Exhibit 1.1
GATX CAPITAL CORPORATION
Medium-Term Notes, Series E
DISTRIBUTION AGREEMENT
[Date]
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Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $182,000,000 aggregate principal amount of its Medium-Term
Notes, Series E (the "Notes"). The Notes are to be issued under an indenture
dated as of July 31, 1989, as supplemented and amended by supplemental
indentures dated as of December 18, 1991, January 2, 1996 and October 14, 1997
(collectively, the "Indenture"), between the Company and The Chase Manhattan
Bank (the "Trustee") and will bear interest, if any, at rates and will have the
terms to be provided in a supplement to the Basic Prospectus referred to below.
The terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents filed by the Company with the Commission subsequent
to the date of the Basic Prospectus pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") that are deemed to be incorporated by reference in the
Prospectus.
Subject to the reservation by the Company of the right to sell Notes
directly to investors on its own behalf, the Company hereby appoints you as its
agents (the "Agents") for the purpose of soliciting and receiving offers to
purchase the Notes from the Company by others and, so long as this Agreement
shall remain in effect with respect to any Agent, on the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, the Company agrees that if and whenever the Company
determines to sell Notes directly to any Agent as principal for resale to others
it will enter into a Terms Agreement relating to each such sale as defined in
and in accordance with the provisions of Section 2(b) hereof. The Company may
from time to time offer Notes for sale otherwise than through the Agents;
provided, however, that (i) so long as this Agreement shall remain in effect,
the Company shall not solicit or accept offers to purchase Notes through any
agent other than the Agents unless such other agent shall
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have entered into an agreement with the Company containing terms substantially
the same as those set forth in this Agreement, and (ii) promptly following the
acceptance by the Company of any offer to purchase Notes through any other such
agent, the Company shall provide the Agents with notice in writing or by
telecopy of the terms of such sale. In acting under this agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of agency
or trust with any purchaser of the Notes or assume any obligation towards, or
any liability as the result of any act or failure to act of, the other Agent.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Agents as of the Commencement Date (as
hereinafter defined), as of each date on which an Agent solicits offers to
purchase Notes, as of each date on which the Company accepts an offer to
purchase Notes including any purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise, as of each date the Company issues and sells
Notes, and as of each date the Registration Statement (as hereinafter defined)
or the Basic Prospectus (as hereinafter defined) is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus (as hereinafter defined), each as amended and
supplemented to each such date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Securities Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (Registration No. 333-34879) and such registration statement has
become effective for the registration under the Securities Act of the Notes.
Such registration statement including the exhibits thereto, is hereinafter
called the "Registration Statement." The Indenture has been qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Company has duly
authorized the issuance of the Notes. The Registration Statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies in all other material respects with said Rule. The Company proposes to
file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act, supplements to the prospectus relating to the Registration
Statement that will, among other things, describe certain terms of the Notes.
The prospectus in the form in which it is first filed pursuant to Rule 424(b)
under the Securities Act is called the Basic Prospectus. The term "Prospectus"
means the Basic Prospectus together with any amendments thereto and any
prospectus supplements (a "Prospectus Supplement"), as filed with, or included
for filing with, the Commission pursuant to Rule 424 under the Securities Act.
Any reference herein to the Registration Statement, Basic Prospectus and
Prospectus shall be defined to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 filed under the Securities
Act.
(b) The Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
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(c) (i) Each document if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iv) the Registration Statement
and the Prospectus do not and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (A) the representations and warranties set forth in this Section
1(c) do not apply (x) to statements or omissions in the Registration Statement
or the Prospectus based upon information concerning the Agents furnished to the
Company in writing by the Agents expressly for use therein or (y) to that part
of the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee and (B)
the representations and warranties set forth in clauses (iii) and (iv) above,
when made as of the Commencement Date or as of any date on which an Agent
solicits offers to purchase Notes or on which the Company accepts an offer to
purchase Notes, shall be deemed not to cover information concerning an offering
of particular Notes to the extent such information will be set forth in a
Prospectus Supplement.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(e) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 405 of Regulation C promulgated pursuant to the
Securities Act (a "Significant Subsidiary") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
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(f) Each of this Agreement and any applicable Terms Agreement
has been duly authorized by the Company and is a valid and binding agreement of
the Company, except as rights to indemnify hereunder or thereunder may be
limited under applicable law. Each of this Agreement and any applicable Written
Terms Agreement (as defined in Section 2(b)) has been duly executed and
delivered.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditor's
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The forms of Notes have been duly authorized and, when the
Notes have been executed and authenticated in accordance with the provisions of
the Indenture and delivered to and duly paid for by the purchasers thereof, they
will conform to the descriptions thereof in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and legally binding obligations
of the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Notes and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
considered as one enterprise, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and, to the best of the Company's knowledge, no consent, approval or
authorization of any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the Indenture, the Notes
or any applicable Terms Agreement, except such as may be required by the
Securities Act, the Exchange Act, the Trust Indenture Act or the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Notes.
(j) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, considered as one enterprise, from that set forth
in the Prospectus.
(k) There are no legal or governmental proceedings pending or
to the best of the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the Company
or any of
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its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company knowledge, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant
Subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, as then amended or supplemented, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each
Agent will use its best efforts to solicit offers to purchase Notes upon the
terms and conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of telephonic notice
confirmed in writing from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Section 5; provided that if the Registration Statement or the Prospectus is
amended or so supplemented (other than by an amendment or supplement providing
solely for a change in interest rates, redemption provisions or maturities
offered on the Notes or for a change deemed immaterial in the reasonable opinion
of the Agents), the Agents shall not be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions or
letters as reasonably requested by any Agent.
