Exhibit 1.1
GATX CAPITAL CORPORATION
$_____________
Medium-Term Notes, Due from
Nine Months to Thirty Years from Date of Issue
DISTRIBUTION AGREEMENT
[Date]
-------------------
-------------------
-------------------
Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $_________ aggregate principal amount of its Medium-Term Notes
Due from Nine Months to Thirty 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 and
__________, 1997 (collectively, the "Indenture"), between the Company and The
Chase Manhattan Bank (the "Trustee") and will bear interest, if any, at rates
and will have the terms to be provided in a supplement to the Basic Prospectus
referred to below. The terms "supplement" and "amendment" or "amend" as used in
this Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Basic Prospectus pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") that are deemed to be
incorporated by reference in the Prospectus.
Subject to the reservation by the Company of the right to sell Notes
directly to investors on its own behalf, the Company hereby appoints you as its
agents (the "Agents") for the purpose of soliciting and receiving offers to
purchase the Notes from the Company by others and, so long as this Agreement
shall remain in effect with respect to any Agent, on the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, the Company agrees that if and whenever the Company
determines to sell Notes directly to any Agent as principal for resale to others
it will enter into a Terms Agreement relating to each such sale as defined in
and in accordance with the provisions of Section 2(b) hereof. The Company may
from time to time offer Notes for sale otherwise than through the Agents;
provided, however, that (i) so long as this
2
Agreement shall remain in effect, the Company shall not solicit or accept offers
to purchase Notes through any agent other than the Agents unless such other
agent shall have entered into an agreement with the Company containing terms
substantially the same as those set forth in this Agreement, and (ii) promptly
following the acceptance by the Company of any offer to purchase Notes through
any other such agent, the Company shall provide the Agents with notice in
writing or by telecopy of the terms of such sale. In acting under this agreement
and in connection with the sale of any Notes by the Company (other than Notes
sold to an Agent pursuant to a Terms Agreement), each Agent is acting solely as
agent of the Company and does not assume any obligation towards or relationship
of agency or trust with any purchaser of the Notes or assume any obligation
towards, or any liability as the result of any act or failure to act of, the
other Agent.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Agents as of the Commencement Date (as
hereinafter defined), as of each date on which an Agent solicits offers to
purchase Notes, as of each date on which the Company accepts an offer to
purchase Notes including any purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise, as of each date the Company issues and sells
Notes, and as of each date the Registration Statement (as hereinafter defined)
or the Basic Prospectus (as hereinafter defined) is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus (as hereinafter defined), each as amended and
supplemented to each such date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Securities Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (Registration No. 33-_______) and such registration statement has
become effective for the registration under the Securities Act of the Notes.
Such registration statement including the exhibits thereto, is hereinafter
called the "Registration Statement." The Indenture has been qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Company has duly
authorized the issuance of the Notes. The Registration Statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies in all other material respects with said Rule. The Company proposes to
file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act, supplements to the prospectus relating to the Registration
Statement that will, among other things, describe certain terms of the Notes.
The prospectus in the form in which it is first filed pursuant to Rule 424(b)
under the Securities Act is called the Basic Prospectus. The term "Prospectus"
means the Basic Prospectus together with any amendments thereto and any
prospectus supplements (a "Prospectus Supplement"), as filed with, or included
for filing with, the Commission pursuant to Rule 424 under the Securities Act.
Any reference herein to the Registration Statement, Basic Prospectus and
Prospectus shall be defined to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 filed under the Securities
Act.
3
(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, 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
4
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 indemnify hereunder or thereunder may be
limited under applicable law. Each of this Agreement and any applicable Written
Terms Agreement (as defined in Section 2(b)) has been duly executed and
delivered.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditor's
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The forms of Notes have been duly authorized and, when the
Notes have been executed and authenticated in accordance with the provisions of
the Indenture and delivered to and duly paid for by the purchasers thereof, they
will conform to the descriptions thereof in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and legally binding obligations
of the Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture, the Notes and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
considered as one enterprise, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and, to the best of the Company's knowledge, no consent, approval or
authorization of any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the Indenture, the Notes
or any applicable Terms Agreement, except such as may be required by the
Securities Act, the Exchange Act, the Trust Indenture Act or the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Notes.
(j) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, considered as one enterprise, from that set forth
in the Prospectus.
