Exhibit 1.1
GATX CAPITAL CORPORATION
$500,000,000
Medium-Term Notes, Series F
DISTRIBUTION AGREEMENT
___________, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers Inc
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Chase Securities Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Warburg Dillon Read
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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 $500,000,000 aggregate principal amount of its Medium-Term
Notes, Series F Due Nine Months to 30 Years from Date of Issue (the "Notes").
The Notes are to be issued under an indenture dated as of July 31, 1989, as
supplemented and amended by supplemental indentures dated as of December 18,
1991, January 2, 1996 and October 14, 1997 (collectively, the "Indenture"),
between the Company and Chase Manhattan Bank and Trust Company, National
Association (the "Trustee") and will bear interest, if any, at rates and will
have the terms to be provided in a supplement to the Basic Prospectus referred
to below. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by the Company with the Securities
and Exchange Commission (the "Commission") subsequent to the date of the Basic
Prospectus pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are deemed to be incorporated by reference in the
Prospectus.
Subject to the reservation by the Company of the right to sell Notes
directly to investors on its own behalf, the Company hereby appoints you as its
agents (the "Agents") for the purpose of soliciting and receiving offers to
purchase the Notes from the Company by others and, so long as this Agreement
shall remain in effect with respect to any Agent, on the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, the Company agrees that if and whenever the Company
determines to sell Notes directly to any Agent as principal for resale to others
it will enter into a terms agreement relating to each such sale as defined in
and in accordance with the provisions of Section 2(b) hereof (a "Terms
Agreement"). The Company may from time to time offer Notes for sale otherwise
than through the Agents; provided, however, that (i) so long as this Agreement
shall remain in effect, the Company
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shall not solicit or accept offers to purchase Notes through any agent other
than the Agents unless such other agent shall have entered into an agreement
with the Company containing terms substantially the same as those set forth in
this Agreement, and (ii) promptly following the acceptance by the Company of any
offer to purchase Notes through any other such agent, the Company shall provide
the Agents with notice in writing or by telecopy of the terms of such sale. In
acting under this agreement and in connection with the sale of any Notes by the
Company (other than Notes sold to an Agent pursuant to a Terms Agreement), each
Agent is acting solely as agent of the Company and does not assume any
obligation towards or relationship of agency or trust with any purchaser of the
Notes or assume any obligation towards, or any liability as the result of any
act or failure to act of, the other Agents.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Agents as of the Commencement Date (as defined
below), as of each date on which an Agent solicits offers to purchase Notes, as
of each date on which the Company accepts an offer to purchase Notes including
any purchase by an Agent as principal, pursuant to a Terms Agreement or
otherwise, as of each date the Company issues and sells Notes, and as of each
date the Registration Statement (as defined below) or the Basic Prospectus (as
defined below) is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus (as defined
below), each as amended and supplemented to each such date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (Registration No. 333-__________) and such
registration statement has become effective for the registration under the
Securities Act of the Notes. Such registration statement including the exhibits
thereto, is hereinafter called the "Registration Statement." The Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the Company has duly authorized the issuance of the Notes.
The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the Securities Act and complies in all other material respects with said
Rule. The Company proposes to file with the Commission from time to time,
pursuant to Rule 424 under the Securities Act, supplements to the prospectus
relating to the Registration Statement that will, among other things, describe
certain terms of the Notes. The prospectus in the form in which it is first
filed pursuant to Rule 424(b) under the Securities Act is called the Basic
Prospectus. The term "Prospectus" means the Basic Prospectus together with any
amendments thereto and any prospectus supplements (a "Prospectus Supplement") as
filed with, or included for filing with, the Commission pursuant to Rule 424
under the Securities Act. Any reference herein to the Registration Statement,
Basic Prospectus and Prospectus shall be defined to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
filed under the Securities Act.
(b) The Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(c) (i) Each document if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable,
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will comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Registration
Statement and the Prospectus do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (A) the representations and warranties set
forth in this Section 1(c) do not apply (x) to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning the
Agents furnished to the Company in writing by the Agents expressly for use
therein or (y) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee and (B) the representations and warranties set forth in
clauses (iii) and (iv) above, when made as of the Commencement Date or as of any
date on which an Agent solicits offers to purchase Notes or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover information
concerning an offering of particular Notes to the extent such information will
be set forth in a Prospectus Supplement.
(d) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(e) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 405 of Regulation C promulgated pursuant to the
Securities Act (a "Significant Subsidiary") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(f) Each of this Agreement and any applicable Terms Agreement
has been duly authorized by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity hereunder or thereunder may be
limited under applicable law. Each of this Agreement and any applicable Written
Terms Agreement (as defined in Section 2(b)) has been duly executed and
delivered.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with its respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditor's
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The forms of Notes have been duly authorized and, when the
Notes have been executed and authenticated in accordance with the provisions of
the Indenture and delivered to and duly paid for by the purchasers thereof, they
will conform to the descriptions thereof in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and legally binding obligations
of the Company, enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting
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creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Notes and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
considered as one enterprise, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and, to the best of the Company's knowledge, no consent, approval or
authorization of any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the Indenture, the Notes
or any applicable Terms Agreement, except such as may be required by the
Securities Act, the Exchange Act, the Trust Indenture Act or the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Notes.
(j) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, considered as one enterprise, from that set forth
in the Prospectus.
(k) There are no legal or governmental proceedings pending or
to the best of the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company's knowledge, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant
Subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, as then amended or supplemented, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each
Agent will use its best efforts to solicit offers to purchase Notes upon the
terms and conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of telephonic notice
confirmed in writing from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Section 5; provided that if the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in interest rates, redemption provisions or maturities
offered on the Notes or for
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a change deemed immaterial in the reasonable opinion of the Agents), the Agents
shall not be required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions or letters as reasonably
requested by any Agent.
The Company agrees to pay each Agent, as consideration for the sale
of each Note resulting from a solicitation made by such Agent, a commission in
the form of a discount from the purchase price of each Note equal to between
.125% and .750% of the principal amount of such Note as more fully set forth in
Exhibit A hereto. The Agents are authorized to solicit offers to purchase Notes
only in principal amounts of $100,000 or any amount in excess thereof that is a
whole multiple of $1,000. Each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes that should, in the reasonable judgment
of such Agent, be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any such offer in whole
or in part. Each Agent shall have the right to reject in whole or in part, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes, and any such rejection shall not be deemed a breach of its agreements
contained herein.
