EXHIBIT 4.2
GATX FINANCIAL CORPORATION
SUPPLEMENTAL INDENTURE NO. 1
$165,265,000 6.273% Senior Notes due 2011
THIS SUPPLEMENTAL INDENTURE NO. 1, dated as of June 22, 2004 (this
"Supplemental Indenture"), between GATX FINANCIAL CORPORATION, a Delaware
corporation (the "Company"), and JPMORGAN CHASE BANK, as trustee (the
"Trustee").
RECITALS OF THE COMPANY:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture (the "Base Indenture"), dated as of November 1, 2003 (as
supplemented by this Supplemental Indenture, the "Indenture"), providing for the
issuance from time to time of one or more series of Securities;
WHEREAS, Section 9.1(e) of the Base Indenture provides that the Company
and the Trustee may, without the consent of any Holders of Securities, enter
into an indenture supplemental to the Base Indenture to establish the form or
terms of Securities of any series as permitted by Sections 2.1 and 3.1 of the
Base Indenture;
WHEREAS, the Company has duly authorized the execution and delivery of
this Supplemental Indenture to provide for the issuance of $165,265,000
principal amount of its 6.273% Senior Notes due 2011 (the "Initial Notes" and,
together with any Exchange Notes (as defined below) issued therefor and any Add
On Notes (as defined below) (or any Exchange Notes issued therefor), in each
case as provided for herein, the "Notes"); and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture; all the conditions and requirements necessary to
make this Supplemental Indenture, when duly executed and delivered, a valid and
binding agreement in accordance with its terms and for the purposes herein
expressed, have been performed and fulfilled; and the execution and delivery of
this Supplemental Indenture have been duly authorized in all respects.
NOW THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the issuance of the series
of Securities provided for herein, the Company and the Trustee mutually covenant
and agree as follows:
ARTICLE ONE
RELATION TO THE BASE INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to the Base Indenture. This Supplemental Indenture
constitutes an integral part of the Base Indenture.
SECTION 1.2 Definitions. For all purposes of this Supplemental
Indenture, the following terms shall have the respective meanings set forth in
this Section 1.2.
"Add On Notes" has the meaning set forth in Section 2.2.
"Adjusted Treasury Rate" has the meaning set forth in Section
2.3(e).
"Base Indenture" has the meaning set forth in the recitals
hereto.
"Business Day" has the meaning set forth in Section 2.3(e).
"Company" has the meaning set forth in the introductory
paragraph hereof.
"Comparable Treasury Issue" has the meaning set forth in
Section 2.3(e).
"Comparable Treasury Price" has the meaning set forth in
Section 2.3(e).
"Dealer Managers" means Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc., Banc of America Securities LLC, Calyon
Securities (USA) Inc., Xxxxxx Xxxxxxx Corp. and Xxxxx Xxxxxxx & Co.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Act" has the meaning set forth in Section 2.3(a).
"Exchange Notes" means the Notes issued in a Registered
Exchange Offer for a like principal amount of Initial Notes, Add-On
Notes and replacement Notes issued therefor in accordance with the
Indenture.
"Global Notes" has the meaning set forth in Section 2.4(a).
"Indenture" has the meaning set forth in the recitals hereto.
"Initial Notes" has the meaning set forth in the recitals
hereto.
"Institutional Accredited Investor" or "IAI" means an
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Issue Date" means June 22, 2004.
"Maturity Date" has the meaning set forth in Section 2.3(b).
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" has the meaning set forth in the recitals hereto, and
means any Notes authenticated and delivered pursuant to the Indenture.
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"144A Global Note" means a permanent global note in registered
form representing the Notes issued to Qualified Institutional Buyers on
the Issue Date or transferred to Qualified Institutional Buyers in
reliance on Rule 144A.
"Participant" means members of, or participants in, the
Depositary.
"Physical Notes" has the meaning set forth in Section 2.4(d).
"Private Placement Legend" means the legend in the form set
forth in Exhibit B initially set forth on the Notes.
"Qualified Institutional Buyer" or "QIB" has the meaning
specified in Rule 144 A.
"Quotation Agent" has the meaning set forth in Section 2.3(e).
"Reference Treasury Dealer" has the meaning set forth in
Section 2.3(e).
"Reference Treasury Dealer Quotations" has the meaning set
forth in Section 2.3(e).