The Company agrees to pay each Agent, as consideration for the sale
of each Note resulting from a solicitation made by such Agent, a commission in
the form of a discount from the purchase price of each Note equal to between
___% and ___% of the principal amount of such Note as more fully set forth in
Exhibit A hereto. The Agents are authorized to solicit offers to purchase Notes
only in principal amounts of $100,000 or any amount in excess thereof that is a
whole multiple of $1,000. Each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes that should, in the reasonable judgment
of such Agent, be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any such offer in whole
or in part. Each Agent shall have the right to reject in whole or in part, in
its discretion reasonably exercised, any offer received by
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it to purchase the Notes, and any such rejection shall not be deemed a breach of
its agreements contained herein.
(b) Purchases as Principal. If requested by an Agent in
connection with a sale of Notes directly to such Agent as principal for its own
account, the Company will enter into a separate Terms Agreement that will
provide for the sale of such Notes to and the purchase by such Agent in
accordance with the terms of this Agreement and the Terms Agreement. Each Terms
Agreement shall take the form of either (i) a written agreement substantially in
the form of Exhibit B hereto or in the form of an exchange of any form of
written telecommunication between such Agent and the Company (any such written
agreement hereinafter a "Written Terms Agreement") or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company. Such Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
agreement by an Agent to purchase Notes as principal (whether or not set forth
in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date thereof the price to
be paid to the Company for such Notes, the interest rate or interest rate
formula, if any, applicable to such Notes and any other terms of such Notes.
Each agreement shall also specify any requirements for officers' certificates
opinions of counsel and letters from the independent public accountants of the
Company. Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Procedures (as defined below). Each date of delivery of and payment for Notes to
be purchased by an Agent as principal, whether pursuant to a Term Agreement or
otherwise, is referred to herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Medium-Term Notes, Series E Administrative Procedures
(attached hereto as Exhibit C) (the "Procedures"), as amended from time to time.
The Procedures may be amended only by written agreement of the Company and the
Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement shall be delivered at the office of Pillsbury
Madison & Sutro LLP, not later than 3:00 P.M. San Francisco time on the date
hereof, or at such other time as the Agents and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the date
on which the Agents begin soliciting offers to purchase Notes and (ii) the first
date on which the Company accepts any offer by an Agent to purchase Notes as
principal. The date of delivery of such documents is referred to herein as the
"Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
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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
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cease using the Prospectus as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus as then
amended or supplemented, it shall so advise the Agents promptly by telephone
(with confirmation in writing) and, at its expense, shall prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus as then amended or supplemented that will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to each Agent in such quantities as such
Agent may reasonably request. If such amendment or supplement, and any
documents, certificates and opinions furnished to the Agents pursuant to
paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation or filing of such amendment or supplement, are satisfactory in all
respects to each Agent, upon the filing of such amendment or supplement with the
Commission or effectiveness of an amendment to the Registration Statement, such
Agent will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b), until the distribution
of any Notes an Agent may own as principal has been completed if any event
described above in this paragraph (b) occurs, the Company will, at its own
expense, forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented, satisfactory in all respects to such Agent, and will
supply such amended or supplemented Prospectus to such Agent in such quantities
as such Agent may reasonably request. If such amendment or supplement and any
documents, certificates, opinions and letters furnished to each Agent pursuant
to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in all
respects to such Agent, upon the filing of such amendment or supplement with the
Commission or effectiveness of an amendment to the Registration Statement, such
Agent may resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve month periods
beginning, in each case, not later than the first day of the Company fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earnings statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and
during the period mentioned in Section 3(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as each Agent may reasonably request.
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(e) The Company will qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agent shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as either Agent may designate, provided
that the Company shall not be obligated to so qualify the Notes if such
qualification requires it to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified.
(f) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as either Agent may from time to time reasonably request and shall
notify each Agent promptly in writing of any downgrading or of its receipt of
any notice of (A) any intended or potential downgrading or (B) any review or
possible change that does not indicate the direction of a possible change in the
rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(9)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company; (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the reasonable fees and
disbursements of counsel for the Agents incurred in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder.
(h) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without the prior consent of each Agent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company substantially
similar
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to the Notes (other than (i) the Notes that are to be sold pursuant to such
agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase the Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof prior to or concurrently with any such solicitation or purchase, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified below:
(a) Prior to such solicitation or purchase, as the case may be,
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made that in the reasonable judgment of the
relevant Agent or such purchaser, as the case may be, is material and
adverse and that makes it, in the reasonable judgment of such Agent or
such purchaser, impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc. the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade;
(B) suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market (C) declaration of a general moratorium
on commercial banking activities in New York by either federal or New York
state authorities or (D) any outbreak or escalation of any hostilities or
any change in financial markets or any calamity or crisis that, in the
reasonable judgment of the relevant Agent or such purchaser, as the case
may be, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in the
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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 ▇▇▇▇▇▇ ▇.
▇▇▇▇, Vice President and General Counsel for the Company (or other counsel
to the Company acceptable to the Agents), to the effect that:
(A) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Delaware and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or the ownership and leasing of its properties requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and
12
is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or the
ownership or leasing of its property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(C) Each of the Company and its subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent that
the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(D) The Indenture has been duly authorized,
executed and delivered by the Company, is a valid and binding
agreement of the Company, enforceable in accordance with its terms,
and has been duly qualified under the Trust Indenture Act.
(E) The form of fixed rate note and the form of
floating rate note have been duly authorized and established in
conformity with the provisions of the Indenture and when the Notes
have been executed and authenticated by the Trustee or its duly
appointed agents in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof, they
will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms and will be entitled to
the benefits of the Indenture.
(F) Each of this Agreement and any applicable
Terms Agreement has been duly authorized by the Company and each of
this Agreement and any written Terms Agreement has been duly
executed and delivered by the Company.