(b) Purchases as Principal. If requested by an Agent in
connection with a sale of Notes directly to such Agent as principal for its own
account, the Company will enter into a separate Terms Agreement that will
provide for the sale of such Notes to and the purchase by such Agent in
accordance with the terms of this Agreement and the Terms Agreement. Each Terms
Agreement shall take the form of either (i) a written agreement substantially in
the form of Exhibit B hereto or in the form of an exchange of any form of
written telecommunication between such Agent and the Company (any such written
agreement hereinafter a "Written Terms Agreement") or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company. Such Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
agreement by an Agent to purchase Notes as principal (whether or not set forth
in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date thereof, the price
to be paid to the Company for such Notes, the interest rate or interest rate
formula, if any, applicable to such Notes and any other terms of such Notes.
Each agreement shall also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public accountants of the
Company. Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Procedures (as defined below). Each date of delivery of and payment for Notes to
be purchased by an Agent as principal, whether pursuant to a Terms Agreement or
otherwise, is referred to herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Medium-Term Notes, Series F Administrative Procedures
(attached hereto as Exhibit C) (the "Procedures"), as amended from time to time.
The Procedures may be amended only by written agreement of the Company and the
Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement shall be delivered at the office of Pillsbury
Madison & Sutro LLP, not later than 3:00 P.M. San Francisco time on the date
hereof, or at such other time as the Agents and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the date
on which the Agents begin soliciting offers to purchase Notes and (ii) the first
date on which
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the Company accepts any offer by an Agent to purchase Notes as principal. The
date of delivery of such documents is referred to herein as the "Commencement
Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to each Agent a copy
thereof for its review and will not file any such proposed amendment or
supplement to which any Agent reasonably objects; provided that (i) the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, which filings the Company will cause to be timely
filed with the Commission and copies of which filings the Company will cause to
be delivered to each Agent promptly after being mailed for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise each Agent (a) of the
filing of any amendment or supplement to the Basic Prospectus (except that the
filing of an amendment or supplement to the Basic Prospectus that merely sets
forth the terms or a description of particular Notes shall only be notified to
the Agent or Agents offering such Notes), (b) of the filing and effectiveness of
any amendment to the Registration Statement, (c) of any request by the
Commission for any amendment of the Registration Statement or any amendment of
or supplement to the Basic Prospectus or for any additional information, (d) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threatening of any proceeding
for that purpose and (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, the Agents shall not be
obligated to solicit offers to purchase Notes so long as they are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which (i) the Registration Statement or the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein in the light of the circumstances when the Prospectus, as then amended
or supplemented, is delivered to a purchaser, not misleading, or (ii) if, in the
opinion of the Agents or in the opinion of the Company, it is necessary at any
time to amend or supplement the Registration Statement or the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify each Agent by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by the
Company, each Agent shall forthwith suspend such solicitation and cease using
the Prospectus as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with
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the Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Agent in such quantities as such Agent may reasonably
request. If such amendment or supplement, and any documents, certificates and
opinions furnished to the Agents pursuant to paragraph (f) below and Sections
5(a), 5(b) and 5(c) in connection with the preparation or filing of such
amendment or supplement, are satisfactory in all respects to each Agent, upon
the filing of such amendment or supplement with the Commission or effectiveness
of an amendment to the Registration Statement, such Agent will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Notes an Agent may
own as principal has been completed, if any event described above in this
paragraph (b) occurs, the Company will, at its own expense, forthwith prepare
and cause to be filed promptly with the Commission an amendment or supplement to
the Registration Statement or Prospectus as then amended or supplemented,
satisfactory in all respects to such Agent, and will supply such amended or
supplemented Prospectus to such Agent in such quantities as such Agent may
reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to each Agent pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
such Agent, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration Statement, such Agent may
resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earnings statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and
during the period mentioned in Section 3(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as each Agent may reasonably request.
(e) The Company will qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as each Agent shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as each Agent may designate, provided that
the Company shall not be obligated to so qualify the Notes if such qualification
requires it to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified.
(f) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as each Agent may from time to time reasonably request and shall
notify each Agent
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promptly in writing of any downgrading or of its receipt of any notice of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company; (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the reasonable fees and
disbursements of counsel for the Agents incurred in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder.
(h) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without the prior consent of each Agent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes that are to be sold pursuant to
such agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase the Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof prior to or concurrently with any such solicitation or purchase, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified below:
(a) Prior to such solicitation or purchase, as the case may
be,
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented
9
at the time of such solicitation or at the time such offer to purchase was
made that in the reasonable judgment of the relevant Agent or such
purchaser, as the case may be, is material and adverse and that makes it,
in the reasonable judgment of such Agent or such purchaser, impracticable
to market the Notes on the terms and in the manner contemplated in the
Prospectus as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, the
New York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (B) suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (C) declaration of a general moratorium on commercial banking
activities in New York by either federal or New York state authorities; or
(D) any outbreak or escalation of any hostilities or any change in
financial markets or any calamity or crisis that, in the reasonable
judgment of the relevant Agent or such purchaser, as the case may be, is
material and adverse and, in the case of any of the events described in
clauses (ii)(A) through (D), such event, singly or together with any other
such event, makes it, in the reasonable judgment of such Agent or such
purchaser, as the case may be, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer to
purchase was made;
(iii) There shall not have occurred any downgrading, nor
shall any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not indicate
the direction of a possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent or such purchaser, as the case may be, before the offer to
purchase such Notes was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to the relevant Agent
prior to such solicitation or, in the case of a purchase of Notes, to the
relevant Agent or such purchaser, as the case may be, before the offer to
purchase such Notes was made.
The Company acknowledges that no Agent shall have any duty or
obligation to exercise the judgment described in paragraphs (i), (ii) and (iii)
above on behalf of any purchaser of Notes other than such Agent.
(b) On the Commencement Date and, if called for by any
agreement by an Agent to purchase Notes as principal, on the corresponding
Settlement Date, the relevant Agents shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇ ▇.
▇▇▇▇, 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
10
of Delaware and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership and leasing of its properties requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
or leasing of its property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(C) Each of the Company and its subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent that
the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(D) The Indenture has been duly authorized,
executed and delivered by the Company, is a valid and binding
agreement of the Company, enforceable in accordance with its terms,
and has been duly qualified under the Trust Indenture Act.
(E) The form of fixed rate note and the form of
floating rate note have been duly authorized and established in
conformity with the provisions of the Indenture and when the Notes
have been executed and authenticated by the Trustee or its duly
appointed agents in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof, they
will be valid and legally binding obligations of the Company,
enforceable in accordance with their terms and will be entitled to
the benefits of the Indenture.
