset date for
loans in euro to leading European banks for a period of time equivalent to
the index maturity specified in the applicable pricing supplement
commencing on that interest reset date in a principal amount not less than
the equivalent of U.S.$1 million in euro.
o If the banks so selected by the calculation agent are not quoting as
mentioned in the previous bullet point, the EURIBOR rate in effect for the
applicable period will be the same as EURIBOR for the immediately
preceding interest reset period, or, if there was no interest reset
period, the rate of interest will be the initial interest rate.
"Euro-zone" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community, as amended by the treaty on European Union.
- 11 -
<PAGE>
Determination of Federal Funds Rate
If the Base Rate specified on the face hereof is Federal Funds Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Federal Funds Interest Determination
Date") shall equal the rate on that day for federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)."
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City time, on
the Calculation Date, the Federal Funds Rate shall be the rate on the
applicable Federal Funds Interest Determination Date as published in H.15
Daily Update, or another recognized electronic source used for the purpose
of displaying this rate, under the heading "Federal Funds/(Effective)." If
such rate is not yet published in either H.15(519) or H.15 Daily Update or
another recognized electronic source by 3:00 p.m., New York City time, on
the Calculation Date, the Calculation Agent shall determine the Federal
Funds Rate to be the arithmetic mean of the rates for the last transaction
in overnight U.S. dollar Federal Funds arranged by each of three leading
brokers of U.S. dollar Federal Funds transactions in New York City
selected by the Calculation Agent prior to 9:00 a.m., New York City time,
on such Federal Funds Interest Determination Date.
o If the brokers selected by the Calculation Agent are not quoting as
mentioned above, the Federal Funds Rate in effect immediately prior to
such Federal Funds Interest Determination Date shall not change and shall
remain the Federal Funds Rate in effect on such Federal Funds Interest
Determination Date.
Determination of LIBOR
If the Base Rate specified on the face hereof is the London interbank
offered rate ("LIBOR"), the interest rate per annum determined with respect to
any Interest Determination Date specified on the face hereof (each, a "LIBOR
Interest Determination Date") shall be determined by the Calculation Agent as
follows:
o As of the LIBOR Interest Determination Date, LIBOR shall be either:
o if "LIBOR Reuters" is specified on the face hereof, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page (as defined below) by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency (as defined below)
having the Index Maturity specified on the face hereof, commencing on the
applicable Interest Reset Date, that appear (or, if only a single rate is
provided as aforesaid, appears) on the Designated LIBOR Page as of 11:00
a.m., London time, on such LIBOR Interest Determination Date; or
o if "LIBOR Telerate" is specified on the face hereof or if neither "LIBOR
Reuters"
- 12 -
<PAGE>
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Index Currency having the
Index Maturity specified on the face hereof, commencing on such Interest
Reset Date, that appears on the Designated LIBOR Page as of 11:00 a.m.,
London time, on such LIBOR Interest Determination Date.
If fewer than the required number of applicable rates appear, LIBOR on such
LIBOR Interest Determination Date shall be determined in accordance with the
provisions described immediately below.
o With respect to a LIBOR Interest Determination Date on which fewer than
the required number of applicable rates appear on the Designated LIBOR
Page as specified immediately above, the Calculation Agent will request
the principal London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity specified on the face
hereof, commencing on the applicable Interest Reset Date, to prime banks
in the London interbank market at approximately 11:00 a.m., London time,
on such LIBOR Interest Determination Date and in a principal amount not
less than $1,000,000 (or the equivalent in the Index Currency as
applicable) that is representative for a single transaction in such Index
Currency in such market at such time. If at least two quotations are so
provided, then LIBOR on such LIBOR Interest Determination Date shall be
the arithmetic mean of such quotations.
o If only one or no such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date shall be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., in the applicable principal
financial center for the country of the Index Currency, on such LIBOR
Interest Determination Date by three major banks in such principal
financial center selected by the Calculation Agent for loans in the Index
Currency to leading European banks, having the Index Maturity specified on
the face hereof and in a principal amount not less than $1,000,000 (or the
equivalent in the Index Currency as applicable) that is representative for
a single transaction in such Index Currency in such market at such time.
o If the banks so selected by the Calculation Agent are not quoting as
mentioned immediately above, LIBOR in effect immediately prior to such
LIBOR Interest Determination Date shall not change and shall remain the
LIBOR in effect on such LIBOR Interest Determination Date.