(k) There are no legal or governmental proceedings pending or
to the best of the Company's knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company knowledge, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant
Subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, as then amended or supplemented, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each
Agent will use its best efforts to solicit offers to purchase Notes upon the
terms and conditions set forth in the Prospectus as then amended or
supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of telephonic notice
confirmed in writing from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised them that such solicitation may be resumed. During the
period of time that such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Section 5; provided that if the Registration Statement or the Prospectus is
amended or so supplemented (other than by an amendment or supplement providing
solely for a change in interest rates, redemption provisions or maturities
offered on the Notes or for a change deemed immaterial in the reasonable opinion
of the Agents), the Agents shall not be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions or
letters as reasonably requested by any Agent.
The Company agrees to pay each Agent, as consideration for the sale
of each Note resulting from a solicitation made by such Agent, a commission in
the form of a discount from the purchase price of each Note equal to between
___% and ___% of the principal amount of such Note as more fully set forth in
Exhibit A hereto. The Agents are authorized to solicit offers to purchase Notes
only in principal amounts of $100,000 or any amount in excess thereof that is a
whole multiple of $1,000. Each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes that should, in the reasonable judgment
of such Agent, be considered by the
6
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 Term Agreement or
otherwise, is referred to herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Medium Term Notes Administrative Procedures (attached
hereto as Exhibit C) (the "Procedures"), as amended from time to time. The
Procedures may be amended only by written agreement of the Company and the
Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement shall be delivered at the office of Pillsbury
Madison & Sutro LLP, not later than 3:00 P.M. San Francisco time on the date
hereof, or at such other time as the Agents and the Company may agree upon in
writing, but in no event later than the day prior to the earlier of (i) the date
on which the Agents begin soliciting offers to purchase Notes and (ii) the first
date on which the Company accepts any offer by an Agent to purchase Notes as
principal. The date of delivery of such documents is referred to herein as the
"Commencement Date."
7
(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
8
applicable law, the Company will immediately notify each Agent by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, each Agent shall forthwith suspend
such solicitation and cease using the Prospectus as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise the Agents promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented that will correct such statement or omission or effect
such compliance and will supply such amended or supplemented Prospectus to each
Agent in such quantities as such Agent may reasonably request. If such amendment
or supplement, and any documents, certificates and opinions furnished to the
Agents pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation or filing of such amendment or supplement, are
satisfactory in all respects to each Agent, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to the
Registration Statement, such Agent will resume the solicitation of offers to
purchase Notes hereunder. Notwithstanding any other provision of this Section
3(b), until the distribution of any Notes an Agent may own as principal has been
completed if any event described above in this paragraph (b) occurs, the Company
will, at its own expense, forthwith prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented, satisfactory in all respects to such
Agent, and will supply such amended or supplemented Prospectus to such Agent in
such quantities as such Agent may reasonably request. If such amendment or
supplement and any documents, certificates, opinions and letters furnished to
each Agent pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to such Agent, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to the
Registration Statement, such Agent may resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve month periods
beginning, in each case, not later than the first day of the Company fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earnings statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and
during the period mentioned in Section 3(b) above, as many copies of the
Prospectus, any documents
9
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 the Agent shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as either Agent may designate, provided
that the Company shall not be obligated to so qualify the Notes if such
qualification requires it to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified.
(f) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as either Agent may from time to time reasonably request and shall
notify each Agent promptly in writing of any downgrading or of its receipt of
any notice of (A) any intended or potential downgrading or (B) any review or
possible change that does not indicate the direction of a possible change in the
rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(9)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company; (ix) the fees
and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. and (x) the reasonable fees and
disbursements of counsel for the Agents incurred in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder.
10
(h) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without the prior consent of each Agent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes that are to be sold pursuant to
such agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase the Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof prior to or concurrently with any such solicitation or purchase, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified below:
(a) Prior to such solicitation or purchase, as the case
may be,
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made that in the reasonable judgment of the
relevant Agent or such purchaser, as the case may be, is material and
adverse and that makes it, in the reasonable judgment of such Agent or
such purchaser, impracticable to market the Notes on the terms and in the
manner contemplated in the Prospectus as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc. the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade;
(B) suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market (C) declaration of a general moratorium
on commercial banking activities in New York by either federal or New York
state authorities or (D) any outbreak or escalation of any hostilities or
any change in financial markets
11
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 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.