(G) The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the Indenture, the Notes and any applicable Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or bylaws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
considered as one enterprise, or, to
13
the best of such counsel's knowledge, any judgment, order or decree
of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
the Indenture, the Notes or any applicable Terms Agreement, except
such as are specified and have been obtained and such as may be
required by the Securities Act, the Exchange Act, the Trust
Indenture Act or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(H) The statements (1) in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"; (2) in
Item 3--Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in such Prospectus and
(3) in Item 15 of the Registration Statement, as amended or
supplemented, and in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
(I) To the best of such counsel's knowledge, after
due inquiry, there are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, and is not so described, or of any statute, regulation
contract or other document that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to the Registration
Statement or the Prospectus, as amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(J) Such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act (except as to
financial statements and schedules, as to which such counsel need
not express any opinion and except for that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1)) and incorporated by reference in the
Registration Statement and the Prospectus, as amended or
supplemented, complied when so filed as to form in all material
respects with such act and the rules and regulations thereunder, (2)
believes that (except as to financial statements and schedules as
14
to which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the Form
T-1 heretofore referred to) each part of the Registration Statement
as amended if applicable when such part became effective or was
incorporated by reference into the Registration Statement, did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented,
if applicable (except as to financial statements and schedules
included therein as to which such counsel need not express any
opinion and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to), comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations thereunder and (4) believes that (except as to
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable, as of the Commencement Date or the date
of any agreement by an Agent to purchase notes as principal, as the
case may be, and, as of the date such opinion is delivered, do not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may qualify any opinion as
to enforceability by stating that (x) such enforceability may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
Such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the States of New York and California and the
federal law of the United States, upon opinions of other counsel (copies
of which shall be delivered to each Agent), who shall be counsel
satisfactory to counsel to the Agents, in which case the opinion shall
state that such counsel believes the Agents and counsel to the Agents are
entitled so to rely. Such counsel may also state that, insofar as such
opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials. With respect to paragraph (J) in
Section 4(b)(i) above, such counsel need not express any opinion as to the
information included under the heading "Certain United States Federal Tax
Consequences" and with respect to clauses (3) and (4) of (J) in Section
4(b)(i) above, such counsel may state that his opinion and belief are
based upon his participation in the preparation of the Registration
Statement and the Prospectus and any amendments or supplements thereto
(other than the documents
15
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but are without
independent check or verification except as specified.
(ii) The opinion dated as of such date, of Pillsbury
Madison & Sutro LLP, special counsel for the Agents, covering the matters
in paragraphs (D), (E) (F) and (H) (with respect to statements in the
Prospectus under the captions "Description of Notes" and "Plan of
Distribution"), and clauses (3) and (4) of paragraph (J) in Section
4(b)(i) above. In rendering such opinions, Pillsbury Madison & Sutro LLP
may qualify any opinions as to enforceability by stating that such
enforceability may be limited by bankruptcy, insolvency reorganization,
liquidation, moratorium and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). With respect to clause (4) of paragraph (J) in
Section 4(b)(i) above, such counsel may state its opinion in the negative
and with respect to clauses (3) and (4) of paragraph (J), such counsel may
state that its opinion and belief are based upon its participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated
by reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
16
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents), the Company will deliver or cause to
be delivered forthwith to any Agent requesting it in writing, a certificate
signed by an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to each
Agent, of the same tenor as the certificate referred to in Section 4(c) relating
to the Registration Statement or the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company shall furnish or cause to be furnished forthwith to
each Agent a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form reasonably satisfactory to each Agent and shall be of the same tenor
as the opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to each Agent may furnish to such Agent a letter to the effect
that such Agent may rely on such last opinion to the same extent as though it
were dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such letter).
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish to any Agent
requesting it in writing a letter, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to such Agent,
of the same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
(d) In the event that the Company issues any Notes that are
not exempt from the usury provisions of Section 1 of Article XV of the
California Constitution ("California usury law"), the interest rate on such
Notes shall bear interest at a rate or rates not exceeding that permitted under
California usury law.
17
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person, if any, who controls such Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages or liabilities caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made
not misleading except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
alleged omission based upon information furnished to the Company in writing by
or on behalf of such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Agent, but only with reference to information relating to such Agent furnished
in writing by such Agent expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be mutually agreed upon by the Agents who are
parties to any such proceeding and designated in writing by either of the Agents
included in any such proceeding after consultation with such other Agents who
are parties to such
18
proceeding, in the case of parties indemnified pursuant to paragraph (b) above
and by the Company in the case of parties indemnified pursuant to paragraph (a)
above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses of counsel
as contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agent or Agents, as the case may be, on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Agent or Agents, as the case may
be, on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agent or Agents, as the case may be, on the other in connection
with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be on the other shall be determined by reference to
among other things, whether the untrue or allegedly untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
19
(e) The Company and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Agents were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes offered and sold to the
public through such Agent exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company, and
not as principal, and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission such Agent would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time either
by the Company or, as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. Any Terms Agreement shall be subject to
termination in the absolute discretion of each Agent on the terms set forth
therein. The termination of this Agreement shall not require termination of any
agreement by an Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last two sentences of Section 3(b) and Sections 3(c), 3(g), 6
7, 9, 11 and 14 shall survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of such Notes has not occurred, the
provisions of Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(h), 4 and 5 shall
20
also survive until such delivery has been made. If any Terms Agreement is
terminated, the provisions of Sections 3(c), 3(g), 6 and 9 and the last two
sentences of Section 3(b) (which shall be deemed to have been incorporated by
reference in such Terms Agreement) shall survive.
9. Representations and Indemnities To Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and any of the Agents set forth in or
made pursuant to this Agreement or any agreement by any Agent to purchase Notes
as principal will remain in full force and effect, regardless of any
investigation made by or on behalf of any of the Agents or the Company or any of
the officers, directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Notes.
10. Notices. Unless a notice is expressly required to be given by
telephone hereunder all communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to ________ at ________________, Attention:
____________ (telecopy number: ________), ; or, if sent to the Company, will be
mailed, delivered or telecopied and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (telecopy number: (415)
995-3493).
11. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing end is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under this
Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will he governed by and construed
in accordance with the internal laws of the State of New York applicable to a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
21
15. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the Agents.
Very truly yours,
GATX CAPITAL CORPORATION
By
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above-written.
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
[Name of Agent]
By
---------------------------------
Name:
Title:
EXHIBIT A
MEDIUM-TERM NOTES, SERIES E
COMMISSION SCHEDULE
Term Commission Rate
%
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to and including 15 years
From 15 years to and including 20 years
From 20 years to and including 30 years
A-1
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES E
TERMS AGREEMENT
__________, 19__
GATX Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement
dated October __, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes, Series E: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
Purchase price: Interest rate: Base rate:
Settlement date: Amortization Index maturity:
schedule:
Place of delivery: Spread:
Maturity date: Initial interest rates:
Interest payment dates: Initial interest reset date:
Original issue discount Interest reset dates:
provisions:
Redemption provisions: Maximum rate:
Other terms: Minimum rate:
Interest reset period:
Calculation agent:
B-1
[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
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note, Series E
Administrative Procedures
Medium-Term Notes, Series E (the "Notes") in the aggregate principal
amount of $_______ are to be offered on a continuing basis by GATX Capital
Corporation (the "Company"). Salomon Brothers Inc, Chase Securities Inc., UBS
Securities and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (the "Agents") have agreed to solicit
purchases of the Notes, as agents for the Company, or to purchase Notes, as
principal, for their own account. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated October __, 1997
(the "Agreement"). The Notes have been registered with the Securities and
Exchange Commission (the "Commission") and will be offered pursuant to a
Prospectus relating to the Notes (the "Prospectus"). The Chase Manhattan Bank
(the "Trustee") is the trustee under the Indenture dated as of July 31, 1989, as
supplemented and amended by the Supplemental Indentures dated as of December 18,
1991, January 2, 1996 and October 14, 1997, covering the Notes (the
"Indenture"). Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Indenture and if not defined therein, then
such capitalized terms shall have the respective meanings set forth in the Notes
(which in the case of Book Entry Notes (as defined below) shall be the related
global Note).
The Notes will either be issued (a) in book-entry form and
represented by one or more global Notes delivered to the Trustee as custodian
for The Depository Trust Company ("DTC") (or on behalf of such other depositary
as is identified in the applicable Pricing Supplement, provided that such
depositary shall execute a letter of representation and a Medium-Term Note,
Series E certificate agreement with the Trustee with respect to the Notes), and
recorded in the book-entry system maintained by DTC and registered in the name
of DTC's nominee (each, a "Book-Entry Note"), or (b) in the form of a
Certificate issued in definitive form (a "Certificated Note").
Administrative procedures and specific terms of the offering are
explained below. Owners of beneficial interests in Book-Entry Notes will be
entitled to physical delivery of Certificated Notes equal in principal amount to
their respective beneficial interests only upon certain limited circumstances
described in the Prospectus.
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part III hereof.
C-1
PART 1: GENERAL
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall also
bear an original issue date (the "Original Issue
Date"). The Original Issue Date shall remain the
same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by the
purchaser and agreed to by the Company which is not
less than nine months nor more than thirty years
from its Original Issue Date; provided, however,
that Floating Rate Notes will bear interest
pursuant to the interest rate formula stated
therein and in the applicable Pricing Supplement
and will mature on an Interest Payment Date.
Price To Public: Each Note will be sold at 100% of principal amount
(unless otherwise agreed in a Terms Agreement as
defined in the Distribution Agreement).
Interest Payments: Each payment of interest on Fixed Rate Notes will
include interest accrued through the day preceding,
as the case may be, the Interest Payment Date or
Stated Maturity (each Stated Maturity is referred
to herein as "Maturity"). Unless otherwise
indicated in the applicable Pricing Supplement,
interest payments on each Floating Rate Note
(except in the case of Floating Rate Notes which
reset daily or weekly) shall be the amount of
interest accrued from, and including, the next
preceding Interest Payment Date in respect of which
interest has been paid (or from, and including, the
date of original issue if no interest his been paid
with respect to such Floating Rate Note) to, but
excluding, the Interest Payment Date. In the case
of Floating Rate Notes on which the interest is
reset daily or weekly, however, the interest
payments shall include interest accrued from, but
excluding, the next preceding Regular Record Date
in respect of which interest has been paid (or
from, and including, the date of original issue if
no interest has been paid with respect to such
Floating Rate Note) to, and including, the Regular
Record Date next preceding the applicable Interest
C-2
Payment Date, except that the interest payment at
Maturity will include interest accrued to, but
excluding, such date.
Regular Record Dates: The Regular Record Date with respect to any
Interest Payment Date for a Fixed Rate Note shall
be the March 15 or September 15 preceding such
Interest Payment Date. The Regular Record Date with
respect to any Interest Payment Date for a Floating
Rate Note shall be the date 15 calendar days
(whether or not a Business Day) (as hereinafter
defined) preceding such Interest Payment Date.
Interest Payment Dates: Interest payments will be made on each payment date
commencing with the first Interest Payment Date
following the Original Issue Date; provided,
however, the first payment of interest of any Note
originally issued between a Regular Record Date and
an Interest Payment Date will occur on the Interest
Payment Date following the next succeeding Regular
Record Date to the registered owner on such next
succeeding Regular Record Date.
If an Interest Payment Date with respect to any
Note would otherwise fall on a day that is not a
Business Day with respect to such Note, such
Interest Payment Date will be the following day
that is a Business Day with respect to such Note,
except that, in the case of a LIBOR Note, if such
day falls in the next calendar month, such Interest
Payment Date will be the preceding day that is a
Business Day with respect to such LIBOR Note.
Fixed Rate Notes: Interest payments on Fixed Rate Notes will be made
semiannually on April 1 and October 1 of each year
and at Maturity.
