As filed with the Securities and Exchange Commission on September 9, 1999
Post-Effective Amendment No. 1
(Registration Statement No. 333-34879)
Registration No. 333-
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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
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(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
THOMAS C. NORD, ESQ.
GATX Capital Corporation
Vice President and General Counsel
Four Embarcadero Center
San Francisco, California 94111
(415) 955-3200
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(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
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.......$500,000,000 (3) 100% 100% $139,000.00
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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 $500,000,000.
(2) Estimated solely for the purposes of determining the amount of the
registration fee.
(3) In addition to the debt securities to be registered hereby, this
registration statement carries forward $16.0 million of debt securities
previously registered pursuant to Registration Statement No. 333-34879.
The filing fee previously paid with respect to such debt securities was
$4,720.00
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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 Commission, acting pursuant to said section 8(a),
may determine.
The prospectus contained herein is a combined prospectus filed pursuant to
Rule 429 under the Securities Act of 1933, as amended, and also relates to
Registration Statement No. 333-34879.
This Registration Statement, which is a new registration statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement No.
333-34879, 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.
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Subject to completion, dated September 9, 1999
Prospectus
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U.S. $500,000,000
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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. $500,000,000 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 September 9, 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
information different from that contained in this prospectus. 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.
In this prospectus, "GATX Capital," "we," "us," "our" and the "Company"
each refers 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 $500,000,000.
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 the
Company 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 with respect to the Company and
the securities offered hereby, 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 Commission, are
incorporated by reference in and made a part of this prospectus:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1998; and
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 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 will be described with particularity in the applicable prospectus
supplement. 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.
THE COMPANY
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
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partnerships and joint ventures. We actively manage 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 the Company as GATX Leasing Corporation,
a Delaware corporation, in 1968 to own, sell and finance equipment independent
of GATX's own specialized equipment activities. Since that time, we have
developed a portfolio of earning assets diversified across industries and
equipment classifications. At June 30, 1999, GATX Capital's investment portfolio
of approximately $2.3 billion, before reserves, consists of commercial jet
aircraft (31%), railroad equipment (14%), information technology equipment
(23%), marine equipment (6%), warehouse and production equipment (4%), golf
courses and equipment (2%) and other equipment (20%).
We have a financial and management interest in 125 aircraft as of June 30,
1999, and orders and options for an additional 14 aircraft. 99.9% of the
aircraft portfolio (in investment dollars) is compliant with Stage 3 noise
regulations. GATX Capital also has a financial and management interest in 946
locomotives and 53,947 railcars as of June 30, 1999. The utilization rate on the
operating lease fleet for our locomotives and railcars as of that date is
approximately 97.5% and 98%, 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
You should carefully consider the specific risks set forth under the
heading "Risk Factors" in the applicable prospectus supplement before making an
investment decision. The risks and uncertainties described in the applicable
prospectus supplement are not the only ones facing our Company. 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 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.
Six Months
Ended June 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 2.08x 2.40x 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 the Company 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
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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 the Company and Chase Manhattan Bank and
Trust Company, National Association, 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. 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 the Company 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 $500,000,000 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 the Company. The subordinated securities will
be subordinated and junior in right of payment to certain indebtedness of the
Company to the extent set forth in the applicable prospectus supplement.
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;
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 the Company 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;
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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 application, if any, of either or both of the defeasance or
covenant defeasance sections of the indentures to the debt
securities;
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 the Company 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 depository'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. 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 the
Company to the extent set forth in the applicable prospectus supplement and
pricing supplement, if any.
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Certain Covenants of the Company 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 the
Company) 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 the Company 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 defined as the total assets of the Company 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 the Company;
(g) Liens on sublease interests held by the Company if those liens are in
favor of the person granting the lease to the Company;
(h) Various specified governmental liens and deposits; and
(i) Various other liens not incurred in connection with the borrowing of
money (including purchase money indebtedness) or the obtaining of advances or
credit.
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 the Company) or
purchase or redeem any stock of any class of the Company unless the aggregate
amounts of all such payments and distributions after December 31, 1988 will not
exceed the sum of (i) the total of the accumulated consolidated net income of
the Company and its Restricted Subsidiaries during the period after December 31,
1988, (ii) any net consideration received from the sale of stock of any class of
the Company after December 31, 1988, (iii) the aggregate principal amount of any
indebtedness of the Company which shall have been converted into the stock of
any class of the Company and (iv) $250,000,000. 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,
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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 the 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) and interest on the debt securities and the
performance and observance of all of the covenants and conditions of such
indenture to be performed or observed by the Company.
Modification and Waiver
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 any installment of principal of, or
interest on, 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;
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;
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o Default in the performance or breach of any other covenant or warranty
of the Company in respect of the debt securities of such series in each
indenture which shall not have been remedied for a period of 90 days after
notice;
o Certain events of bankruptcy, insolvency and reorganization of the
Company; and any other event of default established for the debt securities of
such series set forth in the applicable prospectus supplement 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 the Company shall have occurred and
be continuing, either the trustee or the holders of 25% in principal amount of
all outstanding debt securities (treated as one class) may declare the principal
of all debt securities, or such lesser amount as may be provided for in such
securities, and interest accrued thereon, to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of, or premium or
interest on, the debt securities) by the holders of a majority in principal
amount of the outstanding debt securities of such series (or of all series, as
the case may be).
The holders of a majority in principal amount of the outstanding debt
securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on the trustee with respect to debt
securities of such series provided that such direction shall not be in conflict
with any rule of law or the applicable indenture or shall not be unduly
prejudicial to the holders not taking part in such direction. The Company is
required to furnish to the trustee under each indenture annually a statement as
to performance or fulfillment of certain of its obligations under the applicable
indenture and as to any default in such performance of fulfillment.
Concerning The Trustee
Chase Manhattan Bank and Trust Company, National Association, is the
senior indenture trustee under the senior indenture. Certain affiliates of the
trustee under the indenture relating to the senior securities has substantial
banking relationships with the Company, GATX and certain other affiliates of the
Company and is the trustee under the indenture relating to the senior securities
with respect to other series of debt securities, under another indenture with
the Company and under certain equipment trust agreements with an affiliate.
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 the Company and perform other services for the
Company in the normal course of business. Under the provisions of the Trust
Indenture Act of 1939, as amended, 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
-9-
<PAGE>
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.
In connection with the sale of the debt securities, underwriters, dealers
or agents may receive compensation from the Company or from purchasers of the
debt securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents that participate
in the distribution of the debt securities may be deemed to be underwriters
under the Securities Act of 1933 and any discounts or commissions received by
them and any profit on the resale of the debt securities received by them may be
deemed to be underwriting discounts and commissions thereunder. Any such
underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in the prospectus supplement 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 the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act of
1933, or to contribution with respect to payments which the underwriters,
dealers or agents may be required to make in respect thereof.
Each underwriter, dealer and agent participating in the distribution of
any debt securities that are issuable in bearer form will agree that it will not
offer, sell, resell or deliver, directly or indirectly, debt securities in
bearer form to persons located in the United States or to United States persons
(other than qualifying financial institutions), in connection with the original
issuance of the debt securities.
Some of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for us in the ordinary
course of business.
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 Pillsbury Madison
& Sutro LLP will pass on certain legal matters for the debt securities 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.
-10-
<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.............................. $124,000.00
Accounting fees and expenses ..................... $ *
Legal fees and expenses, including Blue Sky fees and
expenses ...................................... $ *
Printing and engraving fees....................... $ *
Trustee's fees and expenses ...................... $ *
Rating agency fees ............................... $ *
Miscellaneous..................................... $ *
-----------
Total.......................................... $ *
===========
* To be filed by amendment.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, empowers a corporation, subject to certain limitations, to indemnify
its directors and officers against the actual and reasonable expenses of
defending litigation against them in their capacities as directors and officers.