For purposes of the preceding discussion, the following capitalized terms
have the following meanings:
"Index Currency" means the currency specified on the face hereof (which
may be a composite currency) for which LIBOR shall be calculated. If no such
currency is
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<PAGE>
specified, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means:
o if "LIBOR Reuters" is designated on the face hereof, the display on the
Reuters Monitor Money Rates Service (or any successor service) on the page
specified on the face hereof (or any other page as may replace such page
or such service (or any successor service)) for the purpose of displaying
the London interbank rates of major banks for the applicable Index
Currency; or
o if "LIBOR Telerate" is designated on the face hereof or neither "LIBOR
Reuters" nor "LIBOR Telerate" is designated on the face hereof as the
method for calculating LIBOR, the display on Dow Jones Markets Limited (or
any successor service) on page 3750 if the U.S. dollar is the Index
Currency or with respect to any other Index Currency, on the page
specified on the face hereof (or any other page as may replace such page
or such service (or any successor service)) for the purpose of displaying
the London interbank rates of major banks for the applicable Index
Currency.
Determination of Prime Rate
If the Base Rate specified on the face hereof is Prime Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "Prime Interest Determination Date") shall
equal the rate on such date as published in H.15(519) under the heading" Bank
Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
o If the rate is not published prior to 9:00 a.m., New York City time, on
the Calculation Date, then the Prime Rate shall be the rate on such Prime
Interest Determination Date as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying this rate,
opposite the caption "Bank Prime Loan."
o If the rate is not published prior to 3:00 p.m., New York City time, on
the Calculation Date, in either H.15(519) or H.15 Daily Update or another
recognized electronic source, then the Calculation Agent shall determine
the Prime Rate to be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page
(as defined below) as such bank's prime rate or base lending rate as in
effect for that Prime Interest Determination Date.
o If fewer than four rates appear on the Reuters Screen USPRIME1 Page on
such Prime Rate Interest Determination Date, then the Calculation Agent
shall determine the Prime Rate to be the arithmetic mean of the prime
rates or base lending rates (quoted on the basis of the actual number of
days in the year divided by 360) as of the close of business on such Prime
Interest Determination Date by
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<PAGE>
at least three major money center banks in New York City selected by the
Calculation Agent.
o If the banks selected are not quoting as mentioned immediately above, the
Prime Rate in effect immediately prior to such Prime Interest
Determination Date shall not change and shall remain the Prime Rate in
effect on such Prime Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate
If the Base Rate specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Treasury Interest Determination
Date") shall equal the rate applicable to the auction held on such date of
direct obligations of the United States ("Treasury bills") having the Index
Maturity specified on the face hereof under the caption "Investment Rate" on the
display on Bridge Telerate, Inc. (or any successor service) on page 56 (or any
other page as may replace such page on such service ) ("Telerate Page 56") or
page 57 (or any other page as may replace such page on such service) ("Telerate
Page 57") or, if not so published by 3:00 p.m., New York City time, on the
related Calculation Date, the Bond Equivalent Yield (as hereinafter defined) of
the rate for such Treasury bills as published in H.15(519) Daily Update, or such
other recognized electronic source used for the purpose of displaying such rate,
under the heading "U.S. Government Securities/Treasury Bills/Auction High."
The following procedures shall be followed if the Treasury Rate cannot be
determined as described above:
o If the above rate is not published by 3:00 p.m., New York City time, on
the Calculation Date, the Treasury Rate shall be the Bond Equivalent Yield
of the auction rate of such Treasury bills on such Treasury Interest
Determination Date as announced by the United States Department of the
Treasury.