Floating Rate Notes: Unless otherwise stated in the applicable Pricing
Supplement, interest will be payable in the case of
the Floating Rate Notes which reset daily, weekly
or monthly, on the third Wednesday of each month or
on the third Wednesday of March, June, September
and December of each year, in the case of Floating
Rate Notes which reset quarterly, on the third
Wednesday of March, June, September and December of
each year; in the case of Floating Rate Notes which
reset
C-3
semiannually, on the third Wednesday of the two
months of each year specified in the Floating Rate
Note and in the case of Floating Rate Notes which
reset annually, on the third Wednesday of the month
specified in the Floating Rate Note and, in each
case, at Maturity or, if applicable, upon
redemption or optional repayment. For additional
special provisions relating to Floating Rate Notes,
see the Prospectus.
Calculation of Interest: In the case of Fixed Rate Notes, interest
(including payments for partial periods) will be
calculated and paid on the basis of a 360-day year
of twelve 30-day months. In the case of Floating
Rate Notes, interest will be calculated and paid on
the basis of the actual number of days in the
interest period divided by 360 for Commercial Paper
Rate Notes, Federal Funds Rate Notes, and LIBOR
Notes, and on the basis of the actual number of
days in the interest period divided by the actual
number of days in the year for Treasury Rate Notes
and on any other basis as set forth in the
applicable Pricing Supplement. Floating Rate Notes
will have daily, weekly, monthly, quarterly,
biannual or annual resets of the rate of interest
which will be specified in the applicable Pricing
Supplement and in the applicable Note.
Acceptance of Offers: The Company will have the sole right to accept
offers to purchase Notes. Each Agent will
communicate, orally or in writing, each reasonable
offer to purchase Notes received by it. The Company
may reject any offer in whole or in part and will
promptly notify such Agent of any such rejection.
Each Agent may without notice to the Company reject
any offer received by it in whole or in part in its
discretion reasonably exercised.
Preparation of Pricing If any offer to purchase a Note is accepted by the
Supplements: Company, the Company, with the approval of the
Agent which presented such offer (the Presenting
Agent), will prepare a Pricing Supplement
reflecting the terms of such Note and file such
Pricing Supplement and the plan of distribution
thereof (the "Supplemented Prospectus"), with the
Commission in accordance with Rule 424 under the
Securities Act. The Presenting Agent will cause a
stickered Supplemented Prospectus to be delivered
to the purchaser of the Note.
C-4
In each instance that a Pricing Supplement is
prepared, the Agents will affix the Pricing
Supplement to Supplemented Prospectuses prior to
their use. Outdated Pricing Supplements, and the
Supplemented Prospectuses to which they are
attached (other than those retained for files) will
be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute "settlement."
All offers accepted by the Company will be settled
within three Business Days after the date of such
acceptance by the Company at a time as the
purchaser and the Company shall agree (but no
earlier than the next Business Day) pursuant to the
timetable for settlement set forth in Parts II and
III hereof under "Settlement Procedures" with
respect to Book- Entry Notes and Certificated
Notes, respectively. If Settlement Procedures A and
B with respect to a particular offer are not
completed on or before the time set forth under the
applicable "Settlement Procedures Timetable," such
offer shall not be settled until the Business Day
following the completion of Settlement Procedures A
and B or such later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be
set forth in the applicable Terms Agreements to be
entered into between such Agent and the Company
pursuant to the Distribution Agreement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the administration of Book-Entry Note procedures,
the Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated _____, 199_ (the
"Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Interest Rate, Original Issue Date,
Maturity
C-5
Date Redemption Date and Prices, if any, Sinking
Fund Dates and Accounts, if any, and Original Issue
Discount features, if any (collectively, the "Fixed
Rate Terms"), will be represented initially by a
single Book-Entry Note and all Floating Rate Notes
issued in book-entry form having the same Original
Issue Date, base rate upon which interest may be
determined (each an "Interest Rate Basis"), which
may be the Commercial Paper Rate, the Federal Funds
Date, the Treasury Rate, LIBOR or any other rate
set forth by the Company, Initial Interest Rate,
Index Maturity, Spread, if any, Minimum Interest
Rate, if any, Maximum Interest Rate, if any,
Redemption Dates and Prices, if any, Sinking Fund
Dates and Amounts, if any, Original Issue Discount
features, if any, Interest Reset Dates, Interest
Payment Dates and Maturity (collectively, "Floating
Rate Terms") will be represented initially by a
single Book-Entry Note.
Each Book-Entry Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Book-Entry Note will bear an Interest Accrual Date,
which will be (a) with respect to an original
Book-Entry Note (or any portion thereof), its
Original Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry Note or
in lieu of a destroyed, lost or stolen Book-Entry
Note, the most recent Interest Payment Date to
which interest has been paid or duly provided for
on the predecessor Book-Entry Note or Notes (or if
no such payment or provision has been made, the
Original Issue Date of the predecessor Book-Entry
Note or Notes), regardless of the date of
authentication of such subsequently issued
Book-Entry Note. No Book-Entry Note shall represent
any Note issued in certificated form.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of
approximately [___] CUSIP numbers which have been
reserved for future assignment to Book-Entry Notes
representing Notes issued in book-entry form and
the Company has delivered to the Trustee and DTC an
initial written list of [___] of such CUSIP
numbers. The Company will assign CUSIP numbers to
Book-Entry Notes as
C-6
described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned
to Book-Entry Notes. The Trustee will notify the
Company at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to
Book-Entry Notes, and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Book-Entry Notes representing Notes
issued in book-entry form. Upon obtaining such
additional CUSIP numbers, the Company will deliver
a list of such additional numbers to the Trustee
and DTC.