Article VI of the By-Laws of the Company provides in terms similar to
those of Section 145 of the Delaware General Corporation Law that the Company
shall have power to indemnify its directors and officers.
Reference is made to Section 6 of the Distribution Agreement filed as
Exhibit 1.1 to this registration statement and Section VIII of the Underwriting
Agreement filed as Exhibit 1.2 hereto pursuant to which the agents may under
certain circumstances indemnify the officers and directors of the Company.
Under the terms of a Directors and Officers Liability and Company
Reimbursement Liability Policy, the directors and officers of the Company are
insured up to an aggregate liability in each policy year of $75,000 per
occurrence, against any loss incurred in connection with any claim made against
them or any of them for any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted, or any matter not excluded by the terms and conditions of the policy,
claimed against them solely by reason of their being directors or officers of
the Company. The foregoing statements are subject to the detailed provisions of
such policy.
Item 16. Exhibits.
Exhibit
Number Description of Exhibit
- ------ ----------------------
1.1* Form of Distribution Agreement.
1.2* Form of Underwriting Agreement.
4.1 Indenture dated as of July 31, 1989 between GATX Capital Corporation
(formerly named GATX Leasing Corporation) and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4(a) to the Company's Form S-3
Registration Statement No. 33-30300).
II-1
<PAGE>
4.2 Supplemental Indenture dated as of December 18, 1991 between GATX Capital
Corporation and The Chase Manhattan Bank (incorporated by reference to
Exhibit 4(b) to the Company's Form S-3 Registration Statement No.
33-64474).
4.3 Second Supplemental Indenture dated as of January 2, 1996 between GATX
Corporation and The Chase Manhattan Bank (incorporated by reference to
Exhibit 4.3 to the Company's Form 8-K dated October 15, 1997).
4.4 Third Supplemental Indenture dated as of October 14, 1997 between GATX
Capital Corporation and The Chase Manhattan Bank (incorporated by
reference to Exhibit 4.4 to the Company's Form 8-K dated October 15,
1997).
4.5 Form of Subordinated Indenture (incorporated by reference to Exhibit 4.3
to the Company'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 Ernst & Young LLP.
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 Commission pursuant to Rule
424(b), if in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
referred to in Item 15 of this registration statement, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a
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 Commission under
Section 305(b)(2) of the Act.
(7) The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
(ii) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities therein, and
the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco and State of California on the 9th day
of September, 1999.
GATX CAPITAL CORPORATION
(Registrant)
By: /s/ JESSE V. CREWS
------------------------------------
Jesse V. Crews, President,
Director and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of GATX Capital Corporation,
hereby severally constitute Thomas C. Nord and Richard M. Tinnon, and either of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
any and all amendments to this registration statement on Form S-3 (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 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 (Principal September 9, 1999
Jesse V. Crews Executive Officer)
/S/ JACK F. JENKINS-STARK Senior Vice President and Chief
- ------------------------- Financial Officer (Principal September 9, 1999
Jack F. Jenkins-Stark Financial Officer)
/S/ DELPHINE M. REGALIA Vice President and Controller
- ------------------------- (Principal Accounting Officer) September 9, 1999
Delphine M. Regalia
/S/ RONALD H. ZECH Chairman of the Board
- ------------------------- September 9, 1999
Ronald H. Zech
/S/ DAVID B. ANDERSON Director
- ------------------------- September 9, 1999
David B. Anderson
II-5
<PAGE>
/S/ ALLAN C. COE Executive Vice President and
- ------------------------- Director September 9, 1999
Alan C. Coe
/S/ DAVID M. EDWARDS Director
- ------------------------- September 9, 1999
David M. Edwards
/S/ KATHRYN G. JACKSON Executive Vice President and
- ------------------------- Director September 9, 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 the Company's Form S-3 Registration Statement No. 33-30300).
4.2 Supplemental Indenture dated as of December 18, 1991 between
GATX Capital Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4(b) to the Company's Form
S-3 Registration Statement No. 33-64474).
4.3 Second Supplemental Indenture dated as of January 2, 1996
between GATX Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4.3 to the Company's Form
8-K dated October 15, 1997).
4.4 Third Supplemental Indenture dated as of October 14, 1997
between GATX Capital Corporation and The Chase Manhattan Bank
(incorporated by reference to Exhibit 4.4 to the Company's Form
8-K dated October 15, 1997).
4.5 Form of Subordinated Indenture (incorporated by reference to
Exhibit 4.3 to the Company'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 Ernst & Young LLP.
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
$500,000,000
Medium-Term Notes, Series F
DISTRIBUTION AGREEMENT
___________, 1999
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 $500,000,000 aggregate principal amount of its Medium-Term
Notes, Series F 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 Chase Manhattan Bank and Trust Company, National
Association (the "Trustee") and will bear interest, if any, at rates and will
have the terms to be provided in a supplement to the Basic Prospectus referred
to below. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by the Company with the 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; provided, however, that (i) so long as this Agreement
shall remain in effect, the Company
<PAGE>
2
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 Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable,
<PAGE>
3
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
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting
<PAGE>
4
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 in interest rates, redemption provisions or maturities
offered on the Notes or for
<PAGE>
5
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
.125% and .750% 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 F 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
<PAGE>
6
the Company accepts any offer by an Agent to purchase Notes as principal. The
date of delivery of such documents is referred to herein as the "Commencement
Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to each Agent a copy
thereof for its review and will not file any such proposed amendment or
supplement to which any Agent reasonably objects; provided that (i) the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, which filings the Company will cause to be timely
filed with the Commission and copies of which filings the Company will cause to
be delivered to each Agent promptly after being mailed for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise each Agent (a) of the
filing of any 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
<PAGE>
7
the Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Agent in such quantities as such Agent may reasonably
request. If such amendment or supplement, and any documents, certificates and
opinions furnished to the Agents pursuant to paragraph (f) below and Sections
5(a), 5(b) and 5(c) in connection with the preparation or filing of such
amendment or supplement, are satisfactory in all respects to each Agent, upon
the filing of such amendment or supplement with the Commission or effectiveness
of an amendment to the Registration Statement, such Agent will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Notes an Agent may
own as principal has been completed, if any event described above in this
paragraph (b) occurs, the Company will, at its own expense, forthwith prepare
and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or Prospectus as then amended or supplemented,
satisfactory in all respects to such Agent, and will supply such amended or
supplemented Prospectus to such Agent in such quantities as such Agent may
reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to each Agent pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
such Agent, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration Statement, such Agent may
resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve month periods
beginning, in each case, not later than the first day of the Company'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
<PAGE>
8
promptly in writing of any downgrading or of its receipt of any notice of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company; (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
<PAGE>
9
at the time of such solicitation or at the time such offer to purchase was
made that in the reasonable judgment of the relevant Agent or such
purchaser, as the case may be, is material and adverse and that makes it,
in the reasonable judgment of such Agent or such purchaser, impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, the
New York Stock Exchange, the American Stock Exchange, the 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
<PAGE>
10
of Delaware and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership and leasing of its properties requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
or leasing of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(C) Each of the Company and its subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties 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,
<PAGE>
11
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
the Indenture, the Notes or any applicable Terms Agreement, except
such as are specified and have been obtained and such as may be
required by the Securities Act, the Exchange Act, the Trust
Indenture Act or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(H) The statements (1) in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"; (2) in
"Item 3--Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in such Prospectus and
(3) in Item 15 of the Registration Statement, as amended or
supplemented, and in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
(I) To the best of such counsel's knowledge, after
due inquiry, there are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, and is not so described, or of any statute,
regulation, contract or other document that is required to be
described in the Registration Statement or the Prospectus, as
amended or supplemented, or to be filed as an exhibit to the
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(J) Such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act (except as to
financial statements and schedules, as to which such counsel need
not express any opinion and except for that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification 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
<PAGE>
12
referred to), comply as to form in all material respects with the
Securities Act and the applicable rules and regulations thereunder
and (4) believes that (except as to financial statements and
schedules as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) the Registration Statement and
the Prospectus, as amended or supplemented, if applicable, as of the
Commencement Date or the date of any agreement by an Agent to
purchase 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
<PAGE>
13
discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification except as
specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents), 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).