o In the event that the auction rate of Treasury bills having the Index
Maturity specified on the face hereof is not published or announced as
provided above by 3:00 p.m., New York City time, on such Calculation Date,
or if no such auction is held on such Treasury Interest Determination
Date, then the Calculation Agent shall determine the Treasury Rate to be
the Bond Equivalent Yield of the rate on such Treasury Rate Interest
Determination Date of Treasury bills having the Index Maturity specified
on the face hereof as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market" or, if not yet
published by 3:00 p.m., New York City time, on the related Calculation
Date, the rate on such Treasury Rate Interest Determination Date of such
Treasury bills
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<PAGE>
as published in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying such rate, under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market." If such rate
is not yet published in H.15(519), H.15 Daily Update or another recognized
electronic source, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be the Bond Equivalent Yield of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 p.m., New
York City time, on such Treasury Interest Determination Date, of three
leading primary United States government securities dealers selected by
the Calculation Agent for the issue of Treasury bills with a remaining
maturity closest to the Index Maturity specified on the face hereof.
o If the dealers selected by the Calculation Agent are not quoting as
mentioned immediately above, the Treasury Rate in effect immediately prior
to such Treasury Interest Determination Date shall not change and shall
remain the Treasury Rate in effect on such Treasury Interest Determination
Date.
"Bond Equivalent Yield" means a yield (expressed as a
percentage)calculated in accordance with the following formula:
Bond Equivalent Yield D x 360
------- x 100
360 (D x M)
where "D" refers to the applicable per annum rate for the security quoted on a
bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the
case may be, and "M" refers to the actual number of days in the interest period
for which interest is being calculated.
Determination of CMT Rate
If the Base Rate specified on the face hereof is CMT Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CMT Interest Determination Date") shall
equal the rate displayed on the Designated CMT Telerate Page (as defined
below)under the caption "Treasury Constant Maturities . . . Federal Reserve
Board Release H.15 . . . Mondays Approximately 3:45 p.m.," under the column for
the Designated CMT Maturity Index (as defined below) for:
(i) if the Designated CMT Telerate Page is 7051, such CMT Interest
Determination Date; and
(ii) if the Designated CMT Telerate Page is 7052, the week or the
month, as applicable, ended immediately before the week in which the
related CMT Interest Determination Date occurs.
The following procedures shall be used if the CMT Rate cannot be
determined as
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<PAGE>
described above:
o If such rate is no longer displayed on the relevant page, or if not
displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be such treasury constant maturity rate for
the Designated CMT Maturity Index (as defined below) as published in
H.15(519).
o If that rate is no longer published, or if not published by 3:00 p.m., New
York City time, on the related Calculation Date, then the CMT Rate shall
be such treasury constant maturity rate for the Designated CMT Maturity
Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the
rate formerly displayed on the Designated CMT Telerate Page and published
in H.15(519).
o If such information is not provided by 3:00 p.m., New York City time, on
the related Calculation Date, then the Calculation Agent shall determine
the CMT Rate to be a yield to maturity, based on the arithmetic mean of
the secondary market closing offer side prices as of approximately 3:30
p.m., New York City time, on the CMT Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in New York
City selected by the Calculation Agent as described in the following
sentence. The Calculation Agent shall select five Reference Dealers and
shall eliminate the highest quotation (or, in the event of overlap, one of
the highest) and the lowest quotation (or, in the event of overlap, one of
the lowest), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury notes") with an original
maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity
Index minus one year.
o If the Calculation Agent cannot obtain three such Treasury notes
quotations, the Calculation Agent shall determine the CMT Rate to be a
yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 p.m., New York City time, on
the CMT Interest Determination Date of three Reference Dealers in New York
City (selected using the same method described above) for Treasury notes
with an original maturity of the number of years that is the next highest
to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least
$100,000,000. If two Treasury notes with an original maturity as described
above have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent shall obtain quotations for the
Treasury note with the shorter remaining term to maturity.
o If three or four (but not five) of such Reference Dealers are quoting as
described above, then the CMT Rate shall be based on the arithmetic mean
of the offer prices obtained and neither the highest nor the lowest of
such quotes shall be eliminated.
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<PAGE>
o If fewer than three Reference Dealers selected by the Calculation Agent
are quoting as mentioned immediately above, the CMT Rate in effect
immediately prior to such CMT Interest Determination Date shall not change
and shall remain the CMT Rate in effect on such CMT Interest Determination
Date.
"Designated CMT Telerate Page" means the display on the Telerate (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)). If no such page is specified, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)specified
on the face hereof with respect to which the CMT Rate shall be calculated.