(F) Each of this Agreement and any applicable
Terms Agreement has been duly authorized by the Company and each of
this Agreement and any Written Terms Agreement has been duly
executed and delivered by the Company.
(G) The execution and delivery by the Company of,
and the performance by the Company of its obligations under, this
Agreement, the Indenture, the Notes and any applicable Terms
Agreement will not contravene any provision of applicable law or the
certificate of incorporation or bylaws of the Company or any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries,
considered as one enterprise,
11
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement,
the Indenture, the Notes or any applicable Terms Agreement, except
such as are specified and have been obtained and such as may be
required by the Securities Act, the Exchange Act, the Trust
Indenture Act or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(H) The statements (1) in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"; (2) in
"Item 3--Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in such Prospectus and
(3) in Item 15 of the Registration Statement, as amended or
supplemented, and in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
(I) To the best of such counsel's knowledge, after
due inquiry, there are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, and is not so described, or of any statute,
regulation, contract or other document that is required to be
described in the Registration Statement or the Prospectus, as
amended or supplemented, or to be filed as an exhibit to the
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
(J) Such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act (except as to
financial statements and schedules, as to which such counsel need
not express any opinion and except for that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification of the Trustee on Form T-1) and incorporated by
reference in the Registration Statement and the Prospectus, as
amended or supplemented, complied when so filed as to form in all
material respects with such act and the rules and regulations
thereunder, (2) believes that (except as to financial statements and
schedules as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) each part of the Registration
Statement as amended if applicable when such part became effective
or was incorporated by reference into the Registration Statement,
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus, as amended or
supplemented, if applicable (except as to financial statements and
schedules included therein as to which such counsel need not express
any opinion and except for that part of the Registration Statement
that constitutes the Form T-1 heretofore
12
referred to), comply as to form in all material respects with the
Securities Act and the applicable rules and regulations thereunder
and (4) believes that (except as to financial statements and
schedules as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) the Registration Statement and
the Prospectus, as amended or supplemented, if applicable, as of the
Commencement Date or the date of any agreement by an Agent to
purchase the Notes as principal, as the case may be, and, as of the
date such opinion is delivered, do not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may qualify any opinion as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law). Such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the
State of New York, the General Corporation Law of the State of Delaware
and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to each Agent), who shall be counsel
satisfactory to counsel to the Agents. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to the
extent he deems proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials. With respect to
paragraph (J) in Section 4(b)(i) above, such counsel need not express any
opinion as to the information included under the heading, if any, in the
Registration Statement, Prospectus, or any amendments or supplements
thereto, "Certain United States Federal Tax Consequences" and with respect
to clauses (3) and (4) of (J) in Section 4(b)(i) above, such counsel may
state that his opinion and belief are based upon his participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated
by reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(ii) The opinion dated as of such date, of __________,
special counsel for the Agents, covering the matters in paragraphs (D),
(E) (F) and (H) (with respect to statements in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"), and clauses
(3) and (4) of paragraph (J) in Section 4(b)(i) above. In rendering such
opinion, such counsel may qualify any opinion as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
the rights and remedies of creditors and is subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law). With respect to clause (4) of paragraph
(J) in Section 4(b)(i) above, such counsel may state its opinion in the
negative and with respect to clauses (3) and (4) of paragraph (J), such
counsel may state that its opinion and belief are based upon its
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the
documents incorporated by reference) and upon review and
13
discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification except as
specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents), the Company will deliver or cause to
be delivered forthwith to any Agent requesting it in writing, a certificate
signed by an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to each
Agent, of the same tenor as the certificate referred to in Section 4(c) relating
to the Registration Statement or the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company shall furnish or cause to be furnished forthwith to
each Agent a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form reasonably satisfactory to each Agent and shall be of the same tenor
as the opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to each Agent may furnish to such Agent a letter to the effect
that such Agent may rely on such last opinion to the same extent as though it
were dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such letter).
14
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish to any Agent
requesting it in writing a letter, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to such Agent,
of the same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
(d) In the event that the Company issues any Notes that are
not exempt from the usury provisions of Section 1 of Article XV of the
California Constitution ("California usury law"), the interest rate on such
Notes shall bear interest at a rate or rates not exceeding that permitted under
California usury law.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent, the officers, directors, employees and agents of such Agent, and each
person, if any, who controls such Agent within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages or liabilities caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or in any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made not
misleading except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
alleged omission based upon information furnished to the Company in writing by
or on behalf of such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Agent, but only with reference to information relating to such Agent furnished
in writing by such Agent expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party
15
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be mutually agreed upon by the Agents who are parties to any such proceeding and
designated in writing by each of the Agents included in any such proceeding
after consultation with such other Agents who are parties to such proceeding, in
the case of parties indemnified pursuant to paragraph (b) above and by the
Company in the case of parties indemnified pursuant to paragraph (a) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agent or Agents, as the case may be, on the other from the offering
of the Notes for which the claim of indemnification or contribution, as the case
may be, is made or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Agent or Agents, as the case may
be, on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agent or Agents, as the case may be, on the other in connection
with the offering of the Notes for which the claim of indemnification or
contribution, as the case may be, is made shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Notes
(before deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be, on the other shall be determined by reference to,
among other things, whether the untrue or allegedly untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if
16
the Agents were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes offered and sold to the public for which the
claim of indemnification or contribution, as the case may be, is made through
such Agent exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity. The Agents' obligations pursuant to
Section 6(d) hereof to contribute are several in proportion to the respective
amounts of Notes sold with respect to which a claim for contribution is made,
and not joint.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company, and
not as principal, and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission such Agent would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time either
by the Company or, as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. Any Terms Agreement shall be subject to
termination in the absolute discretion of each Agent on the terms set forth
therein. The termination of this Agreement shall not require termination of any
agreement by an Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last two sentences of Section 3(b) and Sections 3(c) (only
with respect to the Company's security holders), 3(g), 6, 7, 9, 11 and 14 shall
survive; provided that if at the time of termination an offer to purchase Notes
has been accepted by the Company but the time of delivery to the purchaser or
its agent of such Notes has not occurred, the provisions of Sections 2(b), 2(c),
3(a), 3(e), 3(f), 3(h), 4 and 5 shall also survive with respect to such Notes
until such delivery has been made. If any Terms Agreement is terminated, the
provisions of Sections 3(c), 3(g), 6 and 9 and the last two sentences of Section
3(b) (which shall be deemed to have been incorporated by reference in such Terms
Agreement) shall survive with respect to the Notes covered under such Terms
Agreement.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and any of the Agents set forth in or
made pursuant to this Agreement or any agreement by
17
any Agent to purchase Notes as principal will remain in full force and effect,
regardless of any investigation made by or on behalf of any of the Agents or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive delivery of and payment for the Notes.
