Exhibit 1.2
UNDERWRITING AGREEMENT
__________, 1999
GATX Capital Corporation
Xxxx Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We (the "Manager") understand that GATX Capital Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $___,000,000 aggregate
principal amount of its ___% Notes due _____ (the "___% Notes") and $___,000,000
aggregate principal amount of its ___% Notes due _____ (the "___% Notes" and,
together with the ___% Notes, the "Offered Securities"). The Offered Securities
will be issued pursuant to an Indenture dated as of July 31, 1989, as
supplemented and amended by the Supplemental Indenture dated as of December 18,
1991, the Second Supplemental Indenture dated as of January 2, 1996 and the
Third Supplemental Indenture dated as of October 14, 1997, each being between
the Company, as issuer, and The Chase Manhattan Bank, as trustee. Subject to the
terms and conditions, and in reliance upon the representations and warranties,
set forth herein or incorporated by reference herein, the Company hereby agrees
to sell and the underwriters (including ourselves) named below (such
underwriters being herein called the "Underwriters") agree to purchase,
severally and not jointly, the principal amounts of such Offered Securities set
forth opposite their names below at a purchase price of 99.___% of the principal
amount of the ___% Notes and 99.___% of the principal amount of the ___% Notes
plus, in each case, accrued interest, if any, from __________, 1999 to the date
of payment and delivery.
Principal Amount Principal Amount
of ___% Notes to be of ___% Notes to be
Name Purchased Purchased
---- --------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated $ $
Warburg Dillon Read L.L.C. $ $
------------------- -------------------
Total: $ $
Delivery of and payment for the Offered Securities shall be made at 11:00
A.M., New York City time, on _________, 1999, or such later date (not later than
__________, 1999) as the Manager shall designate. Delivery of the Offered
Securities shall be made to the Manager of the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Manager of the purchase price therefor to or upon the order of the Company by
wire transfer of immediately available funds or by such other manner of payment
as may be agreed upon by the Company and the Manager. Delivery and release of
the Offered Securities shall be to The Depository Trust Company and payment for
such Offered Securities shall be made at the office of Pillsbury Madison & Sutro
LLP, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
The Offered Securities shall have the terms set forth in the Prospectus
dated __________, 1999 and the Prospectus Supplement dated __________, 1999,
including the following:
% Notes
-------
Maturity: __________, _____
Interest Rate: ___%
Redemption Provisions: Not redeemable
prior to maturity
Interest Payment Dates: _____ 1 and _____ 1
% Notes
-------
Maturity: __________, _____
Interest Rate: ___%
Redemption Provisions: Not redeemable
prior to maturity
Interest Payment Dates: _____ 1 and _____ 1
All the provisions contained in the document entitled GATX Capital
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
__________, 1999, a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
the undersigned.
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Very truly yours,
Xxxxxx Xxxxxxx & Co. Incorporated
Warburg Dillon Read L.L.C.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------------
Title:
Acting severally on behalf of themselves and the several Underwriters named
above
Accepted:
By: GATX CAPITAL CORPORATION
By:
-------------------------
Title:
GATX CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
__________, 1999
1
From time to time, GATX Capital Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") pursuant to the provisions of an Indenture dated as of July 31,
1989, as supplemented and amended by a Supplemental Indenture dated as of
December 18, 1991, a Second Supplemental Indenture dated as of January 2, 1996,
a Third Supplemental Indenture dated as of October 14, 1997 between the Company
and The Chase Manhattan Bank, as Trustee (the "Senior Indenture"), or an
Indenture that may be entered into between the Company and a trustee to be
designated (together with the Senior Indenture, the "Indenture"). The Securities
may have varying designations, maturities, rates and times of payment of
interest, if any, selling prices, redemption terms, if any, and other specific
terms.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating to
the Securities and has filed with or transmitted for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act").
The term Registration Statement means the registration statement, including the
exhibits thereto, as amended to the date of the Underwriting Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Offered Securities (the "Prospectus
Supplement"), as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically referring to the Offered Securities together
with the Basic Prospectus. As used herein, the terms "Registration Statement,"
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Underwriters' Securities" means the Offered Securities to
be purchased by the Underwriters herein. The term "Contract Securities" means
the Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
The Company represents and warrants to and agrees with each of
the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus,
complied or will comply when so filed in all material respects
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with the Exchange Act and the rules and regulations of the Commission
thereunder and will be timely filed as required thereby, (ii) each part of
the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the
Registration Statement and the Prospectus do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this Section II(b) do not
apply (x) to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning the Underwriters furnished to
the Company in writing by the Underwriters expressly for use therein or
(y) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
(d) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 405 of Regulation C promulgated pursuant to
the Securities Act (a "Significant Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described
in the Prospectus, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(e) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, except as rights to indemnity and contribution hereunder may be
limited under applicable law.