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
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 a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the
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<PAGE>
Indenture, such payments shall be made only from proceeds of such money or
eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of
$1,000(provided that any remaining principal amount of this Security shall not
be less than the minimum authorized denomination hereof) on or after the date
designated as the Initial Redemption Date on the face hereof at 100% of the
unpaid principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction specified on the face hereof, until the
Redemption Percentage is equal to 100%. The Company may exercise such option by
causing the Trustee to mail a notice of such redemption at least 30 but not more
than 60 days prior to the applicable Redemption Date to each Holder of the
Securities of this series to be redeemed. In the event of redemption of this
Security in part only, the Company shall issue a new Security or Securities for
the unredeemed portion hereof in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Securities of this series with like
tenor and terms are to be redeemed, the Securities to be redeemed shall be
selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security shall not be
entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable prior
to the Stated Maturity Date at the option of the Holder, in whole or in part and
in increments of $1,000 (provided that any remaining principal amount of this
Security surrendered for partial repayment shall not be less than the minimum
authorized denomination hereof), on or after the date designated as an Optional
Repayment Date on the face hereof at 100% of the principal amount to be repaid,
plus accrued interest, if any, to the
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<PAGE>
Repayment Date. In order for this Security to be repaid, the Company must
receive at the applicable address of the Paying Agent set forth below or at such
other place or places of which the Company shall from time to time notify the
Holder of the within Security, at least 30 but not more than 45 days prior to an
Optional Repayment Date, either (i) this Security, with the form below entitled
"Option to Elect Repayment" duly completed, or (ii) a telegram, telex, facsimile
transmission, or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth (a) the name, address and
telephone number of the Holder of this Security, (b) the principal amount of
this Security and the amount of this Security to be repaid, (c) a statement that
the option to elect repayment is being exercised thereby, and (d) a guarantee
stating that the Company will receive this Security, with the form below
entitled "Option to Elect Repayment" duly completed, not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and this Security and form duly completed are received by the Company by
such fifth Business Day). Any such election shall be irrevocable. The address to
which such deliveries to_______________________ are to be made is
____________________________________________________ (or, at such other place as
the Company shall notify the Holders of the Securities of this series). All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Company,
whose determination will be final and binding. Upon any partial repayment, this
Security shall be cancelled and a new Security or Securities for the remaining
principal amount hereof shall be issued in the name of the Holder of this
Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at the
office or agency of the Company maintained in _____________ or
_________________, a new Security or Securities of this series in authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange here for, as provided in the Indenture and subject to the
limitations provided therein and to the limitations described below, without
charge except for any tax or other governmental charge imposed in connection
therewith.
If this Security is a Global Security (as specified above), this Security
is exchangeable for definitive Securities in registered form only if(x) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for this Security or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a
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<PAGE>
successor Depositary within 90 days after receiving such notice or after
becoming aware that the Depositary has ceased to be so registered as a clearing
agency, (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Securities in registered form and notifies
the Trustee thereof or (z) an Event of Default with respect to the Securities
represented hereby has occurred and is continuing. If this Security is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Securities in registered form, bearing interest at the same rate,
having the same date of issuance, redemption provisions, Stated Maturity Date
and other terms and of authorized denominations aggregating a like amount.
If this Security is a Global Security (as specified above), this Security
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Securities in definitive form and will
not be considered the Holders hereof for any purpose under the Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
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<PAGE>
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER
AND THE HOLDER ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or the portion thereof specified below), pursuant to
its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_____________________________, at __________________________ (please print or
typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: $__________.
If less than the entire principal amount of the within Security is to be
repaid, specify the denomination or denominations (which shall be $1,000 or an
integral multiple thereof) of the Security or Securities to be issued to the
Holder for the portion of the within Securities not being repaid (in the absence
of any specification, one such Security will be issued for the portion not being
repaid): $______________.
Date: _______________ __________________________________
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<PAGE>
Notice: The signature to this Option to Elect
Repayment must correspond with the name as written
upon page 2 of the within Security in every
particular without alteration or enlargement or
any change whatsoever.
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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.
