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Exhibit 1
GATX CAPITAL CORPORATION
$300,000,000
Medium-Term Notes, Series D Due from
Nine Months to Fifteen Years from Date of Issue
DISTRIBUTION AGREEMENT
January __, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Salomon Brothers Inc
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the
"Company"), confirms its agreement with the Agents with respect to the issue and
sale by the Company of up to $300,000,000 aggregate principal amount of its
Medium-Term Notes, Series D Due from Nine Months to Fifteen 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 __________ ___, (the "Indenture"), between the
Company and The Chase Manhattan Bank (National Association) (the "Trustee") and
will bear interest, if any, at rates and will have the terms to be provided in a
supplement to the Basic Prospectus referred to below. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
filed by the Company with the 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.
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Subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf, the Company hereby appoints
Xxxxxx Xxxxxxx & Co. Incorporated and Salomon Brothers Inc 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 either 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 either Agent as principal for resale to others it will enter
into a Terms Agreement relating to each such sale as defined in and in
accordance with the provisions of Section 2(b) hereof. The Company may from time
to time offer Notes for sale otherwise than through the Agents; provided,
however, that (i) so long as this Agreement shall remain in effect, the Company
shall not solicit or accept offers to purchase Notes through any agent other
than the Agents unless such other agent shall 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
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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)(l)(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 deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 filed under the Securities Act.
(b) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, 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
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statements therein, in the light of the circumstances under which they were
made, not misleading, except that (A) the representations and warranties set
forth in this Section 1(c) do not apply (x) to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning the
Agents furnished to the Company in writing by the Agents expressly for use
therein or (y) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee and (B) the representations and warranties set forth in
clauses (iii) and (iv) above, when made as of the Commencement Date or as of any
date on which an Agent solicits offers to purchase Notes or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover information
concerning an offering of particular Notes to the extent such information will
be set forth in a Prospectus Supplement.
(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(e) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 405 of Regulation C promulgated pursuant to the
Securities Act (a "Significant Subsidiary") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus, and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(f) Each of this Agreement and any applicable Terms Agreement
has been duly authorized by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity hereunder or thereunder may be
limited under applicable law. Each of this Agreement and any applicable Written
Terms Agreement (as defined in Section 2(b)) has been duly executed and
delivered.
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(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with its 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.
(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
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is a party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or, to the best of the
Company's knowledge, any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant
Subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, as then amended or supplemented, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each Agent
will use its best efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon receipt of
telephonic notice confirmed in writing from the Company, the Agents will
forthwith suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed. During the period of time that such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or letters
in accordance with Section 5; provided that if the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
providing solely for a change in interest rates, redemption provisions or
maturities offered on the Notes or for 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.
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The Company agrees to pay each Agent, as consideration for the
sale of each Note resulting from a solicitation made by such Agent, a commission
in the form of a discount from the purchase price of each Note equal to between
.125% and .625% of the principal amount of such Note as more fully set forth in
Exhibit A hereto. The Agents are authorized to solicit offers to purchase Notes
only in principal amounts of $100,000 or any amount in excess thereof that is a
whole multiple of $1,000. Each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes that should, in the reasonable judgment
of such Agent, be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any such offer in whole
or in part. Each Agent shall have the right to reject in whole or in part, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes, and any such rejection shall not be deemed a breach of its agreements
contained herein.
(b) Purchases as Principal. If requested by an Agent in
connection with a sale of Notes directly to such Agent as principal for its own
account, the Company will enter into a separate Terms Agreement that will
provide for the sale of such Notes to and the purchase by such Agent in
accordance with the terms of this Agreement and the Terms Agreement. Each Terms
Agreement shall take the form of either (i) a written agreement substantially in
the form of Exhibit B hereto or in the form of an exchange of any form of
written telecommunication between such Agent and the Company (any such written
agreement hereinafter a "Written Terms Agreement") or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company. Such Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
agreement by an Agent to purchase Notes as principal (whether or not set forth
in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date thereof, the price
to be paid to the Company for such Notes, the interest rate or interest rate
formula, if any, applicable to such Notes and any other terms of such Notes.