10. Notices. Unless a notice is expressly required to be given by
telephone hereunder, all communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to Salomon Brothers Inc. at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Medium-Term Note Group (telecopy number:
(▇▇▇) ▇▇▇-▇▇▇▇); to Chase Securities Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Medium-Term Note Desk (telecopy number:
(212) 834- 6081); to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Continuously Offered
Products (telecopy number: (212) 761- 0783); and to Warburg Dillon Read at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,▇▇ ▇▇▇▇▇, Attention: Medium-Term note Group
(telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇; or, if sent to the Company, will be mailed,
delivered or telecopied and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (telecopy number: (415)
955-3493).
11. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under this
Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York applicable to a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
15. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and the Agents.
Very truly yours,
GATX CAPITAL CORPORATION
By
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above-written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By
---------------------------------
Name:
Title:
SALOMON BROTHERS INC
By
---------------------------------
Name:
Title:
CHASE SECURITIES INC.
By
---------------------------------
Name:
Title:
WARBURG DILLON READ
By
---------------------------------
Name:
Title:
EXHIBIT A
MEDIUM-TERM NOTES, SERIES F
COMMISSION SCHEDULE
Term Commission Rate
%
From 9 months to less than 1 year .125
From 1 year to less than 18 months .150
From 18 months to less than 2 years .200
From 2 years to less than 3 years .250
From 3 years to less than 4 years .350
From 4 years to less than 5 years .450
From 5 years to less than 6 years .500
From 6 years to less than 7 years .550
From 7 years to less than 10 years .600
From 10 years to less than 15 years .625
From 15 years to less than 20 years .700
From 20 years to less than 30 years .750
A-1
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES F
TERMS AGREEMENT
__________, 19__
GATX Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement
dated __________, 1999
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes, Series F: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
Purchase price: Interest rate: Base rate:
Settlement date: Amortization Index maturity:
schedule:
Place of delivery: Spread:
Maturity date: Initial interest rates:
Interest payment dates: Initial interest reset date:
Original issue discount provisions: Interest reset dates:
Redemption provisions: Maximum rate:
Other terms: Minimum rate:
Interest reset period:
Calculation agent:
B-1
[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 Notes, Series F
Administrative Procedures
Medium-Term Notes, Series F (the "Notes") in the aggregate principal
amount of $500,000,000 are to be offered on a continuing basis by GATX Capital
Corporation (the "Company"). ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Salomon Brothers
Inc, Chase Securities Inc. and Warburg Dillon Read (the "Agents") have agreed to
solicit purchases of the Notes, as agents for the Company, or to purchase Notes,
as principal, for their own account. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated __________, 1999
(the "Agreement"). The Notes have been registered with the Securities and
Exchange Commission (the "Commission") and will be offered pursuant to a
Prospectus relating to the Notes (the "Prospectus"). The Chase Manhattan Bank
and Trust Company, N.A. (the "Trustee") is the trustee under the Indenture dated
as of July 31, 1989, as supplemented and amended by the Supplemental Indentures
dated as of December 18, 1991, January 2, 1996, and October 14, 1997, covering
the Notes (the "Indenture"). Capitalized terms used but not defined herein shall
have the respective meanings set forth in the Indenture and, if not defined
therein, then such capitalized terms shall have the respective meanings set
forth in the Notes (which in the case of Book Entry Notes (as defined below)
shall be the related global Note).
The Notes will either be issued (a) in book-entry form and
represented by one or more global Notes delivered to the Trustee as custodian
for The Depository Trust Company ("DTC") (or on behalf of such other depositary
as is identified in the applicable Pricing Supplement, provided that such
depositary shall execute a letter of representation and a Medium-Term Note,
Series F certificate agreement with the Trustee with respect to the Notes), and
recorded in the book-entry system maintained by DTC and registered in the name
of DTC's nominee (each, a "Book-Entry Note"), or (b) in the form of a
Certificate issued in definitive form (a "Certificated Note").
Administrative procedures and specific terms of the offering are
explained below. Owners of beneficial interests in Book-Entry Notes will be
entitled to physical delivery of Certificated Notes equal in principal amount to
their respective beneficial interests only upon certain limited circumstances
described in the Prospectus.
General procedures relating to the issuance of all Notes are set
forth in Part I hereof. Additionally, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part III hereof.
C-1
PART 1: GENERAL
Date of Issuance/ Each Note will be dated as of the date of
Authentication: its authentication by the Trustee. Each Note
shall also bear an original issue date (the
"Original Issue Date"). The Original Issue
Date shall remain the same for all Notes
subsequently issued upon transfer, exchange
or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the purchaser and agreed to by the Company
which is not less than nine months nor more
than thirty years from its Original Issue
Date; provided, however, that Floating Rate
Notes will bear interest pursuant to the
interest rate formula stated therein and in
the applicable Pricing Supplement and will
mature on an Interest Payment Date.
Price To Public: Each Note will be sold at 100% of principal
amount (unless otherwise agreed in a Terms
Agreement as defined in the Distribution
Agreement).
Interest Payments: Each payment of interest on Fixed Rate Notes
will include interest accrued through the
day preceding, as the case may be, the
Interest Payment Date or Stated Maturity
(each Stated Maturity is referred to herein
as "Maturity"). Unless otherwise indicated
in the applicable Pricing Supplement,
interest payments on each Floating Rate Note
(except in the case of Floating Rate Notes
which reset daily or weekly) shall be the
amount of interest accrued from, and
including, the next preceding Interest
Payment Date in respect of which interest
has been paid (or from, and including, the
date of original issue if no interest his
been paid with respect to such Floating Rate
Note) to, but excluding, the Interest
Payment Date. In the case of Floating Rate
Notes on which the interest is reset daily
or weekly, however, the interest payments
shall include interest accrued from, but
excluding, the next preceding Regular Record
Date in respect of which interest has been
paid (or from, and including, the date of
original issue if no interest has been paid
with respect to such Floating Rate Note) to,
and including, the Regular Record Date next
preceding the applicable Interest Payment
Date, except that the interest payment at
Maturity will include interest accrued to,
but excluding, such date.