<PAGE>
14
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish to any Agent
requesting it in writing a letter, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to such Agent,
of the same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
(d) In the event that the Company issues any Notes that are
not exempt from the usury provisions of Section 1 of Article XV of the
California Constitution ("California usury law"), the interest rate on such
Notes shall bear interest at a rate or rates not exceeding that permitted under
California usury law.
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
<PAGE>
15
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be mutually agreed upon by the Agents who are parties to any such proceeding and
designated in writing by 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
<PAGE>
16
the Agents were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes offered and sold to the public 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
<PAGE>
17
any Agent to purchase Notes as principal will remain in full force and effect,
regardless of any investigation made by or on behalf of any of the Agents or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive delivery of and payment for the Notes.
10. Notices. Unless a notice is expressly required to be given by
telephone hereunder, all communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to 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: Michael E. Cromar
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 F
COMMISSION SCHEDULE
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 F
TERMS AGREEMENT
__________, 19__
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Attention:
Re: Distribution Agreement
dated __________, 1999
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes, Series F: $
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 provisions: Interest reset dates:
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 F
Administrative Procedures
Medium-Term Notes, Series F (the "Notes") in the aggregate principal
amount of $500,000,000 are to be offered on a continuing basis by GATX Capital
Corporation (the "Company"). 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 __________, 1999
(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
and Trust Company, N.A. (the "Trustee") is the trustee under the Indenture dated
as of July 31, 1989, as supplemented and amended by the Supplemental Indentures
dated as of December 18, 1991, 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 F 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
Authentication: its 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
Supplements: by the Company, the Company, with the
approval of the Agent which presented such
offer (the Presenting Agent), will prepare a
Pricing Supplement reflecting the terms of
such Note and file 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 [January 19, 1996]
(the "Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Interest Rate, Original
Issue Date, Maturity Date, Redemption Date
and Prices, if any, Sinking Fund Dates and
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
C-5
<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 and On the first Business Day of March, June,
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 Interest Trustee will deliver to the Company and DTC
Only: a 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
Offers: accept 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 Timetable: For orders of Notes accepted by the Company,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
A-B 11:00 A.M. on the trade date
C 2:00 P.M. on the trade date
D 3:00 P.M. on the Business Day
before Settlement Date
E 4:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
Settlement
Procedure Time
G-H No later than 2:00 P.M. on
Settlement Date
I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
[If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B and C may, if
necessary, be completed at any time prior to
the specified times on the first Business
Day after such trade date.] In connection
with a sale which is to be settled more than
one Business Day after the trade date, if
the initial interest rate for a Floating
Rate Note is not known at the time that
Settlement Procedure A is completed,
Settlement Procedures B and C shall be
completed as soon as such rates have been
determined, but no later than 11:00 A.M. and
2:00 P.M., New York City time, respectively,
on the second Business Day before the
Settlement Date. Settlement Procedure I is
subject to extension in accordance with any
extension of Fedwire closing deadlines and
in the other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
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
Interest: Certificated 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.
C-16
<PAGE>
The Trustee will provide monthly to the
Company a list of the principal and interest
to be paid on Certificated Notes maturing in
the next succeeding month. The Trustee will
be responsible for withholding taxes on
interest paid as required by applicable law,
but shall be relieved from any such
responsibility if it acts in good faith and
in reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee
at Maturity for payment will be canceled by
the Trustee. All such canceled Notes held by
the Trustee shall be destroyed and the
Trustee shall furnish to the Company a
certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Certificated Note:
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.
C-17
<PAGE>
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any,
and redemption at whose
option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if
any
(k) Minimum Interest Rates, if
any
(l) Redemption Dates, if any,
and redemption at whose
option
(m) Original Issue Discount
features, if any
(n) Sinking Fund Dates and
Amounts, if any
7. Price to public of the Note.
8. Settlement Date (Original Issue
Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's commission.
B. The Company shall provide to the
Trustee, by telecopy or other mutually
acceptable method, the above
Settlement information received from
the Agent and shall cause the 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 Timetable: For offers accepted by the Company,
Settlement 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
__________, 1999
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 $___,000,000 aggregate
principal amount of its ___% Notes due _____ (the "___% Notes") and $___,000,000
aggregate principal amount of its ___% Notes due _____ (the "___% Notes" and,
together with the ___% Notes, 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 99.___% of the principal
amount of the ___% Notes and 99.___% of the principal amount of the ___% Notes
plus, in each case, accrued interest, if any, from __________, 1999 to the date
of payment and delivery.
Principal Amount Principal Amount
of ___% Notes to be of ___% Notes to be
Name Purchased Purchased
- ---- --------- ---------
Morgan Stanley & Co. Incorporated $ $
Warburg Dillon Read L.L.C. $ $
------------------- -------------------
Total: $ $
Delivery of and payment for the Offered Securities shall be made at 11:00
A.M., New York City time, on _________, 1999, or such later date (not later than
__________, 1999) as the Manager shall designate. Delivery of the Offered
Securities shall be made to the Manager of the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Manager of 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 Pillsbury Madison & Sutro
LLP, San Francisco, California 94104.
<PAGE>
The Offered Securities shall have the terms set forth in the Prospectus
dated __________, 1999 and the Prospectus Supplement dated __________, 1999,
including the following:
% Notes
-------
Maturity: __________, _____
Interest Rate: ___%
Redemption Provisions: Not redeemable
prior to maturity
Interest Payment Dates: _____ 1 and _____ 1
% Notes
-------
Maturity: __________, _____
Interest Rate: ___%
Redemption Provisions: Not redeemable
prior to maturity
Interest Payment Dates: _____ 1 and _____ 1
All the provisions contained in the document entitled GATX Capital
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
__________, 1999, 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>
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,
Morgan Stanley & Co. Incorporated
Warburg Dillon Read L.L.C.
By: MORGAN STANLEY & CO. INCORPORATED
By:
----------------------------------
Title:
Acting severally on behalf of themselves and the several Underwriters named
above
Accepted:
By: GATX CAPITAL CORPORATION
By:
-------------------------
Title:
<PAGE>
GATX CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
__________, 1999
<PAGE>
1
From time to time, GATX Capital Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") pursuant to the provisions of an Indenture dated as of July 31,
1989, as supplemented and amended by a Supplemental Indenture dated as of
December 18, 1991, a Second Supplemental Indenture dated as of January 2, 1996,
a Third Supplemental Indenture dated as of October 14, 1997 between the Company
and The Chase Manhattan Bank, as Trustee (the "Senior Indenture"), or an
Indenture that may be entered into between the Company and a trustee to be
designated (together with the Senior Indenture, the "Indenture"). The Securities
may have varying designations, maturities, rates and times of payment of
interest, if any, selling prices, redemption terms, if any, and other specific
terms.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating to
the Securities and has filed with or transmitted for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The term Registration Statement means the registration statement, including the
exhibits thereto, as amended to the date of the Underwriting Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities (the "Prospectus
Supplement"), as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically referring to the Offered Securities together
with the Basic Prospectus. As used herein, the terms "Registration Statement,"
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Underwriters' Securities" means the Offered Securities to
be purchased by the Underwriters herein. The term "Contract Securities" means
the Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
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
<PAGE>
2
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.