- 24 -
<PAGE>
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 TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
the within Security of GATX CAPITAL CORPORATION and all rights thereunder and
does hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_______________________
Signature Guaranteed:_______________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
- 25 -
EXHIBIT 5
December 28, 1999
Board of Directors
GATX Capital Corporation
Four Embarcadero Center, Suite 2200
San Francisco, CA 94111
Re: Registration Statement on Form S-3
Gentlemen:
You have requested my opinion in connection with the registration, under a
registration statement on Form S-3 (the "Registration Statement") to be filed
with the Securities and Exchange Commission, of the sale of $1,000,000,000
aggregate principal amount of senior and subordinated debt securities (the "Debt
Securities") of GATX Capital Corporation, a Delaware corporation (the
"Company"). The Registration Statement, which is a new registration statement,
is a combined prospectus filed pursuant to Rule 429 of the Securities Act of
1933, as amended, and also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 333-86879.
I have examined (i) the Distribution Agreement in the form included as
Exhibit 1.1 to the Registration Statement (the "Distribution Agreement"), (ii)
the Underwriting Agreement in the form included as Exhibit 1.2 to the
Registration Statement (the "Underwriting Agreement"), (iii) a copy of the
Indenture dated as of July 31, 1991, between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), incorporated by reference as Exhibit 4.1 to
the Registration Statement, (iv) a copy of the Supplemental Indenture dated as
of December 18, 1991, between the Company and the Trustee, incorporated by
reference as Exhibit 4.2 to the Registration Statement, (v) a copy of the Second
Supplemental Indenture dated as of January 2, 1996, between the Company and the
Trustee, incorporated by reference as Exhibit 4.3 to the Registration Statement,
(vi) a copy of the Third Supplemental Indenture dated as of October 14, 1997,
between the Company and the Trustee, incorporated by reference as Exhibit 4.4 to
the Registration Statement, (vii) a copy of the Form of Subordinated Indenture,
incorporated by reference as Exhibit 4.5 to the Registration Statement (the
"Subordinated Indenture"), (viii) the proposed forms of Debt Security and Notes
included as Exhibits 4.6, 4.7 and 4.8 to the Registration Statement, and (ix)
originals or copies certified or authenticated to my satisfaction of the
Company's Restated Certificate of Incorporation, its Bylaws and records of some
of its corporate proceedings. In addition, I have made those other examinations
of law and fact as I considered necessary to form a basis for the opinions
expressed below.
-1-
<PAGE>
In giving this opinion, I assume (i) that the Indenture dated July 31,
1991, and as amended on December 18, 1991, January 2, 1996 and October 14, 1997,
has been duly authorized, executed and delivered by the Trustee and is the
legal, valid and binding obligation of the Trustee, (ii) that the Subordinated
Indenture will be duly authorized, executed and delivered by the subordinated
indenture trustee and will be the legal, valid and binding obligation of the
trustee, and (iii) that the Debt Securities to be executed and delivered by the
Company will be substantially in the applicable forms filed as exhibits to the
Registration Statement. In addition, I have assumed the genuineness of all
signatures, the authenticity of documents submitted as originals, the conformity
with originals of all documents submitted to me as copies, and the legal
capacity of all persons who have executed any of these documents, which facts I
have not independently verified.
Based on the foregoing, I am of the opinion that, when duly authorized by
the Board of Directors of the Company or a duly authorized committee appointed
by them, duly executed and delivered by proper officers of the Company, issued
and paid for as provided for in the Registration Statement, a related Pricing
Agreement, the Indenture, the Distribution Agreement and the Underwriting
Agreement, and duly authenticated by the Trustee or subordinated indenture
trustee, as the case may be, under the Indenture or the Subordinated Indenture,
the Debt Securities will be legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
enforceability may be limited by bankruptcy, reorganization, fraudulent
conveyance or transfer, insolvency or moratorium and other laws relating to or
affecting enforcement of creditors' rights or by general equitable principles
(whether considered in a proceeding in equity or at law), and except that the
remedy of specific performance and injunctive and other forms of equitable
relief are subject to certain equitable defenses and to the discretion of the
court before which any proceeding on them may be brought.
The opinions expressed above are limited to the laws of the State of New
York, the federal laws of the United States of America and the Delaware General
Corporation Law (including the applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting that Law). My opinions
are given only with respect to the laws, and the rules, regulations and orders
under them which are currently in effect.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to my name under the caption "Legal Opinions" in
the Prospectus included in the Registration Statement. In giving this consent, I
do not admit that I come within the category of persons whose consent is
required by the Securities Act of 1933, as amended, or the rules enacted under
it.