Regular Record Dates: Except as otherwise provided in the
applicable Pricing Supplement, the Regular
Record Date with respect to any Interest
Payment Date for a Fixed Rate Note shall be
the
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March 15 or September 15 preceding such
Interest Payment Date. The Regular Record
Date with respect to any Interest Payment
Date for a Floating Rate Note shall be the
date 15 calendar days (whether or not a
Business Day) (as hereinafter defined)
preceding such Interest Payment Date.
Interest Payment Dates: Except as otherwise provided in the
applicable Pricing Supplement, interest
payments will be made on each payment date
commencing with the first Interest Payment
Date following the Original Issue Date;
provided, however, the first payment of
interest of any Note originally issued
between a Regular Record Date and an
Interest Payment Date will occur on the
Interest Payment Date following the next
succeeding Regular Record Date to the
registered owner on such next succeeding
Regular Record Date.
If an Interest Payment Date with respect to
any Note would otherwise fall on a day that
is not a Business Day with respect to such
Note, such Interest Payment Date will be the
following day that is a Business Day with
respect to such Note, except that, in the
case of a LIBOR Note, if such day falls in
the next calendar month, such Interest
Payment Date will be the preceding day that
is a Business Day with respect to such LIBOR
Note.
Fixed Rate Notes: Except as otherwise provided in the
applicable Pricing Supplement, interest
payments on Fixed Rate Notes will be made
semiannually on April 1 and October 1 of
each year and at Maturity.
Floating Rate Notes: Unless otherwise stated in the applicable
Pricing Supplement, interest will be payable
in the case of the Floating Rate Notes which
reset daily, weekly or monthly, on the third
Wednesday of each month or on the third
Wednesday of March, June, September and
December of each year; in the case of
Floating Rate Notes which reset quarterly,
on the third Wednesday of March, June,
September and December of each year; in the
case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the
two months of each year specified in the
Floating Rate Note; and in the case of
Floating Rate Notes which reset annually, on
the third Wednesday of the month specified
in the Floating Rate Note and; in each case,
at Maturity or, if applicable, upon
redemption or optional repayment. For
additional special provisions relating to
Floating Rate Notes, see the Prospectus.
Calculation of Interest: In the case of Fixed Rate Notes, interest
(including payments for partial periods)
will be calculated and paid on the basis of
a 360-day year of twelve 30-day months. In
the case of
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Floating Rate Notes, interest will be
calculated and paid on the basis of the
actual number of days in the interest period
divided by 360 for Commercial Paper Rate
Notes, Federal Funds Rate Notes, and LIBOR
Notes, and on the basis of the actual number
of days in the interest period divided by
the actual number of days in the year for
Treasury Rate Notes and on any other basis
as set forth in the applicable Pricing
Supplement. Floating Rate Notes will have
daily, weekly, monthly, quarterly, biannual
or annual resets of the rate of interest
which will be specified in the applicable
Pricing Supplement and in the applicable
Note.
Acceptance of Offers: The Company will have the sole right to
accept offers to purchase Notes. Each Agent
will communicate, orally or in writing, each
reasonable offer to purchase Notes received
by it. The Company may reject any offer in
whole or in part and will promptly notify
such Agent of any such rejection. Each Agent
may without notice to the Company reject any
offer received by it in whole or in part in
its discretion reasonably exercised.
Preparation of Pricing If any offer to purchase a Note is accepted
Supplements: by the Company, the Company, with the
approval of the Agent which presented such
offer (the Presenting Agent), will prepare a
Pricing Supplement reflecting the terms of
such Note and file such Pricing Supplement
and the plan of distribution thereof (the
"Supplemented Prospectus"), with the
Commission in accordance with Rule 424 under
the Securities Act. The Presenting Agent
will cause a stickered Supplemented
Prospectus to be delivered to the purchaser
of the Note.
In each instance that a Pricing Supplement
is prepared, the Agents will affix the
Pricing Supplement to Supplemented
Prospectuses prior to their use. Outdated
Pricing Supplements, and the Supplemented
Prospectuses to which they are attached
(other than those retained for files), will
be destroyed.
Settlement: The receipt of immediately available funds
by the Company in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement." All offers accepted by the
Company will be settled within three
Business Days after the date of such
acceptance by the Company at a time as the
purchaser and the Company shall agree (but
no earlier than the next Business Day)
pursuant to the timetable for settlement set
forth in Parts II and III hereof under
"Settlement Procedures" with respect to
Book- Entry Notes and Certificated Notes,
respectively. If Settlement Procedures A and
B with respect to a particular offer are not
completed on
C-4
or before the time set forth under the
applicable "Settlement Procedures
Timetable," such offer shall not be settled
until the Business Day following the
completion of Settlement Procedures A and B
or such later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes by any
Agent as principal, appropriate settlement
details will be set forth in the applicable
Terms Agreements to be entered into between
such Agent and the Company pursuant to the
Distribution Agreement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the administration of Book-Entry Note procedures,
the Trustee will perform the custodial, document control and administrative
functions described below in accordance with its obligations under a Letter of
Representations from the Company and the Trustee to DTC dated [January 19, 1996]
(the "Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Interest Rate, Original
Issue Date, Maturity Date, Redemption Date
and Prices, if any, Sinking Fund Dates and
Accounts, if any, and Original Issue
Discount features, if any (collectively, the
"Fixed Rate Terms"), will be represented
initially by a single Book-Entry Note and
all Floating Rate Notes issued in book-entry
form having the same Original Issue Date,
base rate upon which interest may be
determined (each an "Interest Rate Basis"),
which may be the Commercial Paper Rate, the
Federal Funds Date, the Treasury Rate, LIBOR
or any other rate set forth by the Company,
Initial Interest Rate, Index Maturity,
Spread, if any, Minimum Interest Rate, if
any, Maximum Interest Rate, if any,
Redemption Dates and Prices, if any, Sinking
Fund Dates and Amounts, if any, Original
Issue Discount features, if any, Interest
Reset Dates, Interest Payment Dates and
Maturity (collectively, "Floating Rate
Terms") will be represented initially by a
single Book-Entry Note.
Each Book-Entry Note will be dated and
issued as of the date of its authentication
by the Trustee. Each Book-Entry Note will
bear an Interest Accrual Date, which will be
(a) with respect to an original Book-Entry
Note (or any portion thereof), its Original
Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry
Note or in lieu of a destroyed, lost or
stolen Book-Entry Note, the most recent
Interest Payment Date to which interest has
been paid or
C-5
duly provided for on the predecessor
Book-Entry Note or Notes (or if no such
payment or provision has been made, the
Original Issue Date of the predecessor
Book-Entry Note or Notes), regardless of the
date of authentication of such subsequently
issued Book-Entry Note. No Book-Entry Note
shall represent any Note issued in
certificated form.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the reservation of approximately 900 CUSIP
numbers which have been reserved for future
assignment to Book-Entry Notes representing
Notes issued in book-entry form and the
Company has delivered to the Trustee and DTC
an initial written list of 900 of such CUSIP
numbers. The Company will assign CUSIP
numbers to Book-Entry Notes as described
below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has
assigned to Book-Entry Notes. The Trustee
will notify the Company at any time when
fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes and,
if it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Book-Entry Notes representing
Notes issued in book-entry form. Upon
obtaining such additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee and DTC.