Registration: Each Book-Entry Note will be registered in the name
of Cede & Co. as nominee for DTC, on the security
register maintained by the Security Registrar under
the Indenture. The beneficial owner of a Note
issued in book-entry form (i.e., an owner of a
beneficial interest in a Book-Entry Note) (or one
or more indirect participants in DTC designated by
such owner) will designate one or more participants
in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as
agent for such beneficial owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form in accordance with
instructions provided by such Participants, a
credit balance with respect to such Note issued in
book-entry form in the account of such
Participants. The ownership interest of such
beneficial owner in such Note issued in book-entry
form will be recorded through the records of such
Participants or through the separate record of such
Participants and one or more indirect participants
in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Book-Entry Notes Outstanding on such date that
represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may
be (other than
C-7
Original Issue Dates), and for which interest has
been paid to the same date (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date for the related Notes issued
in book-entry form, on which such Book-Entry Notes
shall be exchanged for a single replacement
Book-Entry Note; and (c) a new CUSIP number,
obtained from the Company, to be assigned to such
replacement Book-Entry Note. Upon receipt of such a
notice, DTC will send to its participants
(including the Trustee) a written notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau written
notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Book-Entry Notes for a single Book-Entry Note
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Book-Entry Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Book-Entry
Notes to be exchanged exceed $[___________] in
aggregate principal amount, one or more replacement
Book-Entry Note(s) will be authenticated and
issued, each to represent $[___________] of
principal amount of the exchanged Book-Entry Notes
and an additional Book-Entry Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: Book-Entry Notes will be issued in denominations of
$100,000 and any larger denomination which is an
integral multiple of $1,000. Book-Entry Notes will
be denominated in principal amounts not in excess
of $[200,000,000]. If one or more Notes issued in
book-entry form having an aggregate principal
amount in excess of $[200,000,000] would but for
the preceding sentence, be represented by, a single
Book-Entry Note, then one Book-Entry Note will be
issued to represent $[200,000,000] principal amount
of such Note or Notes issued in book-entry form and
an additional Book-Entry Note or Notes will be
issued to
C-8
represent any remaining principal amount of such
Note or Notes issued in book-entry form. In such a
case, each of the Book-Entry Notes representing
such Note or Notes issued in book-entry form shall
be assigned the same CUSIP number.
Interest-General: Each payment of interest on each Book-Entry Note
that is a Fixed Rate Note will include interest
accrued through the day preceding, as the case may
be, the Interest Payment Date or Maturity Date.
Unless otherwise indicated in the applicable
Pricing Supplement, interest payments on each
Book-Entry Note that is a Floating Rate Note
(except in the case of Floating Rate Notes which
reset daily or weekly) shall be the amount of
interest accrued from, and including, the next
preceding Interest Payment Date in respect of which
interest has been paid (or from, and including, the
date of issue if no interest has been paid with
respect to such Floating Rate Note) to, but
excluding, the Interest Payment Date. In the case
of Floating Rate Notes on which the interest is
reset daily or weekly, however, the interest
payments shall include interest accrued from, but
excluding, the next preceding Regular Record Date
in respect of which interest has been paid to, and
including, the Regular Record Date next preceding
the applicable Interest Payment Date, except that
the interest payment at Maturity will include
interest accrued to, but excluding, such date.
Interest payable at Maturity of a Book-Entry Note
will be payable to the Person to whom the principal
of such Note is payable. DTC will arrange for each
pending deposit message described under Settlement
Procedure C below to be transmitted to Standard &
Poor's Corporation, which will use the information
in the message to include certain terms of the
related Book-Entry Note in the appropriate daily
bond report published by Standard & Poor's
Corporation.
Notice of Interest Payments On the first Business Day of March, June, September
and Regular Record Dates: and December of each year, upon request by the
Company, the Trustee will deliver to the Company
and DTC a written list of Regular Record Dates and
Interest Payment Dates that will occur during the
six-month period beginning on such first Business
Day with respect to Floating Rate Notes issued in
book-entry form. Promptly after each Interest
Determination Date
C-9
or Calculation Date, if applicable (including the
first initial Interest Determination Date) for
Floating Rate Notes issued in book-entry form, the
Trustee will notify Standard & Poor's Corporation
of the interest rates determined on such Interest
Determination Date or Calculation Date, if
applicable.
Payments of Principal Promptly after each Regular Record Date, the
and Interest-Payments of Trustee will deliver to the Company and DTC a
Interest Only: written notice specifying by CUSIP number the
amount of interest to be paid on each Book-Entry
Note on the following Interest Payment Date (other
than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. The
Company will confirm with the Trustee and DTC the
amount payable on each Book-Entry Note on such
Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, such total amount of interest
due (other than at Maturity), at the times and in
the manner set forth below under "Manner of
Payment."
Payments at Maturity: On or about the first Business Day of each month,
the Trustee will deliver to the Company and DTC a
written list of principal, interest and premium, if
any, to be paid on each Book-Entry Note maturing
either at Stated Maturity or on a Redemption Date
or on an optional repayment date (if any) in the
following month. The Trustee, the Company and DTC
will confirm the amounts of such principal and
interest payments with respect to a Book-Entry Note
on or about the fifth Business Day preceding the
maturity of such Book-Entry Note. At such Maturity,
the Company will pay to the Trustee, and the
Trustee in turn will pay to DTC, the principal
amount of such Note, together with interest and
premium, if any, due at such Maturity, at the times
and in the manner set forth below under "Manner of
Payment." If any Maturity of a Book-Entry Note is
not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for
the period from and after such Maturity. Promptly
after payment to DTC of the principal, interest and
premium, if any, due at the Maturity of any
Book-Entry Note, the Trustee will cancel and
destroy such Book-Entry Note
C-10
and deliver to the Company a certificate of
destruction with respect to each canceled Note.