Very truly yours,
/s/ THOMAS C. NORD
Thomas C. Nord
Vice President and General Counsel
-2-
Exhibit 12
GATX Capital Corporation
Computation of Ratio of Earnings to Fixed Charges
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
------------- ---------------------------------------------------------
1999 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
FIXED CHARGES:
Interest on indebtedness and
amortization of debt discount
and expense $ 83,502 $ 110,187 $ 94,305 $ 85,836 $ 68,396 $ 62,744
Capitalized interest 1,756 2,064 1,575 3,074 1,601 292
Portion of rents representing
interest factor (assumed to
approximate 33%) 10,755 13,802 13,169 10,849 6,574 5,122
Total Fixed charges 96,013 126,053 190,049 99,759 76,571 68,158
EARNINGS AVAILABLE FOR
FIXED CHARGES:
Income from continuing
operations 58,558 71,981 53,924 45,314 32,604 24,851
Add (deduct):
Income taxes (benefit) 39,448 51,267 36,366 32,286 22,740 18,785
Equity in net earnings of joint
ventures, net of dividends
received (24,465) 6,159 39,031 8,740 13,522 14,322
Fixed charges (excluding
capitalized interest) 94,257 123,989 107,474 96,685 74,970 67,864
Total earnings available for
fixed charges $ 167,798 $ 253,306 $ 236,795 $ 183,025 $ 143,836 $ 125,822
Ratio of earnings to fixed
charges 1.75x 2.01x 2.17x 1.83x 1.88x 1.85x
</TABLE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission and related Prospectus of GATX Capital Corporation for the
registration of $1,000,000,000 Senior and Subordinated Debt Securities and to
the incorporation by reference therein of our report dated January 22, 1999,
with respect to the consolidated financial statements of GATX Capital
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1998 filed with the Securities and Exchange Commission.
Ernst & Young LLP
San Francisco, California
December 23, 1999
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
GATX CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 94-1661392
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Four Embarcadero Center, San Francisco, CA 94111
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Senior and Subordinated Debt Secutities
(Title of the indenture securities)
--------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New
York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 28th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
-----------------------------------------
- 3 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 28th day of December, 1999.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
----------------------------------------
/s/
- 4 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .......................................... $ 13,497
Interest-bearing balances .................................. 6,388
Securities:
Held to maturity securities ..................................... 798
Available for sale securities ................................... 48,655
Federal funds sold and securities purchased under
agreements to resell ....................................... 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income $132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve.... 0
Loans and leases, net of unearned income, --------
allowance, and reserve ..................................... 129,929
Trading Assets .................................................. 47,413
Premises and fixed assets (including capitalized
leases) .................................................... 3,287
Other real estate owned ......................................... 26
Investments in unconsolidated subsidiaries and
associated companies ....................................... 185
Customers' liability to this bank on acceptances
outstanding ................................................ 716
Intangible assets ............................................... 2,693
Other assets .................................................... 15,430
--------
TOTAL ASSETS .................................................... $299,390
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ......................................... $100,324
Noninterest-bearing ................... $ 41,601
Interest-bearing ...................... 58,723
--------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ...................................... 88,064
Noninterest-bearing ........................ $ 6,363
Interest-bearing ...................... 81,701
Federal funds purchased and securities sold under agree-
ments to repurchase .............................................. 35,773
Demand notes issued to the U.S. Treasury ......................... 892
Trading liabilities .............................................. 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ............... 4,434
With a remaining maturity of more than one year
through three years ................................... 14
With a remaining maturity of more than three years .......... 97
Bank's liability on acceptances executed and outstanding ......... 716
Subordinated notes and debentures ................................ 5,429
Other liabilities ................................................ 11,457
TOTAL LIABILITIES ................................................ 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................... 0
Common stock .................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ....... 11,016
Undivided profits and capital reserves .......................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ................................ (951)
Accumulated net gains (losses) on cash flow hedges .............. 0
Cumulative foreign currency translation adjustments ............. 16
TOTAL EQUITY CAPITAL ............................................ 18,625
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ............................ $ 299,390
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