"Registered Exchange Offer" means the offer that may be made
by the Company pursuant to the Registration Agreement to exchange Notes
bearing the Private Placement Legend for the Exchange Notes.
"Registration Agreement" means the Registration Rights
Agreement dated as of June 22, 2004, among the Company and the Dealer
Managers.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the Notes sold in reliance on Regulation
S.
"Restricted Note" means a Note that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities
Act; provided, however, that the Trustee shall be entitled to request
and conclusively rely on an Opinion of Counsel with respect to whether
any Note constitutes a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Supplemental Indenture" has the meaning set forth in the
introductory paragraph hereof.
"Trustee" has the meaning set forth in the introductory
paragraph hereof.
SECTION 1.3 Rules of Construction. For all purposes of this
Supplemental Indenture, except as expressly provided or unless the context
otherwise requires:
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(a) capitalized terms used herein without definition shall
have the meanings specified in the Base Indenture;
(b) all references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture;
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Supplemental Indenture as a whole
and not to any particular Article, Section or other subdivision; and
(d) in the event of a conflict with the definition of terms in
the Base Indenture, the definitions in this Supplemental Indenture
shall control.
ARTICLE TWO
THE NOTES
SECTION 2.1 Title of the Notes. The title of the series of Securities
designated hereby is the "6.273% Senior Notes due 2011".
SECTION 2.2 Limitation on Aggregate Principal Amount. The Notes are
initially limited in aggregate principal amount to $165,265,000, except for such
Notes authorized and delivered upon registration of transfer of, or in exchange
for, or in lieu of other notes, pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7
of the Base Indenture. The Company may, from time to time, without the consent
of Holders of the Notes, issue notes ("Add On Notes") under the Indenture in
addition, and with identical terms, to the $165,265,000 aggregate principal
amount of Notes (other than issue date, issue price and the amount of the first
payment of interest). Any such additional notes and the Notes will be treated as
a single series for purposes of the Indenture.
SECTION 2.3 Terms of the Notes.
(a) The Global Notes may be exchanged for Notes in
certificated form only if (i) the Depositary or any other designated
replacement depositary is at any time unwilling or unable to continue
as depositary or ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and a
successor depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 calendar days, (ii) at
any time the Company in its sole discretion determines not to have the
Notes represented by the Global Notes or (iii) an Event of Default has
occurred and is continuing with respect to the Notes.
(b) The principal of the Notes is payable on June 15, 2011
(the "Maturity Date").
(c) The Notes shall bear interest at an annual rate of 6.273%
from June 22, 2004, or from the most recent date on which interest has
been paid or provided for, payable semi-annually on June 15 and
December 15 of each year commencing December 15, 2004, until the
principal of such Notes is paid or made available for payment. The
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interest so payable will be paid to the person in whose name the Notes
are registered at the close of business on the preceding June 1 or
December 1, respectively; provided, however, that interest payable on
the Maturity Date, or, if applicable, upon redemption, will be payable
to the Person to whom the principal of the Notes shall be payable. If
the date on which interest is payable is not a Business Day, the
interest will be paid on the next following Business Day.
(d) Payment of the principal of (and premium, if any, on) and
any such interest on the Notes will be made at the office or agency of
the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
JPMorgan Chase Bank is appointed as the Trustee and Paying Agent for
the Notes to perform the functions set forth in the Indenture to be
performed by such offices.
(e) The Notes are redeemable at the option of the Company, in
whole or in part at any time and from time to time, at a Redemption
Price equal to the greater of:
- 100% of the principal amount of the Notes to be redeemed;
or
- the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes (exclusive of
interest accrued to the Redemption Date) discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate
plus 30 basis points,
plus, in each case, accrued and unpaid interest on the principal amount being
redeemed to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the Redemption Date.
"Business Day" means any day other than a Saturday or Sunday and other
than a day on which banking institutions in Chicago, Illinois or New York, New
York, are authorized or obligated by law or executive order to close.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be used, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes.
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"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the Reference Treasury Dealer Quotations for that Redemption
Date.
"Quotation Agent" means one of the Reference Treasury Dealers appointed
by the Company.
"Reference Treasury Dealer" means each of Citigroup Global Markets Inc.
and Deutsche Bank Securities Inc. and their respective successors; provided,
however, that if either of the foregoing or their successors shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute for it another nationally recognized
investment bank that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Quotation Agent at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
(f) The Notes are not subject to a sinking fund.