(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.
<PAGE>
3
(h) The Offered Securities have been duly authorized and, when
the Offered Securities have been executed and authenticated in accordance
with the provisions of the Indenture and delivered to and duly paid for by
the purchasers thereof, they will conform to the descriptions thereof in
the Prospectus, will be entitled to the benefits of the Indenture and will
be valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture and the Offered Securities will not contravene
any provision of applicable law or the certificate of incorporation or
bylaws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, considered as one enterprise, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and, to the best of the Company's
knowledge, no consent, approval or authorization of any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the Securities Act, the Exchange Act,
the Trust Indenture Act or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(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.
<PAGE>
4
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.
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 following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business
<PAGE>
5
or operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented as of the Closing Date, that, in the reasonable
judgment of the Manager, is material and adverse and that makes it,
in the reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated
in the Prospectus, as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading in securities generally on the New
York Stock Exchange, 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) declara tion 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;
(iii) There shall not have occurred any downgrading, nor shall
any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(b) The Manager shall have received on the Closing Date an opinion
of Thomas C. Nord, Vice President and General Counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion
of Pillsbury Madison & Sutro LLP, counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit B hereto.
(d) The Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect that the representations and warranties of the Company
contained herein are true and correct as of such date and the Company has
complied with all the agreements and satisfied all the conditions required by
this Agreement to be performed or satisfied by it at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(e) The Manager shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Manager, from
the independent public accountants of the Company, and from such other
independent public accountants as the Manager may reasonably request, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
<PAGE>
6
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) Prior to the termination of the offering of the Offered
Securities pursuant to this Agreement, the Company will not file any Prospectus
Supplement relating to the Offered Securities or any amendment to the
Registration Statement unless the Company has previously furnished to the
Manager a copy thereof for its review and will not file any such proposed
amendment or supplement to which the Manager reasonably objects; provided that
the foregoing requirement shall not apply to any of the Company's periodic
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, which filings the Company will cause to
be timely filed with the Commission and copies of which filings the Company will
cause to be delivered to the Manager promptly after being mailed for filing with
the Commission. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for filing to
the Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise the Manager (a) of the filing of any amendment or
supplement to the Basic Prospectus, (b) of the filing and effectiveness of any
amendment to the Registration Statement, (c) of any request by the Commission
for any amendment of the Registration Statement or any amendment of or
supplement to the Basic Prospectus or for any additional information, (d) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, or until the
distribution of any Offered Securities an Underwriter may own as principal has
been completed, any event occurs or condition exists as a result of which (i)
the Registration Statement or the Prospectus as then amended or supplemented
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or (ii) if, in the opinion of the Manager or in
the opinion of the Company, it is necessary at any time to amend or supplement
the Registration Statement or the Prospectus, as then amended or supplemented,
to comply with applicable law, the Company will immediately notify each
Underwriter by telephone (with confirmation in writing) to suspend solicitation
of offers to purchase Offered Securities or any resale thereof and, if so
notified by the Company, each Underwriter shall forthwith suspend such
solicitation or resale and cease using the Prospectus as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise the Underwriters promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Underwriter in such quantities as such Underwriter may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to the Underwriters pursuant to paragraph
(f) below and Sections VI(b) and (c) in connection with the preparation or
filing of such amendment or supplement, are satisfactory in all respects to each
Underwriter, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration
<PAGE>
7
Statement, such Underwriter will resume the solicitation of offers to purchase
Offered Securities or any resale thereof hereunder.
(c) The Company will make generally available to its security
holders and to the Manager as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve-month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the date of the Underwriting Agreement. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earnings
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish to the Manager without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and,
during the period mentioned in Section VII(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as the Manager may reasonably request.
(e) The Company will qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and will pay all reasonable expenses (including fees
and disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate, provided that the Company shall not be obligated to so qualify the
Offered Securities if such qualification requires it to file any general consent
to service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) During the term of the Underwriting Agreement, the Company shall
furnish to the Manager such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Offered Securities, the Underwriting Agreement and
the performance by the Company of its obligations hereunder or thereunder as the
Manager may from time to time reasonably request and shall notify the Manager
promptly in writing of any downgrading or of its receipt of any notice of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Offered Securities
is consummated, pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under securities or Blue Sky laws 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
<PAGE>
8
Offered Securities; (viii) any reasonable out-of-pocket expenses incurred by the
Underwriters with the approval of the Company and (ix) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, the Company will
not, without the prior consent of the Manager, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Offered Securities (other than (i) the Offered Securities that are to be
sold pursuant to such agreement, (ii) Offered Securities previously agreed to be
sold by the Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in any such agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the officers, directors, employees and agents of such Underwriter,
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages or liabilities caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (if
used within the period set forth in paragraph (b) of Section VII and as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or alleged omission based upon information furnished to the Company in writing
by or on behalf of such Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Underwriter, but only with reference to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
<PAGE>
9
in the case of parties indemnified pursuant to paragraph (b) above and by the
Company in the case of parties indemnified pursuant to paragraph (a) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Offered Securities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the Prospectus, bear to the total aggregate public offering price of such
Offered Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section VIII were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section VIII, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities offered and sold to the public through such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or allegedly untrue statement or
<PAGE>
10
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section VIII are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i)
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
If any one or more Underwriters shall fail to purchase and pay for
any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all the
remaining underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Offered Securities set forth in
the Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Offered Securities, and if such nondefaulting Underwriters do not purchase all
the Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section IX, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Manager shall determine in
order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
X.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall 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
<PAGE>
11
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 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>
12
Schedule I
DELAYED DELIVERY CONTRACT
__________, 1999
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 _________, 1999 and Prospectus
Supplement dated __________, 1999, 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 jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect,
<PAGE>
13
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>
14
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
Telephone No.
(Including
Name Area Code) Department
---- ---------- ----------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
<PAGE>
1
EXHIBIT A
Opinion of Thomas C. Nord, Vice President and General
Counsel for the Company
The opinion of the Vice President and General Counsel for the Company, to
be delivered pursuant to Section VI(b) of the document dated __________, 1999,
and entitled GATX Capital Corporation Underwriting Agreement Standard Provisions
(Debt Securities) shall be to the effect that:
(i) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership and leasing of its properties
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(ii) Each Significant Subsidiary has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership or leasing of its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(iii) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(iv) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, considered as one enterprise, or,
to the best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval or authorization of any governmental body
or agency is required for the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture and the Offered Securities,
except such as are specified and have been obtained and such as may be required
by the Securities Act, the Exchange Act, the Trust Indenture Act or the
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 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
<PAGE>
2
Statement or the Prospectus, as amended or supplemented, or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required.
(vi) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(vii) The Offered Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters [or by institutional investors, if any, pursuant to Delayed
Delivery Contracts], will be valid and binding obligations of the Company in
accordance with their terms.
(viii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
[(ix) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.]