12
(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
13
the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company
and its subsidiaries, considered as one enterprise, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval or authorization
of any governmental body or agency is required for the performance
by the Company of its obligations under this Agreement, the
Indenture, the Notes or any applicable Terms Agreement, except such
as are specified and have been obtained and such as may be required
by the Securities Act, the Exchange Act, the Trust Indenture Act or
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(H) The statements (1) in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"; (2) in
Item 3--Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in such Prospectus and
(3) in Item 15 of the Registration Statement, as amended or
supplemented, and in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
(I) To the best of such counsel's knowledge, after
due inquiry, there are no legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, and is not so described, or of any statute, regulation
contract or other document that is required to be described in the
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to the Registration
Statement or the Prospectus, as amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(J) Such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act (except as to
financial statements and schedules, as to which such counsel need
not express any opinion and except for that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1)) and incorporated by reference in the
Registration Statement and the Prospectus, as amended or
14
supplemented, complied when so filed as to form in all material
respects with such act and the rules and regulations thereunder, (2)
believes that (except as to financial statements and schedules as to
which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement as
amended if applicable when such part became effective or was
incorporated by reference into the Registration Statement, did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (3) is of the opinion that the
Registration Statement and Prospectus, as amended or supplemented,
if applicable (except as to financial statements and schedules
included therein as to which such counsel need not express any
opinion and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to), comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations thereunder and (4) believes that (except as to
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable, as of the Commencement Date or the date
of any agreement by an Agent to purchase notes as principal, as the
case may be, and, as of the date such opinion is delivered, do not
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may qualify any opinion as
to enforceability by stating that (x) such enforceability may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
Such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the States of New York and California and the
federal law of the United States, upon opinions of other counsel (copies
of which shall be delivered to each Agent), who shall be counsel
satisfactory to counsel to the Agents, in which case the opinion shall
state that such counsel believes the Agents and counsel to the Agents are
entitled so to rely. Such counsel may also state that, insofar as such
opinion involves factual matters, he has relied, to the extent he deems
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials. With respect to paragraph (J) in
Section 4(b)(i) above, such counsel need not express any opinion as to the
information included under the heading "Certain United States Federal Tax
Consequences" and with respect to clauses (3) and (4) of (J) in Section
4(b)(i) above, such counsel may state
15
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 Pillsbury
Madison & Sutro LLP, special counsel for the Agents, covering the matters
in paragraphs (D), (E) (F) and (H) (with respect to statements in the
Prospectus under the captions "Description of Notes" and "Plan of
Distribution"), and clauses (3) and (4) of paragraph (J) in Section
4(b)(i) above. In rendering such opinions, Pillsbury Madison & Sutro LLP
may qualify any opinions as to enforceability by stating that such
enforceability may be limited by bankruptcy, insolvency reorganization,
liquidation, moratorium and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law). With respect to clause (4) of paragraph (J) in
Section 4(b)(i) above, such counsel may state its opinion in the negative
and with respect to clauses (3) and (4) of paragraph (J), such counsel may
state that its opinion and belief are based upon its participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated
by reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial
16
statements and certain financial information contained in or incorporated by
reference into the Prospectus.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents), the Company will deliver or cause to
be delivered forthwith to any Agent requesting it in writing, a certificate
signed by an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to each
Agent, of the same tenor as the certificate referred to in Section 4(c) relating
to the Registration Statement or the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company shall furnish or cause to be furnished forthwith to
each Agent a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form reasonably satisfactory to each Agent and shall be of the same tenor
as the opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to each Agent may furnish to such Agent a letter to the effect
that such Agent may rely on such last opinion to the same extent as though it
were dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such letter).