(g) The Notes shall be issued in denominations of $1,000 and
integral multiples of $1,000.
(h) The entire principal amount of the Notes shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 of the Indenture.
(i) Additional Amounts will not be payable to the Holders of
the Notes.
(j) The Notes shall have such other terms and provisions as
are provided in the form thereof set forth in Exhibit A hereto, which
terms and provisions are hereby expressly made a part of the Indenture
and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Supplemental Indenture expressly agree
to such terms and provisions and to be bound thereby. Except as
otherwise expressly permitted by the Indenture, all Notes shall be
identical in all respects. Notwithstanding any differences among them,
all Notes issued under the Indenture shall vote and consent together on
all matters as one class.
(k) Under certain circumstances, the Company may be obligated
to pay additional interest to Holders of Notes, all as and to the
extent set forth in the Registration Agreement and any registration
rights agreement applicable to Add On Notes. The terms thereof are
incorporated herein by reference and such additional interest is deemed
to be interest for purposes of the Indenture.
SECTION 2.4 Form and Dating.
(a) The Notes shall be issued initially in the form of one or more
permanent global notes ("Global Notes") in definitive, fully registered form
without interest coupons in substantially the form of Exhibit A, which shall be
deposited on behalf of the purchasers of the
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Notes represented thereby with the Trustee, at its principal corporate trust
office in New York City, as custodian for the Depositary, and registered in the
name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee in the limited circumstances hereinafter provided.
(b) The Notes may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company).
(c) Each Note shall be dated the date of its authentication.
(d) Except as provided in Section 2.3(a) or in connection with
transfers to IAIs (who must receive Physical Notes) in accordance with Section
2.5, owners of beneficial interests in Global Notes will not be entitled to
receive physical delivery of certificated Notes (the "Physical Notes").
SECTION 2.5 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Security to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Security Registrar shall register the transfer of any
Restricted Security, whether or not such Restricted Security bears the
Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Restricted Security, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date, or (y) (1) in
the case of a transfer to an Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Security Registrar a certificate substantially in the
form of Exhibit C hereto and any legal opinions and certifications
required thereby and (2) in the case of a transfer to a Non-U.S.
Person, the proposed transferor has delivered to the Security Registrar
a certificate substantially in the form of Exhibit D hereto;
(ii) if the proposed transferee is a Participant and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the Regulation S Global Note, upon
receipt by the Security Registrar of the Physical Security and (x)
written instructions given in accordance with the Depositary's and the
Security Registrar's procedures and (y) a certificate, if required,
substantially in the form of Exhibit D hereto, the Security Registrar
shall (A) register the transfer and reflect on its books and records
the date and an increase in the principal amount of the Regulation S
Global Note in an amount equal to the principal amount of Physical
Notes to be transferred and (B) cancel the Physical Notes so
transferred;
(iii) if the proposed transferee is an IAI and the Notes to be
transferred consist of
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Physical Notes which after transfer are to be evidenced by a Physical
Note, upon receipt by the Security Registrar of the Physical Security
and (x) written instructions given in accordance with the Depositary's
and the Security Registrar's procedures and (y) a certificate, if
required, substantially in the form of Exhibit C hereto, the Security
Registrar shall (A) register the transfer and reflect on its books and
records the date, (B) authenticate and deliver to the transferee IAI a
Physical Note in an amount equal to the principal amount of Physical
Notes to be transferred and (C) cancel the Physical Notes so
transferred;
(iv) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Note which after transfer is to be
evidenced by an interest in the Regulation S Global Note, upon receipt
by the Security Registrar of (x) written instructions given in
accordance with the Depositary's and the Security Registrar's
procedures and (y) a certificate, if required, substantially in the
form of Exhibit D hereto, the Security Registrar shall register the
transfer and reflect on its books and records the date and a decrease
in the principal amount of the Global Note from which such interests
are to be transferred in an amount equal to the principal amount of the
Notes to be transferred and an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
the Notes to be transferred; and
(v) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Note which after transfer is to be
evidenced by a Physical Note issued to an IAI, upon receipt by the
Security Registrar of (x) written instructions given in accordance with
the Depositary's and the Security Registrar's procedures and (y) a
certificate, if required, substantially in the form of Exhibit C
hereto, the Security Registrar shall (A) register the transfer and
reflect on its books and records the date and a decrease in the
principal amount of the Global Note from which such interests are to be
transferred in an amount equal to the principal amount of the Notes to
be transferred and (B) authenticate and deliver to the transferee IAI a
Physical Note in an amount equal to the principal amount of Notes to be
transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Security Registrar shall register the transfer of any
Restricted Security, whether or not such Restricted Security bears the
Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Restricted Security, or portion thereof, at any time