Registration: Each Book-Entry Note will be registered in
the name of Cede & Co., as nominee for DTC,
on the security register maintained by the
Security Registrar under the Indenture. The
beneficial owner of a Note issued in
book-entry form (i.e., an owner of a
beneficial interest in a Book-Entry Note)
(or one or more indirect participants in DTC
designated by such owner) will designate one
or more participants in DTC (with respect to
such Note issued in book-entry form, the
"Participants") to act as agent for such
beneficial owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form in accordance
with instructions provided by such
Participants a credit balance with respect
to such Note issued in book-entry form in
the account of such Participants. The
ownership interest of such beneficial owner
in such Note issued in book-entry form will
be recorded through the records of such
Participants or through the separate record
of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn, by Participants (and in
certain cases one or more indirect
participants in DTC)
C-6
acting on behalf of beneficial transferors
and transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or
more Book-Entry Notes Outstanding on such
date that represent Book-Entry Notes having
the same Fixed Rate Terms or Floating Rate
Terms, as the case may be (other than
Original Issue Dates), and for which
interest has been paid to the same date; (b)
a date, occurring at least 30 days after
such written notice is delivered and at
least 30 days before the next Interest
Payment Date for the related Notes issued in
book-entry form, on which such Book-Entry
Notes shall be exchanged for a single
replacement Book-Entry Note; and (c) a new
CUSIP number, obtained from the Company, to
be assigned to such replacement Book-Entry
Note. Upon receipt of such a notice, DTC
will send to its participants (including the
Trustee) a written notice to the effect that
such exchange will occur on such date. Prior
to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau
written notice setting forth such exchange
date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP
numbers of the Book-Entry Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Book-Entry Notes for a single
Book-Entry Note bearing the new CUSIP number
and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, if the
Book-Entry Notes to be exchanged exceed
$200,000,000 in aggregate principal amount,
one or more replacement Book-Entry Note(s)
will be authenticated and issued, each to
represent $200,000,000 of principal amount
of the exchanged Book-Entry Notes and an
additional Book-Entry Note or Notes will be
authenticated and issued to represent any
remaining principal amount of such
Book-Entry Notes (see "Denominations"
below).
Denominations: Book-Entry Notes will be issued in
denominations of $100,000 and any larger
denomination which is an integral multiple
of $1,000. Book-Entry Notes will be
denominated in principal amounts not in
excess of $200,000,000. If one or more Notes
issued in book-entry form having an
aggregate principal amount in excess of
$200,000,000 would but for the preceding
sentence be represented by a single
Book-Entry Note, then one Book-Entry Note
will be issued to represent $200,000,000
principal amount of such Note or Notes
issued in book-entry form and an additional
Book-Entry Note or Notes will be issued to
represent any
C-7
remaining principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Book-Entry Notes
representing such Note or Notes issued in
book-entry form shall be assigned the same
CUSIP number.
Interest--General: Each payment of interest on each Book-Entry
Note that is a Fixed Rate Note will include
interest accrued through the day preceding,
as the case may be, the Interest Payment
Date or Maturity Date. Unless otherwise
indicated in the applicable Pricing
Supplement, interest payments on each
Book-Entry Note that is a Floating Rate Note
(except in the case of Floating Rate Notes
which reset daily or weekly) shall be the
amount of interest accrued from, and
including, the next preceding Interest
Payment Date in respect of which interest
has been paid (or from, and including, the
date of issue if no interest has been paid
with respect to such Floating Rate Note) to,
but excluding, the Interest Payment Date. In
the case of Floating Rate Notes on which the
interest is reset daily or weekly, however,
the interest payments shall include interest
accrued from, but excluding, the next
preceding Regular Record Date in respect of
which interest has been paid to, and
including, the Regular Record Date next
preceding the applicable Interest Payment
Date, except that the interest payment at
Maturity will include interest accrued to,
but excluding, such date. Interest payable
at Maturity of a Book-Entry Note will be
payable to the Person to whom the principal
of such Note is payable. DTC will arrange
for each pending deposit message described
under Settlement Procedure C below to be
transmitted to Standard & Poor's
Corporation, which will use the information
in the message to include certain terms of
the related Book-Entry Note in the
appropriate daily bond report published by
Standard & Poor's Corporation.
Notice of Interest Payments and On the first Business Day of March, June,
Regular Record Dates: September and December of each year, upon
request by the Company, the Trustee will
deliver to the Company and DTC a written
list of Regular Record Dates and Interest
Payment Dates that will occur during the
six-month period beginning on such first
Business Day with respect to Floating Rate
Notes issued in book-entry form. Promptly
after each Interest Determination Date or
Calculation Date, if applicable (including
the first initial Interest Determination
Date) for Floating Rate Notes issued in
book-entry form, the Trustee will notify
Standard & Poor's Corporation of the
interest rates determined on such Interest
Determination Date or Calculation Date, if
applicable.
C-8
Payments of Principal and Promptly after each Regular Record Date, the
Interest--Payments of Interest Trustee will deliver to the Company and DTC
Only: a written notice specifying by CUSIP number
the amount of interest to be paid on each
Book-Entry Note on the following Interest
Payment Date (other than an Interest Payment
Date coinciding with Maturity) and the total
of such amounts. The Company will confirm
with the Trustee and DTC the amount payable
on each Book-Entry Note on such Interest
Payment Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment Date,
the Company will pay to the Trustee, and the
Trustee in turn will pay to DTC, such total
amount of interest due (other than at
Maturity), at the times and in the manner
set forth below under "Manner of Payment."