Each agreement shall also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public accountants of the
Company. Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Procedures (as defined below). Each date of delivery of and payment for Notes to
be purchased by an Agent as
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principal, whether pursuant to a Terms Agreement or otherwise, is referred to
herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Medium Term Notes 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, not later than 3:00 P.M. San Francisco time, on the date hereof, or at
such other time as the Agents and the Company may agree upon in writing, but in
no event later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes and (ii) the first date on
which the Company accepts any offer by an Agent to purchase Notes as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
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 amend-
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ment or supplement to the Basic Prospectus (except that the filing of an
amendment or supplement to the Basic Prospectus that merely sets forth the terms
or a description of particular Notes shall only be notified to the Agent or
Agents offering such Notes), (b) of the filing and effectiveness of any
amendment to the Registration Statement, (c) of any request by the Commission
for any amendment of the Registration Statement or any amendment of or
supplement to the Basic Prospectus or for any additional information, (d) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, the Agents shall not be
obligated to solicit offers to purchase Notes so long as they are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which (i) the Registration Statement or the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then amended
or supplemented, is delivered to a purchaser, not misleading, or (ii) if, in the
opinion of the Agents or in the opinion of the Company, it is necessary at any
time to amend or supplement the Registration Statement or the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify each Agent by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by the
Company, each Agent shall forthwith suspend such solicitation and cease using
the Prospectus as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an 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
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may reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to the Agents pursuant to paragraph (f)
below and Sections 5(a), 5(b) and 5(c) in connection with the preparation or
filing of such amendment or supplement, are satisfactory in all respects to each
Agent, upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, such Agent will
resume the solicitation of offers to purchase Notes hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Notes an
Agent may own as principal has been completed, if any event described above in
this paragraph (b) occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus as then amended or
supplemented, satisfactory in all respects to such Agent, and will supply such
amended or supplemented Prospectus to such Agent in such quantities as such
Agent may reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to each Agent pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
such Agent, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration Statement, such Agent may
resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earnings statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and
during the period mentioned in Section 3(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as each Agent may reasonably request.
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(e) The Company will qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agent shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Notes for investment
under the laws of such jurisdictions as either Agent may designate; provided
that the Company shall not be obligated to so qualify the Notes if such
qualification requires it to file any general consent to service of process or
to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified.
(f) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as either Agent may from time to time reasonably request and shall
notify each Agent promptly in writing of any downgrading or of its receipt of
any notice of (A) any intended or potential downgrading or (B) any review or
possible change that does not indicate the direction of a possible change in the
rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto, and of the Basic Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company;
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(ix) the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.; and (x) the reasonable fees
and disbursements of counsel for the Agents incurred in connection with the
offering and sale of the Notes, including any opinions to be rendered by such
counsel hereunder.
(h) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without the prior consent of each Agent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes that are to be sold pursuant to
such agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in any such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase the Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof prior to or concurrently with any such solicitation or purchase, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified below:
(a) Prior to such solicitation or purchase, as the case may be,
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
the reasonable judgment of the relevant Agent or such purchaser, as the
case may be, is material and adverse and that makes it, in the
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reasonable judgment of such Agent or such purchaser, impracticable to
market the Notes on the terms and in the manner contemplated in the
Prospectus as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade; (B) suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (C) declaration of a
general moratorium on commercial banking activities in New York by
either federal or New York state authorities or (D) any outbreak or
escalation of any hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the relevant
Agent or such purchaser, as the case may be, is material and adverse
and, in the case of any of the events described in clauses (ii)(A)
through (D), such event, singly or together with any other such event,
makes it, in the 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
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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 Xxxxxx X. Xxxx, Vice
President and General Counsel for the Company, to the effect that:
(A) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership and leasing of its
properties requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation and 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
-14-
15
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 agent in accordance with the provisions of
the Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with
their terms and will be entitled to the benefits of the
Indenture.
(F) Each of this Agreement and any applicable Terms
Agreement has been duly authorized by the Company and each of
this Agreement and any Written Terms Agreement has been duly
executed and delivered by the Company.