Manner of Payment: The total amount of any principal, premium, if any,
and interest due on Book-Entry Notes on any
Interest Payment Date or at Maturity shall be paid
by the Company to the Trustee in funds available
for use by the Trustee as of 9:30 A.M., New York
City time, on such date. The Company will make such
payment on such Book-Entry Notes by instructing the
Trustee to withdraw funds from an account
maintained by the Company at the Trustee. The
Company will confirm such instructions in writing
to the Trustee. Prior to 10:00 A.M. on each
Maturity Date, the Trustee upon the withdrawal of
such funds will pay by separate wire transfer
(using Fedwire message entry instructions on a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of interest, principal and
premium, if any, due on a Book-Entry Note on such
date. On each Interest Payment Date, interest
payments shall be made to DTC in same day funds in
accordance with existing arrangements between the
Trustee and DTC. Thereafter on such dates DTC will
pay, in accordance with its SDFS operating
procedures then in effect such amounts in funds
available for immediate use to the respective
Participants in whose names such Notes are recorded
in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC
of the principal of, or interest on, the Book-Entry
Notes to such Participants.
Withholding Taxes: The amount of any taxes required under applicable
law to be withheld from any interest payment on a
Note will be determined and withheld by the
Participant, indirect participant in DTC or other
Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note. Acceptance and Rejection of Offers: The
Company shall have the sole right to accept offers
to purchase Notes from the Company and may reject
any such offer in whole or in part. Each Agent
shall
C-11
promptly communicate to the Company, orally or in
writing, each reasonable offer to purchase
Book-Entry Notes from the Company received by it,
other than those rejected by such Agent. The Agents
shall have the right, in their discretion
reasonably exercised, without notice to the
Company, to reject any offer to purchase Notes in
whole or in part.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by the Company through an
agent, as Agent, will be as follows:
A. The Agent will advise the Company by telephone
of the following settlement information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
C-12
(o) Original Issue Discount features,
if any
(p) Sinking Fund Dates and Amounts,
if any
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue Date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on
the same date) or by electronic transmission of
the information set forth in the above
settlement information. The Company will then
assign a CUSIP number to the Book-Entry Note
representing such Note and advise the Company
of such number. Each such communication by the
Company shall constitute a representation and
warranty by the Company to the Trustee and the
Agents that (i) such Note is then, and at the
tine of issuance and sale thereof will be, duly
authorized for issuance and sale by the
Company, (ii) such Note and the Book-Entry Note
representing such Note, will conform with the
terms of the Indenture and (iii) upon
authentication and delivery of such Book-Entry
Note, the aggregate initial offering price of
all Notes issued in this connection under the
Indenture will not exceed $182,000,000 (except
for Book-Entry Notes represented by global
Notes authenticated and delivered in exchange
for or in lieu of global Note pursuant to
Sections 3.4, 3.5 or 3.6 of the Indenture and
except for Certificated Notes authenticated and
delivered upon registration of transfer of, in
exchange for, or in lieu of, Certificated Notes
pursuant to any such Sections).
C-13
C. The Trustee will communicate to DTC and the
Agent through DTC's Participant Terminal
System, a pending deposit message specifying
the following settlement information:
1. The information set forth in Procedure A.
2. Identification as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for DTC
purposes (which shall be the Regular Record
Date or, in the case of Floating Rate Notes
which reset daily or weekly, the date which
is five calendar days preceding the
Interest Payment Date) and, if then
calculable, the amount of interest payable
on such Interest Payment Date (which amount
shall have been confirmed by the Trustee).
4. CUSIP number of the Book-Entry Note
representing such Note.
5. Whether such Book-Entry Note represents any
other Notes issued or to be issued in
book-entry form to the extent known at such
time.
D. The Company will complete and deliver to the
Trustee a Book-Entry Note representing such
Note in a form that has been approved by the
Company, the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry
Note representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
C-14
Trustee's participant account and credit such
Note to the participant account of the
Presenting Agent maintained by DTC and (ii) to
debit the settlement account of the Presenting
Agent and credit the settlement account of the
Trustee maintained by DTC, in an amount equal
to the price of any Note less such Agent's
commission. Any entry of such a deliver order
shall be deemed to constitute a representation
and warranty by the Trustee to DTC that the
Book-Entry Note representing such Note has been
executed and authenticated.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and
credit such Note to the participant account of
the Participants maintained by DTC and (ii) to
debit the settlement accounts of such
Participants and credit the settlement account
of the Presenting Agent maintained by DTC, in
an amount equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance with SDFS
dollar orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee, upon receipt of such funds, will
credit to an account of the Company maintained
at the Trustee funds available for immediate
use in the amount transferred to the Trustee in
accordance with Settlement Procedure G.
K. The Agent will confirm the purchase of such
Note to the purchaser either by transmitting to
the Participant with respect to such Note a
confirmation order through DTC's Participant
Terminal System or by mailing a written
confirmation to such purchaser.
C-15
Settlement Procedures For orders of Notes accepted by the Company,
Timetable: Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A-B 11:00 A.M. on the trade date
C 2:00 P.M. on the trade date
D 3:00 P.M. on the Business Day
before Settlement Date
E 4:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
Settlement
Procedure Time
G-H No later than 2:00 P.M. on
Settlement Date
I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
[If a sale is to be settled more than one Business
Day after the trade date, Settlement Procedures A,
B and C may, if necessary, be completed at any time
prior to the specified times on the first Business
Day after such trade date.] In connection with a
sale which is to be settled more than one Business
Day after the trade date, if the initial interest
rate for a Floating Rate Note is not known at the
time that Settlement Procedure A is completed,
Settlement Procedures B and C shall be completed as
soon as such rates have been determined, but no
later than 11:00 A.M. and 2:00 P.M., New York City
time, respectively, on the second Business Day
before the Settlement Date. Settlement Procedure I
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating
procedures in effect on the Settlement Date.
C-16
If settlement of a Book-Entry Note is rescheduled
or canceled, the Trustee, upon receipt of notice of
such cancellation will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.,
New York City time, on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter a SDFS deliver order
with respect to a Book-Entry Note pursuant to
Procedure G, the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC
to debit such Note to the participant account of
the Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains a principal amount of the
Book-Entry Note representing such Note that is at
least equal to the principal amount to be debited.