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish to any 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
17
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 and each person, if any, who controls such Agent within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages or liabilities caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made
not misleading except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
alleged omission based upon information furnished to the Company in writing by
or on behalf of such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Agent, but only with reference to information relating to such Agent furnished
in writing by such Agent expressly for use in the Registration Statement or the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such
18
firm shall be mutually agreed upon by the Agents who are parties to any such
proceeding and designated in writing by either of the Agents included in any
such proceeding after consultation with such other Agents who are parties to
such proceeding, in the case of parties indemnified pursuant to paragraph (b)
above and by the Company in the case of parties indemnified pursuant to
paragraph (a) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel as contemplated by the third sentence of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agent or Agents, as the case may be, on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Agent or Agents, as the case may
be, on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agent or Agents, as the case may be, on the other in connection
with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be on the other shall be determined by reference to
among other things, whether the untrue or allegedly untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to
19
information supplied by the Company or by the Agents and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Agents were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes offered and sold to the
public through such Agent exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company, and
not as principal, and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission such Agent would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time either
by the Company or, as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. Any Terms Agreement shall be subject to
termination in the absolute discretion of each Agent on the terms set forth
therein. The termination of this Agreement shall not require termination of any
agreement by an Agent to purchase Notes as principal, and the termination of any
such agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last two sentences
20
of Section 3(b) and Sections 3(c), 3(g), 6 7, 9, 11 and 14 shall survive;
provided that if at the time of termination an offer to purchase Notes has been
accepted by the Company but the time of delivery to the purchaser or its agent
of such Notes has not occurred, the provisions of Sections 2(b), 2(c), 3(a),
3(e), 3(f), 3(h), 4 and 5 shall also survive until such delivery has been made.
If any Terms Agreement is terminated, the provisions of Sections 3(c), 3(g), 6
and 9 and the last two sentences of Section 3(b) (which shall be deemed to have
been incorporated by reference in such Terms Agreement) shall survive.
9. Representations and Indemnities To Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and any of the Agents set forth in or
made pursuant to this Agreement or any agreement by any Agent to purchase Notes
as principal will remain in full force and effect, regardless of any
investigation made by or on behalf of any of the Agents or the Company or any of
the officers, directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Notes.
10. Notices. Unless a notice is expressly required to be given by
telephone hereunder all communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to ________ at ________________, Attention:
____________ (telecopy number: ________), ; or, if sent to the Company, will be
mailed, delivered or telecopied and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer (telecopy number: (415)
995-3493).
11. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing end is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under this
Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will he governed by and
construed in accordance with the internal laws of the State of New York
applicable to
21
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.
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 __________________________
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above-written.
________________________________
By______________________________
Title:
By______________________________
Title:
1
EXHIBIT A
MEDIUM TERM NOTES COMMISSION SCHEDULE
Term Commission Rate
%
From 9 months to less than 1 year
From 1 year to less than 18 months
From 18 months to less than 2 years
From 2 years to less than 3 years
From 3 years to less than 4 years
From 4 years to less than 5 years
From 5 years to less than 6 years
From 6 years to less than 7 years
From 7 years to less than 10 years
From 10 years to and including 15 years
From 15 years to and including 20 years
From 20 years to and including 30 years
A-1
1
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
__________, 19__
GATX Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Re: Distribution Agreement
dated ________ __, 1997
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium- Term Notes: $
Fixed Rate Floating Rate
All Notes: Notes: Notes:
Purchase price: Interest rate: Base rate:
Settlement date: Amortization Index maturity:
schedule:
Place of delivery: Spread:
Maturity date: Initial interest rates:
Interest payment dates: Initial interest reset date:
Original issue discount Interest reset dates:
provisions:
Redemption provisions: Maximum rate:
Other terms: Minimum rate:
Interest reset period:
Calculation agent:
B-1
2
[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 ____________________________
Title:
Accepted:
GATX CAPITAL CORPORATION
By ____________________________
Vice President
B-2
1
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note Administrative Procedures
Medium Term Notes (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"). ____________ and ____________ (the "Agents") have agreed to
solicit purchases of the Notes, as agents for the Company, or to purchase Notes,
as principal, for their own account. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated ________, 199_
(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,
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 and ______________, 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
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
2
PART 1: GENERAL
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Maturities: Each Note will mature on a date
selected by the purchaser and agreed to by the
Company which is not less than nine months nor
more than thirty years from its Original Issue
Date; provided, however, that Floating Rate Notes
will bear interest pursuant to the interest rate
formula stated therein and in the applicable
Pricing Supplement and will mature on an Interest
Payment Date.
Price To Public: Each Note will be sold at 100% of principal amount
(unless otherwise agreed in a Terms Agreement as
defined in the Distribution Agreement).
C-2
3
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: The Regular Record Date with respect to any
Interest Payment Date for a Fixed Rate Note shall
be the March 15 or September 15 preceding such
Interest Payment Date. The Regular Record Date
with respect to any Interest Payment Date for a
Floating Rate Note shall be the date 15 calendar
days (whether or not a Business Day) (as
hereinafter defined) preceding such Interest
Payment Date.