(G) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture, the Notes and any applicable Terms
Agreement will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, considered as one enterprise, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental 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
-15-
16
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
-16-
17
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented, complied when so filed
as to form in all material respects with such act and the rules
and regulations thereunder, (2) believes that (except as to
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement as
amended, if applicable when such part became effective or was
incorporated by reference into the Registration Statement, did
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is
of the opinion that the Registration Statement and Prospectus,
as amended or supplemented, if applicable (except as to
financial statements and schedules included therein as to which
such counsel need not express any opinion and except for that
part of the Registration Statement that constitutes the Form
T-1 heretofore referred to), comply as to form in all material
respects with the Securities 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
-17-
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general applicability. Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the States of New York
and California and the federal law of the United States, upon opinions
of other counsel (copies of which shall be delivered to each Agent),
who shall be counsel satisfactory to counsel to the Agents, in which
case the opinion shall state that such counsel believes the Agents and
counsel to the Agents are entitled so to rely. Such counsel may also
state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
With respect to paragraph (J) in Section 4(b)(i) above, such counsel
need not express any opinion as to the information included under the
heading "Certain United States Federal Tax Consequences" and with
respect to clauses (3) and (4) of (J) in Section 4(b)(i) above, such
counsel may state that his opinion and belief are based upon his
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the
documents 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, 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
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
-18-
19
supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus.
(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),
-19-
20
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.
-20-
21
(d) In the event that the Company issues any Notes that are not
exempt from the usury provisions of Section 1 of Article XV of the California
Constitution ("California usury law"), the interest rate on such Notes shall
bear interest at a rate or rates not exceeding that permitted under California
usury law.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent 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
-21-
22
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be mutually agreed upon by the Agents who are
parties to any such proceeding and designated in writing by either of the Agents
included in any such proceeding after consultation with such other Agents who
are parties to such 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
connec-
-22-
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tion with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Agent or Agents, as the case may be, on the other from the offering
of the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Agent or Agents, as the case may
be, on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agent or Agents, as the case may be, on the other in connection
with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be, on the other shall be determined by reference to,
among other things, whether the untrue or allegedly untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(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
-23-
24
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to an Agent as principal), each Agent is acting solely as agent of the Company,
and not as principal, and does not assume any obligation towards or relationship
of agency or trust with any purchaser of Notes. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission such Agent would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time
either by the Company or, as to any Agent, by the Company or such Agent upon the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. Any Terms Agreement shall be
subject to termination in the absolute discretion of each Agent on the terms set
forth therein. The termination of this Agreement shall not require termination
of any agreement by an Agent to purchase Notes as principal, and the termination
of any such agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last two sentences of Section 3(b) and Sections 3(c), 3(g), 6,
7, 9, 11 and 14 shall survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of such Notes has not occurred, the
provisions of Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(h), 4 and 5 shall 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)
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25
(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 Xxxxxx Xxxxxxx & Co. Incorporated at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Continuously Offered
Products (telecopy number: (000) 000-0000), with a copy to 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx, IBD Information Center 34th Floor
(telecopy number: (000) 000-0000), and to Salomon Brothers Inc, 0 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 10048, Attention: Medium-Term Note Group (telecopy
number: (000) 000-0000); or, if sent to the Company, will be mailed, delivered
or telecopied and confirmed to it at Four Embarcadero Center, San Francisco,
California 94111, Attention: Treasurer (telecopy number: (000) 000-0000).
11. Successors. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agents shall sign any
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26
amendment or supplement giving effect to the addition of any such firm as an
Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
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.
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27
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.
XXXXXX XXXXXXX & CO. INCORPORATED
By _____________________________
Title _______________________
SALOMON BROTHERS INC
By _____________________________
Title _______________________
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EXHIBIT A
MEDIUM TERM NOTES COMMISSION SCHEDULE
Term Commission Rate
---- ---------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to and including 15 years .625%
A-1
29
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
_____________, 19__
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Attention:
Re: Distribution Agreement
dated _________ January __, 1996
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes: $
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
---------- ---------- ---------
Purchase Interest Base rate:
price: rate:
Settlement Amortization Index
date: schedule: maturity:
Place of Spread:
delivery:
Maturity Initial interest
date: rates:
Interest Initial interest
payment dates: reset date:
Original issue Interest reset
discount dates:
provisions:
Maximum rate:
Redemption
provisions: Minimum rate:
Other terms: Interest reset
period:
Calculation agent:
B-1
30
[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
31
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note Administrative Procedures
Medium Term Notes, Series D (the "Notes") in the aggregate
principal amount of $300,000,000 are to be offered on a continuing basis by GATX
Capital Corporation (the "Company"). Xxxxxx Xxxxxxx & Co. Incorporated and
Salomon Brothers Inc (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 January __, 1996 (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.