If withdrawal messages are processed with respect
to all the Notes represented by a Book-Entry Note,
the Trustee will cancel and destroy each Book-Entry
Note and deliver to the Company a certificate of
destruction with respect to each canceled Note. The
CUSIP number assigned to such Book-Entry Note shall
in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned. If
withdrawal messages are processed with respect to a
portion of the Notes represented by a Book-Entry
Note, the Trustee will exchange such Book-Entry
Note for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which withdrawal
messages are processed and shall be canceled
immediately after issuance, and the other of which
shall represent the other Notes previously
represented by the surrendered Book-Entry Note and
shall bear the CUSIP number of the surrendered
Book-Entry Note.
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If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect to
such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the related Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other
than default by the applicable Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such Agent on
an equitable basis for its loss of the use of funds
during the period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect to
a Note that was to have been represented by a
Book-Entry Note also representing other Notes, the
Trustee will provide, in accordance with Settlement
Procedures D and E, for the authentication and
issuance of a Book-Entry Note representing such
remaining Notes and will make appropriate entries
in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in denominations
of $100,000 and integral multiples thereof.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer
or exchange at the corporate trust office of the
Trustee.
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Interest: Each Certificated Note will bear interest in
accordance with its terms.
Payments of Principal and Upon presentment and delivery of a Certificated
Interest: Note, the Trustee will pay the principal amount of
such Note at Maturity and the final installment of
interest in immediately available funds. All
interest payments on a Certificated Note, other
than interest due at Maturity, will be made by
check drawn on the Trustee and mailed by the
Trustee to the person entitled thereto as provided
in such Note. Any payment of principal or interest
required to be made on an Interest Payment Date or
at Maturity of a Certificated Note which is not a
Business Day need not be made on such day, but may
be made on the next succeeding Business Day (except
that in the case of a LIBOR Note, if such day falls
in the next calendar month, such Interest Payment
Date will be the preceding day that is a Business
Day with respect to such LIBOR Note) with the same
force and effect as if made on the Interest Payment
Date or at Maturity, as the case may be, and no
interest shall accrue for the period from and after
such Interest Payment Date or Maturity.
The Trustee will provide monthly to the Company a
list of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law, but shall be relieved from any such
responsibility if it acts in good faith and in
reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee at
Maturity for payment will be canceled by the
Trustee. All such canceled Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect
to such destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through any Agent, as
agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of the following Settlement
information with regard to each Certificated
Note:
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1. Exact name in which the Note is to be
registered (the "Registered Owners").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if any
(k) Minimum Interest Rates, if any
(l) Redemption Dates, if any, and
redemption at whose option
(m) Original Issue Discount features,
if any
(n) Sinking Fund Dates and Amounts,
if any
7. Price to public of the Note.
8. Settlement Date (Original Issue Date).
9. Maturity Date.
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10. Net proceeds to the Company.
11. Agent's commission.
B. The Company shall provide to the Trustee, by
telecopy or other mutually acceptable method,
the above Settlement information received from
the Agent and shall cause the Trustee to
execute, authenticate and deliver the Notes.
The Company also shall provide to the Trustee
and the Agent a copy of the applicable Pricing
Supplement.
C. The Trustee will complete the preprinted
four-ply Note packet containing the following
documents in forms approved by the Company, the
Presenting Agent and the Trustee:
1. Note with Agent's customer confirmation.
2. Stub 1 - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, the Trustee will
deliver the Notes and Stub 2 thereof to the
Presenting Agent at the following applicable
address: in the case of Salomon Brothers Inc,
Attention: __________; in the case of Chase
Securities Inc., Attention: __________; in the
case of UBS Securities LLC, Attention: _______;
in the case of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Attention: __________. The Trustee will keep
Stub 1. The Presenting Agent will acknowledge
receipt of the Note through a broker's receipt
and will keep Stub 2. Delivery of the Note will
be made only against such acknowledgment of
receipt. Upon determination that the Note has
been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire
the net proceeds of the Note after deduction of
its applicable commission to the Company
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pursuant to standard wire instructions given by
the Company.
E. The Presenting Agent will deliver the Note
(with confirmations), as well as a copy of the
Prospectus and any applicable Pricing
Supplement received from the Company, to the
purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement Procedures For offers accepted by the Company, Settlement
Timetable: Procedures "A" through "F" set forth above shall be
completed on or before the respective times set
forth below:
Settlement
Procedure Time
A-B 3:00 P.M. on Business Day prior
to settlement
C-D 2:15 P.M. on day of settlement
E 3:00 P.M. on day of settlement
F 5:00 P.M. on day of settlement
Failure to Settle: In the event that a purchaser of a Certificated
Note from the Company shall either fail to accept
delivery of or make payment for a Certificated Note
on the date fixed for settlement, the Presenting
Agent will forthwith notify the Trustee and the
Company by telephone, confirmed in writing, and
return the Certificated Note to the Trustee.
The Trustee, upon receipt of the Certificated Note
from the Agent will immediately advise the Company
and the Company will promptly arrange to credit the
account of the Presenting Agent in an amount of
immediately available funds equal to the amount
previously paid by such Agent in settlement for the
Certificated Note. Such credits will be made on the
Settlement Date, if possible, and in any event not
later than the Business Day following the
Settlement Date; provided that the Company has
received notice on the same day. If such failure
shall have occurred for any reason other than
failure by such Agent to perform its obligations
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hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable
basis for its loss of the use of funds during the
period when the funds were credited to the account
of the Company. Immediately upon receipt of the
Certificated Note in respect of which the failure
occurred, the Trustee will cancel and destroy the
Certificated Note, make appropriate entries in its
records to reflect the fact that the Certificated
Note was never issued, and accordingly notify in
writing the Company.
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