Interest Payment Dates: Interest payments will be made on each payment
date commencing with the first Interest Payment
Date following the Original Issue Date; provided,
however, the first payment of interest of any Note
originally issued between a Regular Record Date
and an Interest Payment Date will occur on the
Interest Payment Date following the next
succeeding Regular Record Date to the registered
owner on such next succeeding Regular Record Date.
C-3
4
If an Interest Payment Date with respect to any
Note would otherwise fall on a day that is not a
Business Day with respect to such Note, such
Interest Payment Date will be the following day
that is a Business Day with respect to such Note,
except that in the case of a LIBOR Note, if such
day falls in the next calendar month, such
Interest Payment Date will be the preceding day
that is a Business Day with respect to such LIBOR
Note.
Fixed Rate Notes: Interest payments on Fixed Rate Notes will be made
semiannually on April 1 and October 1 of each year
and at Maturity.
Floating Rate Notes: Unless otherwise stated in the applicable Pricing
Supplement, interest will be payable in the case
of the Floating Rate Notes which reset daily,
weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June,
September and December of each year, in the case
of Floating Rate Notes which reset quarterly, on
the third Wednesday of March, June, September and
December of each year; in the case of Floating
Rate Notes which reset 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.
C-4
5
Calculation of Interest: In the case of Fixed Rate Notes, interest
(including payments for partial periods) will be
calculated and paid on the basis of a 360-day year
of twelve 30-day months. In the case of Floating
Rate Notes, interest will be calculated and paid
on the basis of the actual number of days in the
interest period divided by 360 for Commercial
Paper Rate Notes, Federal Funds Rate Notes, and
LIBOR Notes, and on the basis of the actual number
of days in the interest period divided by the
actual number of days in the year for Treasury
Rate Notes and on any other basis as set forth in
the applicable Pricing Supplement. Floating Rate
Notes will have daily, weekly, monthly, quarterly,
biannual or annual resets of the rate of interest
which will be specified in the applicable Pricing
Supplement and in the applicable Note.
Acceptance of Offers: The Company will have the sole right to accept
offers to purchase Notes. Each Agent will
communicate, orally or in writing, each reasonable
offer to purchase Notes received by it. The
Company may reject any offer in whole or in part
and will promptly notify such Agent of any such
rejection. Each Agent may without notice to the
Company reject any offer received by it in whole
or in part in its discretion reasonably exercised.
Preparation of Pricing
Supplements: If any offer to purchase a Note is accepted 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 10
Pricing Supplements relating to the Notes 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.
C-5
6
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement." All offers accepted by the Company
will be settled within three Business Days after
the date of such acceptance by the Company at a
time as the purchaser and the Company shall agree
(but no earlier than the next Business Day)
pursuant to the timetable for settlement set forth
in Parts II and III hereof under "Settlement
Procedures" with respect to Book- Entry Notes and
Certificated Notes, respectively. If Settlement
Procedures A and B with respect to a particular
offer are not completed on or before the time set
forth under the applicable "Settlement Procedures
Timetable," such offer shall not be settled until
the Business Day following the completion of
Settlement Procedures A and B or such later date
as the purchaser and the Company shall agree.
In the event of a purchase of Notes by any Agent
as principal, appropriate settlement details will
be set forth in the applicable Terms Agreements to
be entered into between such Agent and the Company
pursuant to the Distribution Agreement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the administration of Book-Entry Note procedures,
the Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its obligations under a Letter of
Representations from the Company and the Trustee to DTC, dated _____, 199_ (the
"Letter of Representations") and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
C-6
7
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 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.
C-7
8
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 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.
C-8
9
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases one or
more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more
Book-Entry Notes Outstanding on such date that
represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may
be (other than 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 staring
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 island to
represent any remaining principal amount of such
Book-Entry Notes (see "Denominations" below).
C-9
10
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;
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 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.
C-10
11
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, 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.
Notice of Interest Payments On the first Business Day of March, June,
and Regular Record Dates: September and December of each year, upon request
by the Company, the Trustee will deliver to the
Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur
during the six-month period beginning on such
first Business Day with respect to Floating Rate
Notes issued in book-entry form. Promptly after
each Interest Determination Date or Calculation
Date, if applicable (including the first initial
Interest Determination Date) for Floating Rate
Notes issued in book-entry form, the Trustee will
notify Standard & Poor's of the interest rates
determined on such Interest Determination Date or
Calculation Date, if applicable.