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PART I: GENERAL
Date of Each Note will be dated as of the date of its authentication
Issuance/ by the Trustee. Each Note shall also bear an original issue
Authentication: 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 fifteen 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 Each Note will be sold at 100% of principal amount (unless
To Public: otherwise agreed in a Terms Agreement as defined in the
Distribution Agreement).
Interest Payments: Each payment of interest on Fixed Rate Notes will include
interest accrued through the day preceding, as the case may
be, the Interest Payment Date or Stated Maturity (each
Stated Maturity is referred to herein as "Maturity"). Unless
otherwise indicated in the applicable Pricing Supplement,
interest payments on each Floating Rate Note (except in the
case of Floating Rate Notes which reset daily or weekly)
shall be the amount of interest accrued from, and including,
the next preceding Interest Payment Date in respect of which
interest has been paid (or from, and including, the date of
original issue if no interest 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 (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
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the interest payment at Maturity will include interest
accrued to, but excluding, such date.
Regular The Regular Record Date with respect to any Interest Payment
Record Dates: Date for a Fixed Rate Note shall be the March 15 or
September 15 preceding such Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for a Floating Rate Note shall be the date 15 calendar
days (whether or not a Business Day) (as hereinafter
defined) preceding such Interest Payment Date.
Interest
Payment Dates: Interest payments will be made on each payment date
commencing with the first Interest Payment Date following
the Original Issue Date; provided, however, the first
payment of interest of any Note originally issued between a
Regular Record Date and an Interest Payment Date will occur
on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next
succeeding Regular Record Date.
If an Interest Payment Date with respect to any Note would
otherwise fall on a day that is not a Business Day with
respect to such Note, such Interest Payment Date will be the
following day that is a Business Day with respect to such
Note, except that in the case of a LIBOR Note, if such day
falls in the next calendar month, such Interest Payment Date
will be the preceding day that is a Business Day with
respect to such LIBOR Note.
Fixed Interest payments on Fixed Rate Notes will be made
Rate Notes: semiannually on April 1 and October 1 of each year and at
Maturity.
Floating Unless otherwise stated in the applicable Pricing
Rate Notes: 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
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specified in the Floating Rate Note and, in each case, at
Maturity or, if applicable, upon redemption or optional
repayment. For additional special provisions relating to
Floating Rate Notes, see the Prospectus.
Calculation
of Interest: In the case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and paid on
the basis of a 360-day year of twelve 30-day months. In the
case of Floating Rate Notes, interest will be calculated and
paid on the basis of the actual number of days in the
interest period divided by 360 for Commercial Paper Rate
Notes, Federal Funds Rate Notes, and LIBOR Notes, and on the
basis of the actual number of days in the interest period
divided by the actual number of days in the year for
Treasury Rate Notes and on any other basis as set forth in
the applicable Pricing Supplement. Floating Rate Notes will
have daily, weekly, monthly, quarterly, semiannual or annual
resets of the rate of interest which will be specified in
the applicable Pricing Supplement and in the applicable
Note.
Acceptance
of Offers: The Company will have the sole right to accept offers to
purchase Notes. Each Agent will communicate, orally or in
writing, each reasonable offer to purchase Notes received by
it. The Company may reject any offer in whole or in part and
will promptly notify such Agent of any such rejection. Each
Agent may without notice to the Company reject any offer
received by it in whole or in part in its discretion
reasonably exercised.