(x) The statements in the Prospectus under the captions "Description of
Debt Securities" and "Description of the [Offered Securities]" and the
statements in the Prospectus incorporated by reference from Item 3 of the
Company's most recent annual report on Form 10-K, insofar as such statements
constitute summaries of the documents or proceedings referred to therein, fairly
present the information called for with respect to such 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 complied when so filed as to form in all material
respects with such Act and the rules and regulations thereunder, (2) believes
that (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) each part of the registration statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations thereunder and
(4) believes that (except as to financial statements and schedules and the
Statement of Eligibility and Qualification of the Trustee on Form T-1, as to
which such counsel need not express any belief) the Registration Statement and
the Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that his opinion and belief is based upon his participation in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and upon review and discussion of the contents thereof,
but is without independent check or verification except as otherwise specified,
including without limitation, the independent check or verification of the
mathematical computations contained in the
<PAGE>
3
Registration Statement and the Prospectus, and provided further, that 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." With
respect to clause (4), such counsel may state its opinion in the negative.
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 and the federal law of the United States, 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.
<PAGE>
1
EXHIBIT B
Opinion of Counsel for the Underwriters
The opinion of ____________, counsel for the Underwriters, to be delivered
pursuant to Section VI(c) of the document dated __________, 1999, and entitled
GATX Capital Corporation Underwriting Agreement Standard Provisions (Debt) shall
be to the effect that:
(i) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(ii) The Offered Securities, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.
(v) The statements in the Prospectus under the captions "Description of
Debt Securities," "Description of the [Offered Securities]" and ["Underwriting"]
insofar as such statements constitute summaries of the documents referred to
therein, fairly present the information called for with respect to such
documents.
(vi) Such counsel (1) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements and schedules and the Statement of Eligibility and
Qualification of the Trustee on Form T-1, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations thereunder and (2)
believes that (except as to financial statements and schedules and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) the Registration Statement and the
Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that its belief is based upon its participation in the
preparation of the Registration Statement and the Prospectus and any amendments
or supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including documents
incorporated by reference therein), but is without independent check or
verification except as specified.
EXHIBIT 4.6
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 such Indenture, be paid to the Person in whose
name this Security is registered at the close of business on the ________ or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.]
- 3 -
<PAGE>
[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:
Secretary
- 4 -
<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'
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'
notice by mail, (1) on ________ in any year commencing with the year ________
and ending with the year ________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning in the years indicated, 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 fund payments
may be credited against subsequent [mandatory] sinking fund payments otherwise
required to be made.]
- 6 -
<PAGE>
[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 than ________ days
prior to the Repayment Date. The exercise of the repayment option by the Holder
shall be irrevocable.
- 7 -
<PAGE>
[If the Security is not to be subject to redemption at the option of the
Company, insert--The Securities are not redeemable at the option of the Company
prior to Maturity.]
[If the Security is not to be an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is to be an Original Issue Discount Security, insert--If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company with the consent of the
Holders of not less than 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
[If the Security is to be registered form, insert--As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any, on) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and,
thereupon one or more new Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
- 8 -
<PAGE>
[The Securities of this series are issuable only in registered form
[without coupons] in denominations of $________ [and any integral multiple] [or
increments of $________ in excess] thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.]
[No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
[Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.]
[If the Security is a Global Security, insert--"Global Security" and
"Global Securities" means a Security or Securities evidencing all or a part of a
series of Securities, issued to the Depositary (as hereinafter defined) for such
Series or its nominee, and registered in the name of such Depositary or its
nominee. "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as the Depositary by the Company.
No holder of any beneficial interest in this Note held on its behalf by a
Depositary or a nominee of such Depositary shall have any rights under the
Indenture with respect to such Global Security, and such Depositary or nominee
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
This Note is exchangeable, in whole but not in part, for Notes registered
in the names of Persons other than the Depositary or its nominee or in the name
of a successor to the Depositary or a nominee of such successor depositary only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Note or if at any time such Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and, in either case, a successor depositary is not appointed by the
Company within 90 days, (ii) the Company in its discretion at any time
determines not to have all of the Notes of this series represented by one or
more Global Security or Securities and notifies the Trustee thereof, or (iii) an
Event of Default has occurred and is continuing with respect to the Notes of
this series. If this Note is exchangeable pursuant to the preceding sentence, it
shall be exchangeable for Notes issuable in authorized denominations and
registered in such names as the Depositary holding this Note 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
- 9 -
<PAGE>
Depositary or its nominee or in the name of a successor to the Depositary or a
nominee of such successor depositary.]
[The Indenture entitles Holders to receive annual reports with respect to
the Trustee's eligibility and qualifications to serve as Trustee by filing their
names and addresses with the Trustee for that purpose within two years preceding
the mailing of any such annual report.]
No recourse shall be had for the payment of the principal of (and premium,
if any, on) or interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security, including without limitation the obligation of the Company
contained herein to pay the principal of (and premium, if any, on) and interest
on this Security in accordance with the terms hereof and of the Indenture, shall
be construed in accordance with and governed by the laws of the State of New
York.
- 10 -
<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
- 11 -
<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.]
-1-
<PAGE>
GATX CAPITAL CORPORATION
__% NOTE DUE 20__
(FIXED RATE)
Interest Rate: Redemption Date and Prices:
Original Issue Date: Sinking Fund Dates and Amounts:
Maturity Date: Total Amount OID:
Initial Accrual Period OID:
Yield to Maturity:
Redemption at Option of Company: Yes__ No__
Redemption at Holder's Option: Yes__ No__
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for
value received, hereby promises to pay to , or registered assigns, the principal
amount of DOLLARS, on the Maturity Date shown above, and to pay interest thereon
at the rate per annum shown above until the principal hereon is paid or duly
made available for payment. The Company will pay interest (computed on the basis
of a 360-day year of twelve 30-day months) semiannually on April 1 and October 1
of each year (each an "Interest Payment Date") commencing with the Interest
Payment Date next following the Original Issue Date specified above (the
"Original Issue Date") (provided that, if the Original Issue Date is later than
March 15 or September 15 and prior to the next succeeding Interest Payment Date,
interest shall be so payable commencing with the second Interest Payment Date
following the Original Issue Date) and on the Maturity Date or the date of
redemption (the "Redemption Date") on said principal amount, at the Interest
Rate per annum specified above. Interest on this Note will accrue from the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid, from the Original Issue Date shown above
until the principal hereof has been paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the March 15 or the September 15,
whether or not a Business Day (as defined on the reverse hereof), as the case
may be, next preceding such Interest Payment Date; provided, however, that
interest payable on the Maturity Date shown above, or, if applicable, upon
redemption, will be payable to the Person to whom the principal hereof shall be
payable and provided, further, however, that if such Interest Payment Date would
fall
-2-
<PAGE>
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.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: __________________ GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-
mentioned Indenture.
By:
---------------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK, 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, Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and limitations of
rights thereunder of the Company, the Trustee and the Holders of the Securities,
and the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if any, at different
rates, may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Note is one of the Securities designated
as __% Notes Due 20__ (the "Notes"). The Notes may be issued at various times
with different maturity dates, redemption dates and different principal
repayment provisions, may bear interest at different rates and may otherwise
vary, all as provided in the Indenture.
If so provided on the face of this Note, this Note may be redeemed at the
option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if any,
from which this Note may be redeemed, this Note may be redeemed, in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Note shall be at least $1,000) at the option of the Company or a Holder, at
the redemption prices indicated on the face hereof, together with interest
thereon payable to the Redemption Date, on notice given (i) to the Trustee not
more than 60 days nor less than 30 days prior to the Redemption Date with
respect to redemption at the option of the Company or (ii) to the Trustee and
the Company at least 60 days prior to the Redemption Date with respect to
redemption at the option of a Holder. With respect to redemption at the option
of the Company, if less than all the Outstanding Notes having such terms as
specified by the Company are to be redeemed, the particular Notes to be redeemed
shall be selected by the Trustee not more than 60 days prior to the Redemption
Date from the Outstanding Notes having such terms as specified by the Company
are to be redeemed, the particular Notes to be redeemed shall be selected by the
Trustee not more than 60 days prior to the Redemption Date from the Outstanding
Notes having such terms as specified by the Company not previously called for
redemption, by such
-5-
<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
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<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.