C-11
12
Payments of Principal and
Interest-Payments of Interest
Only: Promptly after each Regular Record Date, the
Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the
amount 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. 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 end 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.
C-12
13
Manner of Payment: The total amount of any principal, premium, if
any, and interest due on Book-Entry Notes on any
Interest Payment Date or at Maturity shall be paid
by the Company to the Trustee in funds available
for use by the Trustee as of 9:30 A.M., New York
City time, on such date. The Company will make
such payment on such Book-Entry Notes by
instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee.
The Company will confirm such instructions in
writing to the Trustee. Prior to 10:00 A.M. on
each Maturity Date, the Trustee upon the
withdrawal of such funds will pay by separate wire
transfer (using Fedwire message entry instructions
on a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available
for immediate use by DTC, each payment of
interest, principal and premium, if any due on a
Book-Entry Note on such date. On each Interest
Payment Date, interest payments shall be made to
DTC in same day funds in accordance with existing
arrangements between the Trustee and DTC.
Thereafter on such dates DTC will pay, in
accordance with its SDFS operating procedures then
in effect such amounts in funds available for
immediate use to the respective Participants in
whose names such Notes are recorded in the
book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC
of the principal of, or interest on, the
Book-Entry Notes to such Participants.
Withholding Taxes: The amount of any taxes required under applicable
law to be withheld from any interest payment on a
Note will be determined and withheld by the
Participant, indirect participant in DTC or other
Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
C-13
14
Acceptance and Rejection of The Company shall have the sole right to accept
Offers: offers to purchase Notes from the Company and may
reject any such offer in whole or in part. Each
Agent shall promptly communicate to the Company,
orally or in writing, each reasonable offer to
purchase Book-Entry Notes from the Company
received by it, other than those rejected by such
Agent. The Agents shall have the right, in their
discretion reasonably exercised, without notice to
the Company, to reject any offer to purchase Notes
in whole or in part.
Settlement Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by the Company through an
agent, as Agent, will be as follows:
C-14
15
A. The Agent will advise the Company by
telephone of the following Settlement
information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
(o) Original Issue Discount features,
if any
(p) Sinking Fund Dates and Amounts,
if any
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue Date).
7. Maturity.
C-15
16
8. Net proceeds to the Company.
9. Agent's commission.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on
the name date) or by electronic transmission of
the information set forth in the above settlement
information. The Company will then assign a
CUSIP number to the Book-Entry Note
representing such Note and advise the Company
of such number. Each such communication by
the Company shall constitute a representation
and warranty by the Company to the Trustee and
the Agents that (i) such Note is then, and at the
tine of issuance and sale thereof will be, duly
authorized for issuance and sale by the
Company, (ii) such Note and the Book-Entry
Note representing such Note, will conform with
the terms of the Indenture and (iii) upon
authentication and delivery of such Book-Entry
Note, the aggregate initial offering price of all
Notes issued under the Indenture will not exceed
$500,000,000 (except for Book-Entry Notes
represented by global Notes authenticated and
delivered in exchange for or in lieu of global
Note pursuant to Sections 3.4, 3.5 or 3.6 of the
Indenture and except for Certificated Notes
authenticated and delivered upon registration of
transfer of, in exchange for, or in lieu of
Certificated Notes pursuant to any such
Sections).
C. The Trustee will communicate to DTC and the Agent through
DTC's Participant Terminal System, a pending deposit
message specifying the following settlement information:
C-16
17
1. The information set forth in Procedure
A.
2. Identification as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for DTC
purposes (which shall be the Regular
Record Date, or, in the case of Floating
Rate Notes which reset daily or weekly,
the date which is five calendar days
preceding the Interest Payment Date)
and, if then calculable, the amount of
interest payable on such Interest Payment
Date (which amount shall have been
Confirmed by the Trustee).
4. CUSIP number of the Book-Entry Note
representing such Note.
5. Whether such Book-Entry Note represents any other
Notes issued or to be issued in book-entry
form to the extent known at such time.
D. The Company will complete and deliver to the Trustee a
Book-Entry Note representing such Note in a form that has
been approved by the Company, the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry
Note representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
C-17
18
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 Agents 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-18
19
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.
C-19
20
If settlement of a Book-Entry Note is rescheduled
or canceled, the Trustee, upon receipt of notice
of such cancellation will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 P.M.,
New York City time, on the Business Day
immediately preceding the scheduled Settlement
Date.