Preparation
of Pricing If any offer to purchase a Note is accepted by the Company,
Supplements: 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,
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and the Supplemented Prospectuses to which they are attached
(other than those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the Company in
payment for a Note and the authentication and delivery of
such Note shall, with respect to such Note, constitute
"settlement." All offers accepted by the Company will be
settled within three Business Days after the date of such
acceptance by the Company at a time as the purchaser and the
Company shall agree (but no earlier than the next Business
Day) pursuant to the timetable for settlement set forth in
Parts II and III hereof under "Settlement Procedures" with
respect to Book- Entry Notes and Certificated Notes,
respectively. If Settlement Procedures A and B with respect
to a particular offer are not completed on or before the
time set forth under the applicable "Settlement Procedures
Timetable," such offer shall not be settled until the
Business Day following the completion of Settlement
Procedures A and B or such later date as the purchaser and
the Company shall agree.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be set forth
in the applicable Terms Agreements to be entered into
between such Agent and the Company pursuant to the
Distribution Agreement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the administration of Book-Entry Note
procedures, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its obligations
under a Letter of Representations from the Company and the Trustee to DTC, dated
January __, 1996 (the "Letter of Representations") and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having the
same Interest Rate, Original Issue Date, Maturity Date,
Redemption Date and Prices, if any, Sinking Fund Dates and
Amounts, 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
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Issue Date, base rate upon which interest may be determined
(each, an "Interest Rate Basis"), which may be the
Commercial Paper Rate, the Federal Funds Date, the Treasury
Rate, LIBOR or any other rate set forth by the Company,
Initial Interest Rate, Index Maturity, Spread, if any,
Minimum Interest Rate, if any, Maximum Interest Rate, if
any, Redemption Dates and Prices, if any, Sinking Fund Dates
and Amounts, if any, Original Issue Discount features, if
any, Interest Reset Dates, Interest Payment Dates and
Maturity (collectively, "Floating Rate Terms") will be
represented initially by a single Book-Entry Note.
Each Book-Entry Note will be dated and issued as of the date
of its authentication by the Trustee. Each Book-Entry Note
will bear an Interest Accrual Date, which will be (a) with
respect to an original Book-Entry Note (or any portion
thereof), its Original Issue Date and (b) with respect to
any Book- Entry Note (or portion thereof) issued
subsequently upon exchange of a Book- Entry Note or in lieu
of a destroyed, lost or stolen Book-Entry Note, the most
recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Book-Entry Note or
Notes (or if no such payment or provision has been made, the
Original Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of such
subsequently issued Book-Entry Note. No Book-Entry Note
shall represent any Note issued in certificated form.
Identification: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau")
for the reservation of approximately 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
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representing Notes issued in book- entry form. Upon
obtaining such additional CUSIP numbers, the Company will
deliver a list of such additional numbers to the Trustee and
DTC.
Registration: Each Book-Entry Note will be registered in the name of Cede
& Co., as nominee for DTC, on the security register
maintained by the Security Registrar under the Indenture.
The beneficial owner of a Note issued in book-entry form
(i.e., an owner of a beneficial interest in a Book-Entry
Note) (or one or more indirect participants in DTC
designated by such owner) will designate one or more
participants in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent for
such beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note
issued in book-entry form in the account of such
Participants. The ownership interest of such beneficial
owner in such Note issued in book-entry form will be
recorded through the records of such Participants or through
the separate record of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service Bureau
at any time a written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes Outstanding on such
date that represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may be (other
than 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
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of such a notice, DTC will send to its participants
(including the Trustee) a written notice to the effect that
such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Book-Entry
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such
Book-Entry Notes for a single Book-Entry Note bearing the
new CUSIP number and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Book-Entry
Notes to be exchanged exceed $200,000,000 in aggregate
principal amount, one or more replacement Book-Entry Note(s)
will be authenticated and issued, each to represent
$200,000,000 of principal amount of the exchanged Book-Entry
Notes and an additional Book-Entry Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: Book-Entry Notes will be issued in denominations of $100,000
and any larger denomination which is an integral multiple of
$1,000. Book-Entry Notes will be denominated in principal
amounts not in excess of $200,000,000. If one or more Notes
issued in book-entry form having an aggregate principal
amount in excess of $200,000,000 would, but for the
preceding sentence, be represented by a single Book-Entry
Note, then one Book-Entry Note will be issued to represent
$200,000,000 principal amount of such Note or Notes issued
in book-entry form and an additional Book-Entry Note or
Notes will be issued to represent any remaining principal
amount of such Note or Notes issued in book-entry form. In
such a case, each of the Book-Entry Notes representing such
Note or Notes issued in book-entry form shall be assigned
the same CUSIP number.