(f) The Senior Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered
by the Company, is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditor's rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(g) The Delayed Delivery Contracts (as defined in Section III
below), if any, have been duly authorized, executed and delivered by the
Company and are valid and binding agreements of the Company, enforceable
in accordance with their respective terms except (i) as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
or relating to creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
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(h) The Offered Securities have been duly authorized and, when
the Offered Securities have been executed and authenticated in accordance
with the provisions of the Indenture and delivered to and duly paid for by
the purchasers thereof, they will conform to the descriptions thereof in
the Prospectus, will be entitled to the benefits of the Indenture and will
be valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture and the Offered Securities will not contravene
any provision of applicable law or the certificate of incorporation or
bylaws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, considered as one enterprise, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and, to the best of the Company's
knowledge, no consent, approval or authorization of any governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the Securities Act, the Exchange Act,
the Trust Indenture Act or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(j) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, considered as one
enterprise, from that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or,
to the best of the Company's knowledge, threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or, to the best of the Company's knowledge, any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that are not described or
filed as required.
(l) Each of the Company and each of its Significant
Subsidiaries has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts
and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, as then amended or supplemented, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
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III.
If the Prospectus provides for sales of Offered Securities pursuant
to delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Manager shall receive from the
Company as compensation, for the accounts of the Underwriters, a commission in
the form of a discount as set forth in the Underwriting Agreement in respect of
the principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of the Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
IV.
The Company is advised by the Manager that the Underwriters propose
to make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
V.
Payment for the Underwriters' Securities shall be made by the
several Underwriters through the Manager to or upon the order of the Company by
wire transfer of immediately available funds or by such other manner of payment
as may be agreed upon by the Company and the Manager at the time and place set
forth in the Underwriting Agreement, upon delivery to or as directed by the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of the delivery. The time and date of such payment and delivery of
the Underwriters' Securities are herein referred to as the Closing Date.
VI.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business
5
or operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, as amended or
supplemented as of the Closing Date, that, in the reasonable
judgment of the Manager, is material and adverse and that makes it,
in the reasonable judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner contemplated
in the Prospectus, as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading in securities generally on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade; (B) suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (C) declara tion of a general moratorium on
commercial banking activities in New York by either federal or New
York state authorities; or (D) any outbreak or escalation of any
hostilities or any change in financial markets or any calamity or
crisis that, in the reasonable judgment of the Manager, is material
and adverse and, in the case of any of the events described in
clauses (ii)(A) through (D), such event, singly or together with any
other such event, makes it, in the reasonable judgment of the
Manager, impracticable to market the Offered Securities on the terms
and in the manner contemplated by the Prospectus;
(iii) There shall not have occurred any downgrading, nor shall
any notice have been given of (A) any intended or potential
downgrading or (B) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(b) The Manager shall have received on the Closing Date an opinion
of Xxxxxx X. Xxxx, Vice President and General Counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion
of Pillsbury Madison & Sutro LLP, counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit B hereto.
(d) The Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect that the representations and warranties of the Company
contained herein are true and correct as of such date and the Company has
complied with all the agreements and satisfied all the conditions required by
this Agreement to be performed or satisfied by it at or before such date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(e) The Manager shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Manager, from
the independent public accountants of the Company, and from such other
independent public accountants as the Manager may reasonably request, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
6
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) Prior to the termination of the offering of the Offered
Securities pursuant to this Agreement, the Company will not file any Prospectus
Supplement relating to the Offered Securities or any amendment to the
Registration Statement unless the Company has previously furnished to the
Manager a copy thereof for its review and will not file any such proposed
amendment or supplement to which the Manager reasonably objects; provided that
the foregoing requirement shall not apply to any of the Company's periodic
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, which filings the Company will cause to
be timely filed with the Commission and copies of which filings the Company will
cause to be delivered to the Manager promptly after being mailed for filing with
the Commission. Subject to the foregoing sentence, the Company will promptly
cause each Prospectus Supplement to be filed with or transmitted for filing to
the Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise the Manager (a) of the filing of any amendment or
supplement to the Basic Prospectus, (b) of the filing and effectiveness of any
amendment to the Registration Statement, (c) of any request by the Commission
for any amendment of the Registration Statement or any amendment of or
supplement to the Basic Prospectus or for any additional information, (d) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, or until the
distribution of any Offered Securities an Underwriter may own as principal has
been completed, any event occurs or condition exists as a result of which (i)
the Registration Statement or the Prospectus as then amended or supplemented
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or (ii) if, in the opinion of the Manager or in
the opinion of the Company, it is necessary at any time to amend or supplement
the Registration Statement or the Prospectus, as then amended or supplemented,
to comply with applicable law, the Company will immediately notify each
Underwriter by telephone (with confirmation in writing) to suspend solicitation
of offers to purchase Offered Securities or any resale thereof and, if so
notified by the Company, each Underwriter shall forthwith suspend such
solicitation or resale and cease using the Prospectus as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise the Underwriters promptly by telephone (with confirmation in writing)
and, at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each Underwriter in such quantities as such Underwriter may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to the Underwriters pursuant to paragraph
(f) below and Sections VI(b) and (c) in connection with the preparation or
filing of such amendment or supplement, are satisfactory in all respects to each
Underwriter, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration
7
Statement, such Underwriter will resume the solicitation of offers to purchase
Offered Securities or any resale thereof hereunder.