------------------------------
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<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
FORM OF MEDIUM-TERM NOTE (FLOATING RATE)
REGISTERED Principal Amount: $ __________
No. FLD-_______ CUSIP
[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 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
MEDIUM-TERM NOTE, SERIES F
(FLOATING RATE)
Original Issue Date: Interest Reset Date(s):
Maturity Date:
Interest Rate Basis: Interest Reset Period:
Initial Interest Rate: Interest Payment Date(s)
Index Maturity:
Spread (plus or minus): Interest Payment Period:
Redemption at option of Holder: Yes __ No __
Redemption at option of Company: Yes __ No __
Maximum Interest Rate: Redemption Dates and Prices:
Minimum Interest Rate: Sinking Fund Dates and Amounts:
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for
value received, hereby promises to pay to__________________________________, or
registered assigns, the principal amount of ___________________ DOLLARS, on the
Maturity Date shown above and to pay interest thereon at the rate per annum
equal to the Initial Interest Rate shown above until the first Interest Reset
Date shown above following the Original Issue Date shown above and thereafter at
a rate determined in accordance with the provisions on the reverse hereof under
the heading "Determination of Commercial Paper Rate," "Determination of LIBOR
Rate," "Determination of Federal Funds Rate" or "Determination of Treasury
Rate," depending upon whether the Interest Rate Basis is Commercial Paper Rate,
LIBOR, Federal Funds Rate or Treasury Rate, as indicated above, until the
principal hereof is fully paid or duly made available for payment. The Company
will pay interest monthly, quarterly, semiannually or annually as indicated
above on each Interest Payment Date shown above commencing with the first
Interest Payment Date shown above immediately following the Original Issue Date
shown above, and on the Maturity Date shown above, or, if applicable, upon
redemption; provided, however, that if the Original Issue Date shown above is
between a Regular Record Date (as defined below) and an Interest Payment Date,
interest payments will commence on the Interest Payment Date following the next
succeeding Regular Record Date; and provided, further, however, that if an
Interest Payment Date would fall on a day that is not a Business Day (as defined
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<PAGE>
on the reverse hereof), such Interest Payment Date shall be the following day
that is a Business Day, except that, in the case that the Interest Rate Basis is
LIBOR, as indicated above, if such next Business Day falls in the next calendar
month, such Interest Payment Date will be the preceding day that is a Business
Day with respect to such LIBOR Note. Except as provided above and in the
Indenture referred to on the reverse hereof, interest payments will be made on
the Interest Payment Dates shown above. The "Regular Record Date" shall be the
date whether or not a Business Day 15 calendar days immediately preceding such
Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on the
Interest Payment Dates referred to above, will, as provided in the Indenture, be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest; provided, however, that interest payable on the Maturity Date
shown above, or, if applicable, the date of redemption (the "Redemption Date")
will be paid to the Person to whom the principal of this Note is payable. Any
such interest which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than ten days prior to such Special Record Date, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payments of principal and interest shall be made at the office or agency
of the Trustee maintained for that purpose in the Borough of Manhattan, The City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debt;
provided, however, that payment of interest on any Interest Payment Date (other
than the Maturity Date or Redemption Date, if any) may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the laws
of the State of New York.
This Note is one of the Medium-Term Notes, Series F of the Company.
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<PAGE>
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder by the manual signature of one of its authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ______________________________ GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture. By:_________________________
Authorized Signature
THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By:__________________________________ ____________________________
Authorized Signature Secretary
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<PAGE>
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES F
(FLOATING RATE)
This Note is one of a duly authorized issue of debentures, notes or other
evidences of indebtedness (hereinafter called the "Securities") of the Company
of the series hereinafter specified, all such Securities issued and to be issued
under the Indenture dated as of July 31, 1989, as supplemented and amended by
the Supplemental Indentures dated as of December 18, 1991, January 2, 1996 and
October 14, 1997 (herein called the "Indenture") between the Company and The
Chase Manhattan Bank, as the Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and limitations of rights thereunder of the Company, the
Trustee and the Holders of the Securities, and the terms upon which the
Securities are, and are to be, authenticated and delivered. As provided in the
Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of the Securities designated as Medium-Term Notes,
Series F (the "Notes"). The Notes may be issued at various times with different
maturity dates, redemption dates and different principal repayment provisions,
may bear interest at different rates and may otherwise vary, all as provided in
the Indenture.
The interest payable on this Note on each Interest Payment Date will
include accrued interest from and including the Original Issue Date set forth on
the face hereof (the "Original Issue Date") or from and including the last date
in respect of which interest has been paid, as the case may be, to, but
excluding, such Interest Payment Date; provided, however, that if the Interest
Reset Dates set forth on the face hereof (the "Interest Reset Dates") are daily
or weekly, interest payments shall include interest accrued only through and
including the Regular Record Date next preceding the applicable Interest Payment
Date except that the interest payment at maturity will include interest accrued
to but excluding such date. Accrued interest from the Original Issue Date or
from the last date to which interest has been paid is calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factors calculated for each day from
the Original Issue Date, or from the last date to which interest has been paid,
to the date for which accrued interest is being calculated. The interest factor
(expressed as a decimal calculated to seven decimal places without rounding) for
each such day is computed by dividing the interest rate applicable to such day
by 360, in the case of Notes with an interest rate determined by reference to
the "Commercial Paper Rate" (the "Commercial Paper Rate Notes"), the "Federal
Funds Rate" (the "Federal Funds Rate Notes"), and "LIBOR" ("LIBOR" Notes"), or
by the actual number of days in the
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<PAGE>
year, in the case of Notes with an interest rate determined by reference to the
"Treasury Rate" (the "Treasury Rate Notes"). The interest rate in effect on each
day will be (a) if such day is an Interest Reset Date, the interest rate with
respect to the Interest Determination Date (defined below) pertaining to such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date pertaining to the
next preceding interest Reset Date; provided, however, that (i) the interest
rate in effect from the Original Issue Date to the first Interest Reset Date
will be the initial Interest Rate as specified on the face hereof and (ii) the
interest rate in effect for the ten calendar days immediately prior to maturity
will be that in effect on the tenth calendar date preceding maturity.
Notwithstanding the foregoing, the interest rate hereon shall not be greater
than the Maximum Interest Rate, if any, shown on the face hereof (the "Maximum
Interest Rate"), or less than the Minimum Interest Rate, if any, shown on the
face hereof (the "Minimum Interest Rate"). All percentages resulting from any
calculations will be rounded, if necessary, to the nearest one-hundredth of a
percent, with five one-thousandths of a percent being rounded upwards. In
addition, the interest rate hereon shall in no event be higher than the maximum
rate, if any, permitted by applicable law.