Failure to Settle: If the Trustee fails to enter a SDFS deliver order
with respect to a Book-Entry Note pursuant to
Procedure G, the Trustee may deliver to DTC,
through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing
DTC to debit such Note to the participant account
of the Trustee maintained at DTC. DTC will process
the withdrawal message, provided that such
participant account contains a principal amount of
the Book-Entry Note representing such Note that is
at least equal to the principal amount to be
debited. If withdrawal messages are processed with
respect to all the Notes represented by a
Book-Entry Note, the Trustee will cancel and
destroy ash 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 the
surrendered Book-Entry Note and shall bear the
CUSIP number of the surrendered Book-Entry Note.
C-20
21
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in
DTC, acting on behalf of such purchaser), such
Participants and, in turn, the related Agent may
enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related
actions described in the preceding paragraph. If
such failure shall have occurred for any reason
other than default by the applicable Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse
such Agent on an equitable basis for its loss of
the use of funds during the period when the funds
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to a Note that was to have been represented by a
Book-Entry Note also representing other Notes, the
Trustee will provide, in accordance with
Settlement Procedures D and E, for the
authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in denominations
of $100,000 and integral multiples thereof.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer
or exchange at the corporate trust office of the
Trustee.
C-21
22
Interest: Each Certificated Note will bear interest in
accordance with its terms.
Payments of Principal and Upon presentment and delivery of a Certificated
Interest: Note, the Trustee will pay the principal amount of
such Note at Maturity and the final installment of
interest in immediately available funds. All
interest payments on a Certificated Note, other
than interest due at Maturity, will be made by
check drawn on the Trustee and mailed by the
Trustee to the person entitled thereto as provided
in such Note. Any payment of principal or interest
required to be made on an Interest Payment Date or
at Maturity of a Certificated Note which is not a
Business Day need not be made on such day, but may
be made on the next succeeding Business Day
(except that in the case of a LIBOR Note, if such
day falls in the next calendar month, such
Interest Payment Date will be the preceding day
that is a Business Day with respect to such LIBOR
Note) with the same force and effect as if made on
the Interest Payment Date or at Maturity, as the
case may be, and no interest shall accrue for the
period from and after such Interest Payment Data
or Maturity.
The Trustee will provide monthly to the Company a
list of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law, but shall be relieved from any
such responsibility if it acts in good faith and
in reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee at
Maturity for payment will be canceled by the
Trustee. All such canceled Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect
to such destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through any Agent, as
agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following Settlement
information with regard to each Certificated
Note:
▇-▇▇
▇▇
▇. ▇▇▇▇▇ name in which the Note is to be
registered (the "Registered Owners").
2. Exact address or addresses of the
Registered Owner for delivery, notices
and payments of principal and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if any
(k) Minimum Interest Rates, if any
(l) Redemption Dates, if any, and
redemption at whose option
(m) Original Issue Discount features if
any
(n) Sinking Fund Dates and Amounts,
if any
7. Price to public of the Note.
8. Settlement Date (Original Issue Date).
9. Maturity Date.
▇-▇▇
▇▇
▇▇. Net proceeds to the Company.
11. Agent's Commission.
B. The Company shall provide to the Trustee, by
telecopy or other mutually acceptable
method, the above Settlement information
received from the Agent and shall cause the
Trustee to execute, authenticate and deliver
the Notes. The Company also shall provide to
the Trustee and the Agent a copy of the
applicable Pricing Supplement.
C. The Trustee will complete the preprinted
four-ply Note packet containing the
following documents in forms approved by the
Company, the Presenting Agent and the
Trustee:
1. Note with Agent's customer
confirmation.
2. Stub 1 - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, the Trustee will
deliver the Notes and Stub 2 thereof to the
Presenting Agent at the following applicable
address: in the case of ___________________,
Attention: __________; in the case of
________________, Attention: __________. The
Trustee will keep Stub 1. The Presenting
Agent will acknowledge receipt of the Note
through a broker's receipt and will keep
Stub 2. Delivery of the Note will be nude
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.
C-24
25
E. The Presenting Agent will deliver the Note
(with confirmations), as well as a copy of
the Prospectus and any applicable Pricing
Supplement received from the Company to the
purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement Procedures For offers accepted by the Company, Settlement
Timetable: Procedures "A" Procedures 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.
C-25
26
The Trustee, upon receipt of the Certificated Note
front 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 in writing
the Company.
C-26