(c) The Company will make generally available to its security
holders and to the Manager as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering the twelve-month period
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the date of the Underwriting Agreement. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such earnings
statement shall be made available not later than 90 days after the close of the
period covered thereby and in all other cases shall be made available not later
than 45 days after the close of the period covered thereby.
(d) The Company will furnish to the Manager without charge two
signed copies of the Registration Statement and all amendments thereto,
including exhibits and any documents incorporated by reference therein, and,
during the period mentioned in Section VII(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as the Manager may reasonably request.
(e) The Company will qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and will pay all reasonable expenses (including fees
and disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate, provided that the Company shall not be obligated to so qualify the
Offered Securities if such qualification requires it to file any general consent
to service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) During the term of the Underwriting Agreement, the Company shall
furnish to the Manager such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Offered Securities, the Underwriting Agreement and
the performance by the Company of its obligations hereunder or thereunder as the
Manager may from time to time reasonably request and shall notify the Manager
promptly in writing of any downgrading or of its receipt of any notice of (A)
any intended or potential downgrading or (B) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Offered Securities
is consummated, pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the provisions of Section
VII(e), including filing fees and the reasonable fees and disbursements of the
counsel for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto, and of the Basic
Prospectus and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of the Indenture and any Blue Sky
Memoranda; (vii) any fees charged by rating agencies for the rating of the
8
Offered Securities; (viii) any reasonable out-of-pocket expenses incurred by the
Underwriters with the approval of the Company and (ix) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, the Company will
not, without the prior consent of the Manager, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Offered Securities (other than (i) the Offered Securities that are to be
sold pursuant to such agreement, (ii) Offered Securities previously agreed to be
sold by the Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in any such agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the officers, directors, employees and agents of such Underwriter,
and each person, if any, who controls such Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages or liabilities caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (if
used within the period set forth in paragraph (b) of Section VII and as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or alleged omission based upon information furnished to the Company in writing
by or on behalf of such Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Underwriter, but only with reference to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager,
9
in the case of parties indemnified pursuant to paragraph (b) above and by the
Company in the case of parties indemnified pursuant to paragraph (a) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Offered Securities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the Prospectus, bear to the total aggregate public offering price of such
Offered Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section VIII were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section VIII, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities offered and sold to the public through such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or allegedly untrue statement or
10
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section VIII are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i)
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
If any one or more Underwriters shall fail to purchase and pay for
any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all the
remaining underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Offered Securities set forth in
the Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Offered Securities, and if such nondefaulting Underwriters do not purchase all
the Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section IX, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Manager shall determine in
order that the required changes in the Registration Statement and the Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
X.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Manager, impractical to market the Offered
Securities.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
11
Agreement except pursuant to Section IX hereof, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
12
Schedule I
DELAYED DELIVERY CONTRACT
__________, 1999
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from GATX Capital Corporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned
$
---------------
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated _________, 1999 and Prospectus
Supplement dated __________, 1999, receipt of copies of which are hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- --------------
$
-------- --------- --------------
$
-------- --------- --------------
$
-------- --------- --------------
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by wire transfer of
immediately available funds or by such other manner of payment as may be agreed
upon by the Company and the undersigned at the office of __________, New York,
N.Y. at 10:00 a.m. (New York time) on the Delivery Date, upon delivery to or as
directed by the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect,
13
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
thereto and their respective successors, but will not be assignable by either
party hereto without the prior written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York applicable to a contract executed and performed in
such State without giving effect to the conflicts of laws principles thereof.
Yours very truly,
------------------------------
(Purchaser)
By
---------------------------
------------------------------
(Title)
------------------------------
(Address)
Accepted:
GATX CAPITAL CORPORATION
By
-----------------------
14
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
Telephone No.