on or prior to the second anniversary of the Issue Date, or (y) such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of the Restricted Security stating, or has
otherwise advised the Company and the Security Registrar in writing,
that the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for on
the form of Note stating, or has otherwise advised the Company and the
Security Registrar in writing, that it is purchasing the Note for its
own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of
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Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the 144A Global Note, upon receipt by
the Security Registrar of the Physical Security and written
instructions given in accordance with the Depositary's and the Security
Registrar's procedures, the Security Registrar shall (A) register the
transfer and reflect on its book and records the date and an increase
in the principal amount of the 144A Global Note in an amount equal to
the principal amount of Physical Notes to be transferred, and (B)
cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the Regulation S Global Note, upon receipt by
the Security Registrar of written instructions given in accordance with
the Depositary's and the Security Registrar's procedures, the Security
Registrar shall register the transfer and reflect on its books and
records the date and a decrease in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
the Notes to be transferred and an increase in the principal amount of
the 144A Global Note in an amount equal to the principal amount of the
Notes to be transferred.
(c) Exchange Offer. Upon the occurrence of the Registered Exchange
Offer in accordance with the Registration Agreement, the Company shall issue
and, upon receipt of a Company Order in accordance with the terms of the
Indenture, the Trustee shall authenticate one or more Global Notes not bearing
the Private Placement Legend in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Global Notes tendered for
acceptance in accordance with the Registered Exchange Offer and accepted for
exchange in the Registered Exchange Offer.
(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Security
Registrar or co-Security Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Security Registrar or co-Security
Registrar shall deliver only Notes that bear the Private Placement Legend unless
(i) there is delivered to the Trustee an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (ii) such
Security has been offered and sold (including pursuant to the Registered
Exchange Offer) pursuant to an effective registration statement under the
Securities Act.
(e) General. (i) By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in the Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in the
Indenture.
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(ii) The Security Registrar shall retain copies of all
letters, notices and other written communications received pursuant to
this Section 2.5(e). The Company shall have the right to inspect and
make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.
(iii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under the Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between
or among Participants or beneficial owners of interests in any Global
Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, the Indenture, and to
examine the same to determine substantial compliance as to form with
the express requirements hereof.
(iv) The Trustee shall have no responsibility for the actions
or omissions of the Depositary, or the accuracy of the books and
records of the Depositary.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 Ratification. The Base Indenture, as supplemented by this
Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2 Exchange Notes. Without the consent of any Holders of the
Notes, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may amend or modify the Indenture to provide for
the issuance of the Exchange Notes.
SECTION 3.3 Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 3.4 Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
GATX FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK,
as Trustee
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
Form of Senior Notes due 2011
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST THEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED
TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
A-1
No. ______ $______________
CUSIP ___________
GATX FINANCIAL CORPORATION
6.273% SENIOR NOTE DUE 2011
GATX Financial Corporation, a Delaware Corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to CEDE & CO., the principal sum of _______________________ Dollars
($____________) on June 15, 2011 (the "Maturity Date"), and to pay interest
thereon from June 22, 2004 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for semi-annually on June 15 and
December 15 in each year commencing December 15, 2004, at the rate of 6.273% per
annum until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Security is registered
at the close of business on the June 1 or the December 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest payable on the Maturity Date, or, if
applicable, upon redemption, will be payable to the Person to whom the principal
hereof shall be payable; provided further that, if such Interest Payment Date
would fall on a day that is not a Business Day, such Interest Payment Date shall
be the following day that is a Business Day.
Payment of the principal of (and premium, if any, on) and any such
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in New York, New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture referred to on the
reverse hereof, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June 22, 2004 GATX Financial Corporation
(SEAL) By:________________________
Attest:
By:______________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
JPMorgan Chase Bank, as Trustee
By:___________________________
Authorized Signatory
A-3
GATX FINANCIAL CORPORATION
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of November 1, 2003, as supplemented by a
supplemental indenture dated as of June 22, 2004 (herein called the
"Indenture"), between the Company and JPMorgan Chase Bank, as trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$165,265,000.