Commencing with the first Interest Reset Date shown on the face hereof
following the Original Issue Date, and thereafter on each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on this Note
is payable shall be adjusted daily, weekly, monthly, quarterly, semiannually or
annually as specified on the face hereof under "Interest Reset Date(s)." Each
such adjusted rate shall be applicable on and after the Interest Reset Date to
which it relates to but not including the next succeeding Interest Reset Date or
until the Maturity Date or, if applicable, the Redemption Date shown on the face
hereof (the "Redemption Date"). The Interest Reset Date will be, if this Note
resets daily, each Business Day; if this Note resets weekly, the Wednesday of
each week (with the exception of weekly reset Treasury Rate Notes which will
reset the Tuesday of each week, except as specified below); if this Note resets
monthly, the third Wednesday of each month; if this Note resets quarterly, the
third Wednesday of March, June, September and December; if this Note resets
semiannually, the third Wednesday of the two months specified on the face
hereof; and if this Note resets annually, the third Wednesday of the month
specified on the face hereof. Subject to applicable law and except as specified
herein, on each Interest Reset Date, the rate of interest on this Note shall be
the rate determined in accordance with the provisions applicable below, plus or
minus the Spread (as specified on the face hereof), if any. If any Interest
Reset Date would otherwise be a day that is not a Business Day, such Interest
Reset Date shall be postponed to the next succeeding day that is a Business Day,
except that, in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
Business Day. "Business Day" means (i) with respect to any Note, any day that is
not a Saturday or Sunday, and that, in The City of New York, is neither a legal
holiday nor a day on which banking institutions or trust companies are
authorized or obligated by law to close, and (ii) with respect to LIBOR Notes
only, a London Banking Day. A "London Banking Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market. In the case of weekly reset Treasury Rate Notes, if an auction of
treasury bills falls on a day that is an Interest Reset Date for
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<PAGE>
Treasury Rate Notes, the Interest Reset Date will be the following day that is a
Business Day.
The Interest Determination Date (the "Interest Determination Date")
pertaining to an Interest Reset Date will be, if the Interest Rate Basis
(defined below) is the Commercial Paper Rate or the Federal Funds Rate, the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the Interest
Rate Basis is LIBOR, the second London Banking Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
will be, if the Interest Rate Basis is the Treasury Rate, the day of the week in
which such Interest Reset Date falls on which Treasury bills (as defined below)
of the Index Maturity specified on the face hereof are auctioned. Treasury bills
normally are auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such action may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. Interest payable hereon will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
specified on the face hereof. Unless otherwise shown on the face hereof,
interest will be payable. If this Note resets daily, weekly or monthly, on the
third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year; if this Note resets quarterly, on the third
Wednesday of March, June, September and December of each year; if this Note
resets semiannually, on the third Wednesday of the two months of each year
specified on the face hereof; and if this Note resets annually, on the third
Wednesday of the month specified on the face hereof (each such date being an
"Interest Payment Date") and in each case, at maturity or, if applicable, upon
redemption.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
specified on the face hereof (the "Interest Rate Basis") is "Commercial Paper
Rate," the interest rate shall equal (a) the Money Market Yield (as defined
below) on the applicable Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof (i) as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" ("H.15(519)"), or any successor publication,
under the heading "Commercial Paper" or (ii) in the event that such rate is not
published by the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading "Commercial
Paper" or (b) if neither of such yields is published by 3:00 P.M., New York City
time, on such Calculation Date, the Money Market Yield of the arithmetic mean of
the offered rates as of 11:00 A.M., New York City time, of three leading dealers
of commercial paper in The City of New York selected by The Chase Manhattan
Bank, as calculation agent (or any successor calculation agent, the "Calculation
Agent") on that Interest Determination Date, for commercial paper of the Index
Maturity specified on the face hereof (the "Index Maturity") placed for an
industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or
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<PAGE>
subtraction of the Spread, if any, specified on the face hereof; provided,
however, that if such dealers are not quoting as mentioned above, the interest
rate in effect hereon until the Interest Reset Date next succeeding the Interest
Reset Date to which such Interest Determination Date relates shall be the rate
in effect for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest for such period shall be the
Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360
------------------ x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face
hereof is "LIBOR," commencing on the second London Banking Day immediately
following the applicable Interest Determination Date the interest rate shall be
equal to either (i) the arithmetic mean (rounded upward if necessary to the
nearest one-sixteenth of one percent) as calculated by the Calculation Agent, of
the offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, which appear on the Reuters Screen LIBO Page (or
such other page as may replace the same), as of 11:00 A.M., London time, on such
Interest Determination Date or (ii) the rate for deposits in U.S. dollars having
the Index Maturity specified on the face hereof which appears on the Telerate
Page 3750 (or such other page or service as may replace the same) as of 11 A.M.,
London time, on such Interest Determination Date, in each case adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if less than two such offered rates appear on the
Reuters Screen LIBO Page or if no rate appears on Telerate Page 3750, as
applicable, the Calculation Agent shall request the principal London Office of
each of four major banks in the London interbank market selected by the
Calculation Agent to provide a quotation of the rate which such bank offered to
prime banks in the London interbank market at approximately 11:00 A.M., London
time, on such Interest Determination Date, on deposits in U.S. dollars having
the Index Maturity specified on the face hereof commencing on the second London
Banking Day immediately following such Interest Determination Date and in a
principal amount equal to an amount not less than U.S. $1,000,000 that is
representative of a single transaction in such market at such time, and such
rate of interest hereon shall equal the arithmetic mean (rounded upward if
necessary to the nearest one-sixteenth of one percent) of (a) such quotations,
if at least two quotations are provided, or (b) if less than two quotations are
provided, the rates quoted at approximately 11:00 A.M., New York City time, on
such Interest Determination Date by three major banks in The City of New York,
selected by the Calculation Agent (after consultation with the Company) for
loans in U.S. dollars to leading European banks, having the Index Maturity
specified on the face hereof
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<PAGE>
commencing on the second London Banking Day immediately following such Interest
Determination Date and in a principal amount as aforesaid, in either case,
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof; provided, however, that if the three banks selected as aforesaid by
the Calculation Agent are not quoting as mentioned above, the interest rate in
effect hereon until the Interest Reset Date next succeeding the Interest Reset
Date to which such Interest Determination Date relates shall be the rate in
effect for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest for such period shall be the
Initial Interest Rate).
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified
on the face hereof is "Federal Funds Rate," the interest rate shall equal (a)
the rate on the applicable Interest Determination Date specified on the face
hereof for Federal Funds (i) as published in the H.15(519), or any successor
publication, under the heading "Federal Funds (Effective)" or (ii) if such rate
is not so published by the Calculation Date pertaining to such Interest
Determination Date, then as published in the Composite Quotations under the
heading "Federal Funds/Effective Rate" or (b) if neither of such rates is
published by 3:00 P.M., New York City time, on such Calculation Date, the
arithmetic mean (as calculated by the Calculation Agent) of the rates for the
last transaction in overnight Federal Funds arranged by three leading brokers of
Federal Funds transactions in The City of New York selected by the Calculation
Agent as of 11:00 A.M., New York City time, on such Interest Determination Date,
in each of the above cases, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof; provided, however, that if such
brokers are not quoting as mentioned above, the interest rate in effect hereon
until the Interest Reset Date next succeeding the Interest Reset Date to which
such Interest Determination Date relates shall be the rate in effect for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest for such period shall be the Initial Interest
Rate).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on
the face hereof is "Treasury Rate," the interest rate shall equal the rate for
the auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as published in H.15(519), or any successor
publication, under the heading, "U.S. Government Securities-Treasury
bills--auction average (investment)" or, if not so published by the Calculation
Date pertaining to such Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof. In the event
that the results are not published or reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such auction is held in a
particular week, then the rate of interest herein shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates as of
approximately 3:30 P.M., New York City time, on such Interest Determination
Date, of three leading primary United
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<PAGE>
States government securities dealers selected by the Calculation Agent (after
consultation with the Company) for the issue of Treasury bills with a remaining
maturity closest to the Index Maturity specified on the face hereof, adjusted by
the addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned above, the interest rate in effect hereon
until the Interest Reset Date next succeeding the Interest Reset Date to which
such Interest Determination Date relates shall be the rate in effect for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest for such period shall be the Initial Interest
Rate).