Interest-General: Each payment of interest on each Book-Entry Note that is a
Fixed Rate Note will include interest accrued through the
day preceding, as the case may be, the Interest Payment Date
or Maturity Date. Unless otherwise indicated in the
applicable Pricing Supplement, interest
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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 On the first Business Day of March, June, September and
Interest Payments December of each year, upon request by the Company, the
and Regular Trustee will deliver to the Company and DTC a written list
Record Dates: 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.
Payments of Promptly after each Regular Record Date, the Trustee will
Principal and deliver to the Company and DTC a written notice specifying
Interest-Payments by CUSIP number the amount interest to be paid on each
of of Interest Book-Entry Note on the following Interest Payment Date
Only: (other than an Interest Payment Date
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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 and in the manner
set forth below under "Manner of Payment." If any Maturity
of a Book-Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for the
period from and after such Maturity. Promptly after payment
to DTC of the principal, interest and premium, if any, due
at the Maturity of such 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
cancelled Note.
Manner of The total amount of any principal, premium, if any, and
Payment: 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
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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 The amount of any taxes required under applicable law to be
Taxes: withheld from any interest payment on a Note will be
determined and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Acceptance and The Company shall have the sole right to accept offers to
Rejections of purchase Notes from the Company and may reject any such
Offers: 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.
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Settlement Settlement Procedures with regard to each Note in book-entry
Procedures: form sold by the Company through an agent, as Agent, will be
as follows:
A. The Agent will advise the Company by telephone of the
following Settlement information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
(o) Original Issue Discount features,
if any
(p) Sinking Fund Dates and Amounts, if
any
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue Date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission.
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B. The Company will advise the Trustee by telephone
(confirmed in writing at any time on the same date)
or by electronic transmission of the information set
forth in the above settlement information. The
Company will then assign a CUSIP number to the
Book-Entry Note representing such Note and advise
the Company of such number. Each such communication
by the Company shall constitute a representation and
warranty by the Company to the Trustee and the
Agents that (i) such Note is then, and at the time
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 $300,000,000 (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:
1. The information set forth in Settlement
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,
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the amount of interest payable on such
Interest Payment Date (which amount shall
have been Confirmed by the Trustee).
4. CUSIP number of the Book-Entry Note
representing such Note.
5. Whether such Book-Entry Note represents any
other Notes issued or to be issued in book-
entry form to the extent known at such time.
D. The Company will complete and deliver to the
Trustee a Book-Entry Note representing such Note
in a form that has been approved by the Company,
the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the 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 such Note less such Agent's
commission. Any entry of such a deliver order shall
be deemed to constitute a representation and
warranty by the Trustee to DTC that the Book-Entry
Note representing such Note has been
executed and authenticated.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Presenting Agent
maintained by DTC, in an
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amount equal to the initial public offering price of
such Note.
I. Transfers of funds in accordance with SDFS deliver
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.
Settlement For orders of Notes accepted by the Company, Settlement
Procedures Procedures "A" through "K" set forth above shall be completed
Timetable: 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 9:00 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
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is to be settled more than one Business Day after the trade
date, if the initial interest rate for a Floating Rate Note is
not known at the time that Settlement Procedure A is
completed, Settlement Procedures B and C shall be completed as
soon as such rates have been determined, but no later than
11:00 A.M. and 2:00 P.M., New York City time, respectively, on
the second Business Day before the Settlement Date. Settlement
Procedure I is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, 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 If the Trustee fails to enter an SDFS deliver order with
To Settle: 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 such Book-Entry Note
and deliver to the Company a certificate of destruction with
respect to each cancelled Note. The CUSIP number assigned to
such Book-Entry Note shall, in accordance with CUSIP Service
Bureau procedures, be cancelled 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
cancelled immediately after issuance, and the other of which
shall represent the other Notes
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previously represented by the surrendered Book-Entry Note and
shall bear the CUSIP number of the surrendered Book-Entry
Note.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the related Agent
may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures G and H, respectively. Thereafter, the
Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for its loss of the
use of funds during the period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
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 A Certificated Note may be presented for transfer or exchange
and Exchanges: at the corporate trust office of the Trustee.
