Exhibit 1.2
UNDERWRITING AGREEMENT
[DATE]
GATX Capital Corporation
Four Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
We (the "Manager") understand that GATX Capital Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $ aggregate principal
amount of [Title of Securities] (the "Offered Securities"). Subject to the terms
and conditions set forth herein or incorporated by reference herein, the Company
hereby agrees to sell and the underwriters 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 ___% of their principal amount plus accrued interest, if any, from ___,
199_ to the date of payment and delivery.
Name Principal Amount
--------------------- $
--------------------- $
--------------
Total: $
========
GATX Capital Corporation 2
[The aggregate principal amount of Offered Securities to be purchased by
the several Underwriters may be reduced by the aggregate principal amount of
Offered Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Offered Securities [less any Offered
Securities sold pursuant to delayed delivery contracts)]* upon delivery thereof
at [state location] at 10:00 a.m. (New York time) on [state date], or at such
other time, not later than [state date] as shall be designated by the Managers.
The Offered Securities shall have the following terms:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
[other terms]:
[The commission to be paid to the Underwriters in respect of Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be % of the principal amount thereof.]*
All the provisions contained in the document entitled GATX Capital
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
________ __, 1997, 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
us and in addition have an authorized officer send us no later than [state date
and time] by wire, telex or other written means, the following message:
--------
* To be added only if delayed delivery contracts are contemplated.
GATX Capital Corporation 3
"We have entered into the Underwriting Agreement dated [insert date]
relating to the Offered Securities referred to therein by signing a copy of the
Underwriting Agreement and returning the same or depositing the same in the mail
to you."
Very truly yours,
[Names of Underwriters]
By --------------------------
Name:
Title:
Acting severally on behalf of
themselves and the several
Underwriters named above
Accepted:
GATX CAPITAL CORPORATION
By ----------------------------
Name:
Title:
GATX CAPITAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
August __, 1997
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, 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.
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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 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
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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 hereunder or thereunder 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.
(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.
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(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.
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 Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee 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.
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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 certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon delivery to 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 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; (B) suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (C) declaration of a
general moratorium on commercial banking activities in New York by either
federal or New York state authorities; or (D) any outbreak or escalation
of any hostilities or any change in financial markets or any calamity or
crisis that, in the reasonable judgment of the 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
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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.
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
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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
Statement, such Underwriter will resume the solicitation of offers to purchase
Offered Securities or any resale thereof hereunder.
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(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
9
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 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 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.
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(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, 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
11
(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 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.
12
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 been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall 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
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.
13
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.
14
Schedule I
DELAYED DELIVERY CONTRACT
199_
Dear Sirs:
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 , 19__ and Prospectus Supplement dated
, 199_, 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 certified or
official bank check in New York Clearing House funds at the office of
__________, New York, N.Y. at 10:00 a.m. (New York time) on the Delivery Date,
upon delivery to 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
15
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, 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 -----------------------------
16
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 August __, 1997,
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
2
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 or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus, as amended or supplemented, and
is not so described, or of any statute, regulation contract or other document
that is required to be described in the Registration Statement or the
Prospectus, as amended or supplemented, or to be filed as an exhibit to the
Registration Statement or the Prospectus, as amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not described or filed
as required.
(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 documents and
proceedings.
(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
3
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 Registration Statement and the Prospectus.
1
EXHIBIT B
Opinion of Pillsbury Madison & Sutro LLP
Counsel for the Underwriters
The opinion of Pillsbury Madison & Sutro LLP, counsel for the
Underwriters, to be delivered pursuant to Section VI(c) of the document dated
August __, 1997, 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
2
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.