The Securities are redeemable at the option of the Company, in whole or
in part at any time and from time to time, at a Redemption Price equal to the
greater of
- 100% of the principal amount of such Securities to be redeemed; or
- the sum of the present values of the remaining scheduled payments
of principal and interest on the Securities (exclusive of interest
accrued to the Redemption Date) discounted to the Redemption Date
on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate plus 30 basis
points,
plus, in each case, accrued and unpaid interest on the principal amount being
redeemed to the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the Redemption Date.
"Business Day" means any day other than a Saturday or Sunday and other
than a day on which banking institutions in Chicago, Illinois or New York, New
York, are authorized or obligated by law or executive order to close.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be redeemed that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of the Reference Treasury Dealer Quotations for that Redemption
Date.
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"Quotation Agent" means one of the Reference Treasury Dealers appointed
by the Company.
"Reference Treasury Dealer" means each of Citigroup Global Markets Inc.
and Deutsche Bank Securities Inc. and their respective successors; provided,
however, that if either of the foregoing or their successors shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute for it another nationally recognized
investment bank that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Quotation Agent at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
[THE FOLLOWING TWO PARAGRAPHS SHOULD BE INCLUDED ONLY IN A RESTRICTED
SECURITY]
The holder of this Security is entitled to the benefits of the
Registration Rights Agreement, dated as of June 22, 2004, by and among the
Company and Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Banc
of America Securities LLC, Calyon Securities (USA) Inc., Xxxxxx Xxxxxxx Corp.
and Xxxxx Xxxxxxx & Co. (the "Registration Rights Agreement"). If (1) the
Exchange Offer Registration Statement (as defined in the Registration Rights
Agreement) is not filed with the Commission on or prior to the date which is 90
days following the Issue Date, (2) the Exchange Offer Registration Statement is
not declared effective by the Commission within 150 days after the Issue Date,
(3) neither the Registered Exchange Offer (as defined in the Registration Rights
Agreement) is completed nor the Shelf Registration Statement (as defined in the
Registration Rights Agreement) has been declared effective by the Commission
within 180 days after the Issue Date, (4) the Shelf Registration Statement is
not declared effective by the Commission on or prior to the date specified in
the Registration Rights Agreement, (5) the Exchange Offer Registration Statement
has been declared effective by the Commission but ceases to be effective or
usable prior to the consummation of the Registered Exchange Offer, (6) the Shelf
Registration Statement, if applicable, has been declared effective but ceases to
be effective or usable for a period of time that exceeds 60 days in the
aggregate in any 12-month period in which it is required to be effective or
usable under the Registration Rights Agreement (each such event referred to in
clauses (1) through (6), a Registration Default"), the Company shall be
obligated to pay additional interest ("Additional Interest") to each Holder of
the Securities affected thereby, during the period of one or more such
Registration Defaults, at a rate of 0.25% per annum for the 90-day period
immediately following the occurrence of a Registration Default, increased by an
additional 0.25% per annum thereafter (up to a maximum of 0.50% per annum), on
the applicable principal amount of Securities held by such holder until all
Registration Defaults have been cured. At any time that all Registration
Defaults have been cured, the accrual of Additional Interest will cease.
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The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the Additional Interest due on the Securities by
depositing with the Paying Agent (which may not be the Company for these
purposes), in trust, for the benefit of the holders thereof, on the next
applicable Interest Payment Date specified by the Indenture and the Securities,
sums sufficient to pay the Additional Interest then due. The Additional Interest
due shall be payable on each applicable Interest Payment Date specified by the
Indenture and the Securities to the record holder entitled to receive the
interest payment to be made on such date. Each obligation to pay Additional
Interest shall be deemed to accrue from and including the date of the applicable
Registration Default.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of all the Holders of all Securities of such
series, to waive certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
"Global Security" and "Global Securities" means a Security or
Securities evidencing all or part of a series of Securities, issued to the
Depositary (as hereinafter defined) for such series or its nominee, and
registered in the name of such Depositary or its nominee. "Depositary" means,
with respect to the Securities of any series issuable or issued in whole or in
part in the form of one or more Global Securities, the person designated as the
Depositary by the Company.