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Interest: Each Certificated Note will bear interest in accordance with
its terms.
Payments of Upon presentment and delivery of a Certificated Note, the
Principal and Trustee will pay the principal amount of such Note at Maturity
Interest: and the final installment of interest in immediately available
funds. All interest payments on a Certificated Note, other
than interest due at Maturity, will be made by check drawn on
the Trustee and mailed by the Trustee to the person entitled
thereto as provided in such Note. Any payment of principal or
interest required to be made on an Interest Payment Date or at
Maturity of a Certificated Note which is not a Business Day
need not be made on such day, but may be made on the next
succeeding Business Day (except that in the case of a LIBOR
Note, if such day falls in the next calendar month, such
Interest Payment Date will be the preceding day that is a
Business Day with respect to such LIBOR Note) with the same
force and effect as if made on the Interest Payment Date or at
Maturity, as the case may be, and no interest shall accrue for
the period from and after such Interest Payment Date or
Maturity.
The Trustee will provide monthly to the Company a list of the
principal and interest to be paid on Certificated Notes
maturing in the next succeeding month. The Trustee will be
responsible for withholding taxes on interest paid as required
by applicable law, but shall be relieved from any such
responsibility if it acts in good faith and in reliance upon
an opinion of counsel.
Certificated Notes presented to the Trustee at Maturity for
payment will be cancelled by the Trustee. All such cancelled
Notes held by the Trustee shall be destroyed, and the Trustee
shall furnish to the Company a certificate with respect to
such destruction.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: purchased through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone
of the following Settlement information with regard to each
Certificated Note:
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1. Exact name in which the Note is to be registered
(the "Registered Owner").
2. Exact address or addresses of the Registered
Owner for delivery, notices and payments of
principal and interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if any
(k) Minimum Interest Rates, if any
(l) Redemption Dates, if any, and redemption
at whose option
(m) Original Issue Discount features, if any
(n) Sinking Fund Dates and Amounts, if any
7. Price to public of the Note.
8. Settlement Date (Original Issue Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's Commission.
B. The Company shall provide to the Trustee, by telecopy
or other mutually acceptable method, the above
Settlement information received from the Agent and shall
cause the
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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 Xxxxxx
Xxxxxxx & Co. Incorporated, 1585 Broadway, New York,
New York 10036, Attention: Managing Director, Short and
Medium Term Financial Department; in the case of
Salomon Brothers Inc, The Bank of New York, Xxx Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Dealer Clearance. The Trustee will keep Stub 1. The
Presenting Agent will acknowledge receipt of the Note
through a broker's receipt and will keep Stub 2.
Delivery of the Note will be made only against such
acknowledgment of receipt. Upon determination that the
Note has been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire the net
proceeds of the Note after deduction of its applicable
commission to the Company pursuant to standard wire
instructions given by the Company.
E. The Presenting Agent will deliver the Note (with
confirmations), as well as a copy of the Prospectus and
any applicable Pricing Supplement received from the
Company to the purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
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Settlement For offers accepted by the Company, Settlement Procedures "A"
Procedures through "F" set forth above shall be completed on or before
Timetable: 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 In the event that a purchaser of a Certificated Note from the
To Settle: Company shall either fail to accept delivery of or make
payment for a Certificated Note on the date fixed for
settlement, the Presenting Agent will forthwith notify the
Trustee and the Company by telephone, confirmed in writing,
and return the Certificated Note to the Trustee.
The Trustee, upon receipt of the Certificated Note from the
Agent, will immediately advise the Company and the Company
will promptly arrange to credit the account of the Presenting
Agent in an amount of immediately available funds equal to the
amount previously paid by such Agent in settlement for the
Certificated Note. Such credits will be made on the Settlement
Date, if possible, and in any event not later than the
Business Day following the Settlement Date; provided that the
Company has received notice on the same day. If such failure
shall have occurred for any reason other than failure by such
Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent
on an equitable basis for its loss of the use of funds during
the period when the funds were credited to the account of the
Company. Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Trustee will cancel
and destroy the Certificated Note, make appropriate entries in
its records to reflect the fact that the Certificated Note was
never issued, and accordingly notify in writing the Company.
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