Payments at Maturity: On or about the first Business Day of each
month, the Trustee will deliver to the
Company and DTC a written list of principal,
interest and premium, if any, to be paid on
each Book-Entry Note maturing either at
Stated Maturity or on a Redemption Date or
on an optional repayment date (if any) in
the following month. The Trustee, the
Company and DTC will confirm the amounts of
such principal and interest payments with
respect to a Book-Entry Note on or about the
fifth Business Day preceding the Maturity of
such Book-Entry Note. At such Maturity, the
Company will pay to the Trustee, and the
Trustee in turn will pay to DTC, the
principal amount of such Note, together with
interest and premium, if any, due at such
Maturity, at the times and in the manner set
forth below under "Manner of Payment." If
any Maturity of a Book-Entry Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue on
such payment for the period from and after
such Maturity. Promptly after payment to DTC
of the principal, interest and premium, if
any, due at the Maturity of any Book-Entry
Note, the Trustee will cancel and destroy
such Book-Entry Note and deliver to the
Company a certificate of destruction with
respect to each canceled Note.
Manner of Payment: The total amount of any principal, premium,
if any, and interest due on Book-Entry Notes
on any Interest Payment Date or at Maturity
shall be paid by the Company to the Trustee
in funds available for use by the Trustee as
of 9:30 A.M., New York City time, on such
date. The Company will make such payment on
such Book-Entry Notes by instructing the
Trustee to withdraw funds from an account
maintained by the Company at the Trustee.
The Company will confirm such instructions
in writing to the Trustee. Prior to 10:00
A.M. on each Maturity Date, the Trustee upon
the withdrawal of such funds will pay by
separate wire
C-9
transfer (using Fedwire message entry
instructions on a form previously specified
by DTC) to an account at the Federal Reserve
Bank of New York previously specified by
DTC, in funds available for immediate use by
DTC, each payment of interest, principal and
premium, if any, due on a Book-Entry Note on
such date. On each Interest Payment Date,
interest payments shall be made to DTC in
same day funds in accordance with existing
arrangements between the Trustee and DTC.
Thereafter, on such dates DTC will pay in
accordance with its SDFS operating
procedures then in effect such amounts in
funds available for immediate use to the
respective Participants in whose names such
Notes are recorded in the book-entry system
maintained by DTC.
Neither the Company nor the Trustee shall
have any responsibility or liability for the
payment by DTC of the principal of, or
interest on, the Book-Entry Notes to such
Participants.
Withholding Taxes: The amount of any taxes required under
applicable law to be withheld from any
interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial owner
of such Note.
Acceptance and Rejection of The Company shall have the sole right to
Offers: accept offers to purchase Notes from the
Company and may reject any such offer in
whole or in part. Each Agent shall promptly
communicate to the Company, orally or in
writing, each reasonable offer to purchase
Book-Entry Notes from the Company received
by it, other than those rejected by such
Agent. The Agents shall have the right, in
their discretion reasonably exercised,
without notice to the Company, to reject any
offer to purchase Notes in whole or in part.
Settlement Procedures: Settlement Procedures with regard to each
Note in book-entry form sold by the Company
through any agent, as Agent, will be as
follows:
A. The Agent will advise the Company by
telephone of the following settlement
information:
1. Taxpayer identification number
of the purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
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(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option.
4. Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
(o) Original Issue Discount
features, if any
(p) Sinking Fund Dates and Amounts,
if any
5. Price to public of the Note.
6. Trade date.
7. Settlement Date (Original Issue Date).
8. Maturity.
9. Net proceeds to the Company.
10. Agent's commission.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time
on the same date) or by electronic
transmission of the information set forth in
the above settlement information. The
Company will then assign a CUSIP number to
the Book-Entry Note representing such Note
and advise the Trustee of such number. Each
such communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and the Agents
that (i) such Note is then, and at the tine
of issuance and sale thereof will be,
C-11
duly authorized for issuance and sale by the
Company, (ii) such Note, and the Book-Entry
Note representing such Note, will conform
with the terms of the Indenture and (iii)
upon authentication and delivery of such
Book-Entry Note, the aggregate initial
offering price of all Notes issued in this
connection under the Indenture will not
exceed $182,000,000 (except for Book-Entry
Notes represented by global Notes
authenticated and delivered in exchange for
or in lieu of global Note, pursuant to
Sections 3.4, 3.5, 3.6, 9.6 and 11.7 of the
Indenture and except for Certificated Notes
authenticated and delivered upon
registration of transfer of, in exchange
for, or in lieu of, Certificated Notes
pursuant to any of such Sections).
C. The Trustee will communicate to DTC and the
Agent through DTC's Participant Terminal
System a pending deposit message specifying
the following settlement information:
1. The information set forth in Procedure
A.
2. Identification as a Fixed Rate
Book-Entry Note or Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such
date succeeds the related record date
for DTC purposes (which shall be the
Regular Record Date or, in the case of
Floating Rate Notes which reset daily
or weekly, the date which is five
calendar days preceding the Interest
Payment Date) and, if then calculable,
the amount of interest payable on such
Interest Payment Date (which amount
shall have been confirmed by the
Trustee).
4. CUSIP number of the Book-Entry Note
representing such Note.
5. Whether such Book-Entry Note
represents any other Notes issued or
to be issued in book-entry form to the
extent known at such time.
D. The Company will complete and deliver to the
Trustee a Book-Entry Note representing such
Note in a form that has been approved by the
Company, the Agents and the Trustee.
C-12
E. The Trustee will authenticate the Book-Entry
Note representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Presenting Agent maintained by DTC and (ii)
to debit the settlement account of the
Presenting Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of any Note
less such Agent's commission. Any entry of
such a deliver order shall be deemed to
constitute a representation and warranty by
the Trustee to DTC that the Book-Entry Note
representing such Note has been executed and
authenticated.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to the Presenting Agent's
participant account and credit such Note to
the participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent maintained by DTC, in an
amount equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance with SDFS
dollar orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee, upon receipt of such funds,
will credit to an account of the Company
maintained at the Trustee funds available
for immediate use in the amount transferred
to the Trustee in accordance with Settlement
Procedure G.
K. The Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participant with respect to such Note
a confirmation order through DTC's
Participant Terminal System or by mailing a
written confirmation to such purchaser.
C-13
Settlement Procedures Timetable: For orders of Notes accepted by the Company,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
A-B 11:00 A.M. on the trade date
C 2:00 P.M. on the trade date
D 3:00 P.M. on the Business Day
before Settlement Date
E 4:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
Settlement
Procedure Time
G-H No later than 2:00 P.M. on
Settlement Date
I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
[If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B and C may, if
necessary, be completed at any time prior to
the specified times on the first Business
Day after such trade date.] In connection
with a sale which is to be settled more than
one Business Day after the trade date, if
the initial interest rate for a Floating
Rate Note is not known at the time that
Settlement Procedure A is completed,
Settlement Procedures B and C shall be
completed as soon as such rates have been
determined, but no later than 11:00 A.M. and
2:00 P.M., New York City time, respectively,
on the second Business Day before the
Settlement Date. Settlement Procedure I is
subject to extension in accordance with any
extension of Fedwire closing deadlines and
in the other events specified in the SDFS
operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee, upon
receipt of notice of such cancellation will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to
such effect by no later than 2:00 P.M., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
C-14
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry
Note pursuant to Procedure G, the Trustee
may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing
DTC to debit such Note to the participant
account of the Trustee maintained at DTC.