(Including
Name Area Code) Department
---- ---------- ----------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
--------------- ----------------- ----------------------
1
EXHIBIT A
Opinion of Xxxxxx X. Xxxx, Vice President and General
Counsel for the Company
The opinion of the Vice President and General Counsel for the Company, to
be delivered pursuant to Section VI(b) of the document dated __________, 1999,
and entitled GATX Capital Corporation Underwriting Agreement Standard Provisions
(Debt Securities) shall be to the effect that:
(i) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership and leasing of its properties
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(ii) Each Significant Subsidiary has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership or leasing of its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(iii) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(iv) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Offered Securities will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, considered as one enterprise, or,
to the best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval or authorization of any governmental body
or agency is required for the performance by the Company of its obligations
under the Underwriting Agreement, the Indenture and the Offered Securities,
except such as are specified and have been obtained and such as may be required
by the Securities Act, the Exchange Act, the Trust Indenture Act or the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities.
(v) To the best of such counsel's knowledge, after due inquiry, there are
no legal governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus, as amended or supplemented, and
is not so described, or of any statute, regulation, contract or other document
that is required to be described in the Registration Statement or the
Prospectus, as amended or supplemented, or to be filed as an exhibit to the
Registration
2
Statement or the Prospectus, as amended or supplemented, or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required.
(vi) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(vii) The Offered Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters [or by institutional investors, if any, pursuant to Delayed
Delivery Contracts], will be valid and binding obligations of the Company in
accordance with their terms.
(viii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
[(ix) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.]
(x) The statements in the Prospectus under the captions "Description of
Debt Securities" and "Description of the [Offered Securities]" and the
statements in the Prospectus incorporated by reference from Item 3 of the
Company's most recent annual report on Form 10-K, insofar as such statements
constitute summaries of the documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters, documents
and proceedings, and fairly summarize the matters referred to therein.
(xi) Such counsel (1) is of the opinion that each document, if any, filed
pursuant to the Exchange Act (except as to financial statements and schedules,
as to which such counsel need not express any opinion) and incorporated by
reference in the Prospectus complied when so filed as to form in all material
respects with such Act and the rules and regulations thereunder, (2) believes
that (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) each part of the registration statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations thereunder and
(4) believes that (except as to financial statements and schedules and the
Statement of Eligibility and Qualification of the Trustee on Form T-1, as to
which such counsel need not express any belief) the Registration Statement and
the Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that his opinion and belief is based upon his participation in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and upon review and discussion of the contents thereof,
but is without independent check or verification except as otherwise specified,
including without limitation, the independent check or verification of the
mathematical computations contained in the
3
Registration Statement and the Prospectus, and provided further, that such
counsel need not express any opinion as to the information included under the
heading, if any, in the Registration Statement, Prospectus, or any amendments or
supplements thereto, "Certain United States Federal Tax Consequences." With
respect to clause (4), such counsel may state its opinion in the negative.
In rendering such opinion, such counsel may qualify any opinion as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the States of New York and
California and the federal law of the United States, upon opinions of other
counsel (copies of which shall be delivered to each Underwriter), who shall be
counsel satisfactory to the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, he has relied, to the extent
he deems proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
1
EXHIBIT B
Opinion of Counsel for the Underwriters
The opinion of ____________, counsel for the Underwriters, to be delivered
pursuant to Section VI(c) of the document dated __________, 1999, and entitled
GATX Capital Corporation Underwriting Agreement Standard Provisions (Debt) shall
be to the effect that:
(i) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company in
accordance with its terms and has been duly qualified under the Trust Indenture
Act.
(ii) The Offered Securities, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant to Delayed Delivery
Contracts, will be valid and binding obligations of the Company.
(iii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and are valid and binding agreements of
the Company in accordance with their respective terms.
(v) The statements in the Prospectus under the captions "Description of
Debt Securities," "Description of the [Offered Securities]" and ["Underwriting"]
insofar as such statements constitute summaries of the documents referred to
therein, fairly present the information called for with respect to such
documents.
(vi) Such counsel (1) is of the opinion that the Registration Statement
and Prospectus, as amended or supplemented, if applicable (except as to
financial statements and schedules and the Statement of Eligibility and
Qualification of the Trustee on Form T-1, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations thereunder and (2)
believes that (except as to financial statements and schedules and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) the Registration Statement and the
Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that such
counsel may state that its belief is based upon its participation in the
preparation of the Registration Statement and the Prospectus and any amendments
or supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof (including documents
incorporated by reference therein), but is without independent check or
verification except as specified.