The Calculation Date pertaining to an Interest Determination Date shall be
the tenth calendar day after such Interest Determination Date or if any such day
is not a Business Day, the next succeeding Business Day. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing and
will confirm in writing such calculation to the Trustee and any Paying Agent
immediately after each determination. Neither the Trustee nor any Paying Agent
shall be responsible for any such calculation. At the request of the Holder
hereof, the Calculation Agent will provide to the Holder hereof the interest
rate hereon then in effect and, if determined, the interest rate which will
become effective as of the next Interest Reset Date.
If so specified on the face of this Note, this Note may be redeemed at the
option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if any,
from which this Note may be redeemed, this Note may be redeemed in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Note shall be at least $1,000) at the option of the Company or a Holder, at
the redemption prices set forth on the face hereof, together with interest
thereon payable to the Redemption Date, on notice given (i) to the Trustee not
more than 60 days nor less than 30 days prior to the Redemption Date with
respect to redemption at the option of the Company; or (ii) to the Trustee and
the Company at least 60 days prior to the Redemption Date with respect to
redemption at the option of a Holder. With respect to redemption at the option
of the Company, if less than all the Outstanding Notes having such terms as
specified by the Company are to be redeemed, the particular Notes to be redeemed
shall be selected by the Trustee not more than 60 days prior to the Redemption
Date from the Outstanding Notes having such terms as specified by the Company
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate. Any notice by the Trustee of such redemption at the option
of the Company shall specify which Notes are to be redeemed. In the event of
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.
-10-
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and this Note duly executed by, the Holder
hereof or by the attorney duly authorized in writing by such Holder, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
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.
-11-
<PAGE>
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.
-------------------------
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
-12-
<PAGE>
face of this Note in every particular without
alteration or enlargement.
-13-
Exhibit 5
September 9, 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 $500 million
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. 333-34879.
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 form
of Debt Security and Notes included as Exhibits 4.6, 4.7 and 4.8 to the
Registration Statement, and (vi) originals or copies certified or authenticated
to my satisfaction of the Company's Restated Certificate of Incorporation, its
Bylaws and records of 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 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 General
Corporation Law of the State of Delaware. 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>
Six Months
Ended June 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 $ 55,229 $110,187 $ 94,305 $ 85,836 $ 68,396 $ 62,744
Capitalized interest 769 2,064 1,575 3,074 1,601 292
Portion of rents representing
interest factor (assumed to
approximate 33%) 7,192 13,802 13,169 10,849 6,574 5,122
Total Fixed charges 63,190 126,053 190,049 99,759 76,571 68,158
EARNINGS AVAILABLE FOR
FIXED CHARGES:
Income from continuing
operations 39,187 71,981 53,924 45,314 32,604 24,851
Add (deduct):
Income taxes (benefit) 26,262 51,267 36,366 32,286 22,740 18,785
Equity in net earnings of joint
ventures, net of dividends
received 3,594 6,159 39,031 8,740 13,522 14,322
Fixed charges (excluding
capitalized interest) 62,421 123,989 107,474 96,685 74,970 67,864
Total earnings available for
fixed charges $131,464 $253,306 $236,795 $183,025 $143,836 $125,822
Ratio of earnings to fixed
charges 2.08x 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 on or about September 9, 1999 and related Prospectus of GATX Capital
Corporation for the registration of $500,000,000 Senior and Subordinated Debt
Securities and to the incorporation by reference therein of our report dated
January 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.
/s/ Ernst & Young LLP
San Francisco, California
September 7, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification 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)____
-------------------------
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(I.R.S. Employer Identification No.)
101 California Street, San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
------------------
GATX Capital Corporation
(Exact name of Obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
94-1661392
(I.R.S. Employer Identification No.)
Four Embarcadero Center
San Francisco, California
(Address of principal executive offices)
94111
(Zip Code)
--------------------------------
Medium Term Notes, Series F Due 9 months to 30
years from Date of Issue
(Title of Indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C. Board of Governors of
the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see
Exhibit 1 to Form T-1 filed in connection with Registration
Statement No. 333-41329, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated by
reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-41329,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 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. 333-41329, which is incorporated by
reference).
Exhibit 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.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chase Manhattan Bank and Trust Company, National Association, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of San
Francisco, and State of California, on the 9th day of September 1999.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ Mitch Gardner
-----------------------------
Mitch Gardner
Assistant Vice President
<PAGE>
Exhibit 7. Report of Condition of the Trustee.
Consolidated Report of Condition of Chase Manhattan Bank and Trust Company, N.A.
--------------------------------------------
(Legal Title)
Located at 1800 Century Park East, Ste. 400 Los Angeles, CA 94111
---------------------------------------------------------------------
(Street) (City) (State) (Zip)
as of close of business on June 30, 1999
-----------------------------------------------------
================================================================================
================================================================================
<TABLE>
<S> <C> <C>
ASSETS DOLLAR AMOUNTS IN THOUSANDS
1. Cash and balances due from
a. Noninterest-bearing balances and currency and coin (1,2) 1,910
b. Interest bearing balances (3) 0
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A) 0
b. Available-for-sale securities (from Schedule RC-B, column D) 1,266
3. Federal Funds sold (4) and securities purchased agreements to resell 60,200
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) 50
b. LESS: Allowance for loan and lease losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 50
5. Trading assets 0
6. Premises and fixed assets (including capitalized leases) 233
7. Other real estate owned (from Schedule RC-M) 0
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 0
9. Customers liability to this bank on acceptances outstanding 0
10. Intangible assets (from Schedule RC-M) 1,203
11. Other assets (from Schedule RC-F) 2,064
12a. TOTAL ASSETS 66,926
</TABLE>
(1) includes cash items in process of collection and unposted debits.
(2) The amount reported in this item must be greater than or equal to the sum
of Schedule RC-M, items 3.a and 3.b
(3) includes time certificates of deposit not held for trading.
(4) Report "term federal funds sold" in Schedule RC, item 4.a "Loans and
leases, net of unearned income" and in Schedule RC-C, part 1.
4
<PAGE>
<TABLE>
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E) 37,379
(1) Noninterest-bearing 5,680
(2) Interest-bearing 31,699
b. In foreign offices, Edge and Agreement subsidiaries, and IBF'
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased (2) and securities sold under agreements to
repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading liabilities 0
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
a. With a remaining maturity of one year or less 0
b. With a remaining maturity of more than one year through three years 0
c. With a remaining maturity of more than three years 0
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 0
19. Subordinated notes and Debentures (3) 0
20. Other liabilities (from Schedule RC-G) 4,218
21. Total liabilities (sum of items 13 through 20) 41,597
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 0
24. Common stock-- 600
25. Surplus (exclude all surplus related to preferred stock) 12,590
26. a. Undivided profits and capital reserves 12,139
b. Net unrealized holding gains (losses) on available-for-sale securities 0
27. Cumulative foreign currency translation adjustments
28. a. Total equity capital (sum of items 23 through 27) 25,329
29. Total liabilities, equity capital, and losses deferred pursuant to 12 U.S.C.
1823 (j) (sum of items 21 and 28.c) 66,926
</TABLE>
Memorandum
To be reported only with the March Report of Condition
1. Indicate in the box at the right the number of the statement below
that best describes The most comprehensive level of auditing work
performed for the bank by independent external auditors as of any
date during 1998
================================================================================
5