DTC will process the withdrawal message,
provided that such participant account
contains a principal amount of the
Book-Entry Note representing such Note that
is at least equal to the principal amount to
be debited. If withdrawal messages are
processed with respect to all the Notes
represented by a Book-Entry Note, the
Trustee will cancel and destroy each
Book-Entry Note and deliver to the Company a
certificate of destruction with respect to
each canceled Note. The CUSIP number
assigned to such Book-Entry Note shall in
accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are
processed with respect to a portion of the
Notes represented by a Book-Entry Note, the
Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed and shall
be canceled immediately after issuance, and
the other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered
Book-Entry Note.
If the purchase price for any Book-Entry
Note is not timely paid to the Participants
with respect to such Note by the beneficial
purchaser thereof (or a person, including an
indirect participant in DTC, acting on
behalf of such purchaser), such Participants
and, in turn, the related Agent may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing the
orders entered pursuant to Settlement
Procedures G and H, respectively.
Thereafter, the Trustee will deliver the
withdrawal message and take the related
actions described in the preceding
paragraph. If such failure shall have
occurred for any reason other than default
by the applicable Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Agent on an equitable basis
for its loss of the use of funds during the
period when the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating
procedures then in effect.
C-15
In the event of a failure to settle with
respect to a Note that was to have been
represented by a Book-Entry Note also
representing other Notes, the Trustee will
provide, in accordance with Settlement
Procedures D and E, for the authentication
and issuance of a Book-Entry Note
representing such remaining Notes and will
make appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in
denominations of $100,000 and integral
multiples thereof.
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for
transfer or exchange at the corporate trust
office of the Trustee.
Interest: Each Certificated Note will bear interest in
accordance with its terms.
Payments of Principal and Upon presentment and delivery of a
Interest: Certificated Note, the Trustee will pay the
principal amount of such Note at Maturity
and the final installment of interest in
immediately available funds. All interest
payments on a Certificated Note, other than
interest due at Maturity, will be made by
check drawn on the Trustee and mailed by the
Trustee to the person entitled thereto as
provided in such Note. Any payment of
principal or interest required to be made on
an Interest Payment Date or at Maturity of a
Certificated Note which is not a Business
Day need not be made on such day, but may be
made on the next succeeding Business Day
(except that, in the case of a LIBOR Note,
if such day falls in the next calendar
month, such Interest Payment Date will be
the preceding day that is a Business Day
with respect to such LIBOR Note) with the
same force and effect as if made on the
Interest Payment Date or at Maturity, as the
case may be, and no interest shall accrue
for the period from and after such Interest
Payment Date or Maturity.
C-16
The Trustee will provide monthly to the
Company a list of the principal and interest
to be paid on Certificated Notes maturing in
the next succeeding month. The Trustee will
be responsible for withholding taxes on
interest paid as required by applicable law,
but shall be relieved from any such
responsibility if it acts in good faith and
in reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee
at Maturity for payment will be canceled by
the Trustee. All such canceled Notes held by
the Trustee shall be destroyed and the
Trustee shall furnish to the Company a
certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following
Settlement information with regard to
each Certificated Note:
1. Exact name in which the Note is
to be registered (the
"Registered Owner").
2. Exact address or addresses of
the Registered Owner for
delivery, notices and payments
of principal and interest.
3. Taxpayer identification number
of the Registered Owner.
C-17
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any,
and redemption at whose
option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if
any
(k) Minimum Interest Rates, if
any
(l) Redemption Dates, if any,
and redemption at whose
option
(m) Original Issue Discount
features, if any
(n) Sinking Fund Dates and
Amounts, if any
7. Price to public of the Note.
8. Settlement Date (Original Issue
Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's commission.
B. The Company shall provide to the
Trustee, by telecopy or other mutually
acceptable method, the above
Settlement information received from
the Agent and shall cause the Trustee
to execute, authenticate and deliver
the Notes. The Company also shall
provide to the Trustee and the Agent a
copy of the applicable Pricing
Supplement.
C-18
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Manager, Continuously
Offered Products; and in the case of
Salomon Brothers Inc., at ▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Medium-Term Note
Group; in the case of Chase Securities
Inc., at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10017-2070,
Attention: Windows 17 and 18; and in
the case of Warburg Dillon Read, at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, 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 pursuant to
standard wire instructions given by
the Company.
E. The Presenting Agent will deliver the
Note (with confirmations), as well as
a copy of the Prospectus and any
applicable Pricing Supplement received
from the Company, to the purchaser
against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the
Company.
C-19
Settlement Procedures Timetable: For offers accepted by the Company,
Settlement Procedures "A" through "F" set
forth above shall be completed on or before
the respective times set forth below:
Settlement
Procedure Time
A-B 3:00 P.M. on Business Day
prior to settlement
C-D 2:15 P.M. on day of settlement
E 3:00 P.M. on day of settlement
F 5:00 P.M. on day of settlement
Failure to Settle: In the event that a purchaser of a
Certificated Note from the Company shall
either fail to accept delivery of or make
payment for a Certificated Note on the date
fixed for settlement, the Presenting Agent
will forthwith notify the Trustee and the
Company by telephone, confirmed in writing,
and return the Certificated Note to the
Trustee.
The Trustee, upon receipt of the
Certificated Note from the Agent, will
immediately advise the Company and the
Company will promptly arrange to credit the
account of the Presenting Agent in an amount
of immediately available funds equal to the
amount previously paid by such Agent in
settlement for the Certificated Note. Such
credits will be made on the Settlement Date,
if possible, and in any event not later than
the Business Day following the Settlement
Date; provided that the Company has received
notice on the same day. If such failure
shall have occurred for any reason other
than failure by such Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Agent on an equitable basis
for its loss of the use of funds during the
period when the funds were credited to the
account of the Company. Immediately upon
receipt of the Certificated Note in respect
of which the failure occurred, the Trustee
will cancel and destroy the Certificated
Note, make appropriate entries in its
records to reflect the fact that the
Certificated Note was never issued, and
accordingly notify the Company in writing.
C-20