No holder of any beneficial interest in this Security held on its
behalf by a Depositary or a nominee of such Depositary shall have any rights
under the Indenture with respect to such Global Security, and such Depositary or
nominee may be treated by the Company, the Trustee, and any agent of the Company
or the Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
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Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
This Security is exchangeable, in whole but not in part, for Securities
registered in the names of Persons other than the Depositary or its nominee or
in the name of a successor to the Depositary or a nominee of such successor
depositary only if (i) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for this Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, in either case, a successor depositary is
not appointed by the Company within 90 days, (ii) the Company in its discretion
at any time determines not to have all of the Securities of this series
represented by one or more Global Security or Securities and notifies the
Trustee thereof, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities of this series. If this Security is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for Securities
issuable in authorized denominations and registered in such names as the
Depositary holding this Security shall direct. Subject to the foregoing, this
Security is not exchangeable, except for a Security or Securities of the same
aggregate denominations to be registered in the name of such Depositary or its
nominee or in the name of a successor to the Depositary or a nominee of such
successor depositary.
No recourse shall be had for the payment of the principal of (and
premium, if any, on) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
All capitalized terms used in this Security and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
This Security, including without limitation the obligation of the
Company contained herein to pay the principal of (and premium, if any, on) and
interest on this Security in accordance with the terms hereof and of the
Indenture, shall be construed in accordance with and governed by the laws of the
State of New York.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Your Signature: ______________________________________________________
(Sign exactly as your name appears on the other side of
this Security)
Date: ________________________________
Medallion Signature Guarantee: _____________________________________
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[FOR INCLUSION ONLY IF THIS SECURITY BEARS A RESTRICTED SECURITIES LEGEND]
Transfer Certificate
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the date following the second anniversary of the original
issuance of this Security, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) [ ] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3), or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) [ ] outside the United States to a "foreign purchaser" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(5) [ ] pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6) [ ] pursuant to an effective registration statement under the Securities
Act; or
(7) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act;
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any person
other than the registered
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Holder thereof; provided, however, that if box (3), (4), (5) or (7) is checked,
the Company or the Trustee may require, prior to registering any such transfer
of the Securities, in their sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.5 of Supplemental Indenture No. 1
to the Indenture dated June 22, 2004 shall have been satisfied.
Dated: ________________ Signed: _______________________
(Sign exactly as name appears on the
other side of this Security)
Signature
Guarantee: ____________________________________________________________
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _________________
_______________________________________________
NOTICE: To be executed by an executive officer
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EXHIBIT B
FORM OF PRIVATE PLACEMENT LEGEND
Each Global Note and Physical Note that constitutes a Restricted Security or is
sold in compliance with Regulation S shall bear the following legend on the face
thereof until after the second anniversary of the Issue Date, unless otherwise
agreed by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUE HEREOF (OR ANY PREDECESSOR SECURITY HEREOF) OR (Y) BY ANY HOLDER THAT WAS
AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER,
IN EITHER CASE OTHER THAN (1) TO THE COMPANY OR A SUBSIDIARY THEREOF, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION
S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, (5) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(7) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
[ ], [ ]
JPMorgan Chase Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of 6.273% Senior Notes due
2011 (the "Notes") of GATX Financial Corporation, a Delaware corporation (the
"Company"), we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture relating to
the Notes (the "Indenture") and the undersigned agrees to be bound by, and not
to resell, pledge or otherwise transfer the Notes except in compliance with,
such restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act"), and all applicable state securities laws.
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes, we will do so only (i) to the Company or any
of its subsidiaries, (ii) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act), (iii) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Notes (the form of which letter can be obtained from the Trustee), (iv) outside
the United States in accordance with Regulation S promulgated under the
Securities Act to non-U.S. persons, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), (vi)
in accordance with another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel if the Company so requests)
or (vii) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of the Notes
from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
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3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
You, the Company, the Trustee and others are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By: _____________________________________________
Authorized Signature
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EXHIBIT D
Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to Regulation S
[ ], [ ]
JPMorgan Chase Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Administration
Re: GATX Financial Corporation (the "Company") 6.273% Senior Notes due 2011
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount
of the Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither we nor any person acting on our behalf
knows that the transaction has been prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
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You, the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: _____________________________________________
Authorized Signature
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