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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported) December 7, 1994
GENERAL AMERICAN TRANSPORTATION CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
New York 2-54754 36-2827991
<S> <C> <C>
(State or other jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification no.)
500 West Monroe Street, Chicago, Illinois 60661
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code (312) 621-6200
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ITEM 7. (FINANCIAL STATEMENTS AND EXHIBITS)
The following documents are being filed in connection with, and
incorporated by reference into, the Registration Statement on Form S-3 (File No.
33-33073) of General American Transportation Corporation ("GATC"), declared
effective on January 26, 1990 and the Registration Statement on Form S-3 (File
No. 33-52301) of GATC, declared effective on February 25, 1994.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
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<S> <C>
1 -- Underwriting Agreement between GATC and the Underwriters named therein.
4 -- Form of 8 5/8% Note due December 1, 2004.
</TABLE>
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THE
REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
GENERAL AMERICAN
TRANSPORTATION CORPORATION
December 7, 1994 By: /s/ E. PAUL DUNN, JR.
E. Paul Dunn, Jr.
Treasurer
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EXHIBIT 1
CONFORMED COPY
General American Transportation Corporation
$100,000,000
8-5/8% Notes Due 2004
Underwriting Agreement
December 7, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
As Representatives of the several Underwriters
Ladies and Gentlemen:
General American Transportation Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, $100,000,000 principal amount of its 8-5/8% Notes Due December
1, 2004 (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of October 1, 1987, as supplemented pursuant to the First Supplemental
Indenture thereto dated as of May 15, 1988, the Second Supplemental Indenture
thereto dated as of March 15, 1990, and the Third Supplemental Indenture
thereto dated as of June 15, 1990, between the Company and The Chase Manhattan
Bank (National Association), as trustee (the "Trustee").
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 and elsewhere in
this Agreement are defined in paragraph (1) hereof.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement (file number 33-33073) on such Form and a
registration statement on such Form (File Number: 33-52301), including
a basic preliminary prospectus in accordance with Rule 429, which have
each become effective, for the registration under the Act of
$650,000,000 aggregate
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principal amount of debt securities, including the Securities. Such
registration statements, as amended at the date of this Agreement,
meet the requirements set forth in Rule 415(a)(1)(ix) or (x) under the
Act and comply in all other material respects with such Rule. The
Company will file with the Commission pursuant to the applicable
paragraph of Rule 424(b) and Rule 429 under the Act a supplement to
the form of prospectus included in such registration statements
relating to the Securities and the plan of distribution thereof (the
"Prospectus Supplement").
(b) As of the Execution Time, on the Effective Date, when
the Prospectus Supplement is filed in accordance with Rule 424(b) and
on the Closing Date (as hereinafter defined), the Registration
Statement, as amended as of any such time, the Prospectus, as
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules thereunder; (ii) on the Effective Date, the Registration
Statement, as amended as of any such time, did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as
supplemented as of any such time, will 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,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the Prospectus (or any
supplement thereto).
(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or bylaws or in default under any
agreement, indenture or instrument, the effect of which violation or
default would be material to the Company and its subsidiaries taken as
a whole; the execution, delivery and performance of this Agreement and
compliance by the Company with the provisions of the Securities and
the Indenture will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or of any of its subsidiaries pursuant
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to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate
charter or bylaws of the Company or of any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or any of its subsidiaries, the effect
of which violation or default would be material to the Company and its
subsidiaries taken as a whole; and, except as required by the Act, the
Trust Indenture Act, the Exchange Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement and the Indenture.
(d) Except as described in the Registration Statement and
the Prospectus, there has not been any material adverse change in, or
any adverse development which materially affects or will materially
affect the business, properties, condition (financial or other), or
results of operations of the Company and its subsidiaries taken as a
whole since the dates as of which information is given in the
Registration Statement and the Prospectus.
(e) Ernst & Young, whose reports have been incorporated
by reference or included in the Company's most recent Annual Report on
Form 10-K which is incorporated by reference in the Prospectus, are
independent public accountants as required by the Act and the rules
and regulations thereunder.
(f) As of the time the Securities are issued and sold
hereunder (i) the Indenture will have been duly authorized, executed
and delivered by the Company and will constitute a legal, valid and
binding instrument enforceable against the Company in accordance with
its terms, (ii) the Securities will have been duly authorized,
executed, authenticated and, upon payment therefor as provided in this
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, and (iii) the
Indenture conforms and the Securities will conform to the descriptions
thereof contained in the Prospectus.
(g) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing and in good standing under the
laws of the jurisdiction in which it is chartered or organized, is
duly qualified to do business and is in good standing as a foreign
corporation under the laws of each jurisdiction in which its ownership
of property or the conduct of its business requires such
qualification, except where the failure so to qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole, and has power and authority necessary to own or hold its
property and to conduct the business in which it is engaged.
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(h) Except as described in the Prospectus, there is no
material litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries which might result in any material adverse change in the
business, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration
Statement.
(i) The financial statements filed as part of the
Registration Statement or included in the Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will present at all times during the effectiveness of this
Agreement, fairly, the financial condition and results of operations
of the Company and its subsidiaries taken as a whole, at the dates and
for the periods indicated, and have been, and (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will in all material respects be at all times during the
effectiveness of this Agreement, prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved.
(j) The documents incorporated by reference into the
Prospectus have been, and (in the case of any amendment or supplement
to any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which
this representation is being made) will in all material respects be at
all times during the effectiveness of this Agreement, prepared by the
Company in conformity with the applicable requirements of the Act and
the Exchange Act and the respective rules and regulations of the
Commission thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the effectiveness of this Agreement,
timely filed as required thereby.
(k) There are no contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the
Act or by the rules and regulations of the Commission thereunder, or
which were required to be filed as exhibits to any document
incorporated by reference in the Prospectus by the Exchange Act or the
rules and regulations of the Commission thereunder, which have not
been filed as exhibits to the Registration Statement or to such
document or
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incorporated therein by reference as permitted by the rules and
regulations of the Commission under the Act and the Exchange Act as
required.
(l) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective
Date. "Prospectus" shall mean the Basic Prospectus as supplemented by
the Prospectus Supplement. "Registration Statement" shall mean the
registration statements referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time. "Rule 415", "Rule 424", and "Rule 429" refer
to such rules under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus or the Prospectus Supplement, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic
Prospectus or the Prospectus Supplement, as the case may be, deemed to
be incorporated therein by reference.
(m) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Securities and Exchange Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
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2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 99.113% of the principal amount thereof, plus accrued interest on the
Securities from December 1, 1994, to the Closing Date, the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for
the Securities shall be made on the date and at the time and location set forth
on Schedule A hereto, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by Federal fund check or
other immediately available funds. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (except for (i)
periodic or current reports filed under the Exchange Act or (ii) a
supplement relating to an offering of securities other than the
Securities) unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment
or supplement to which either of the Representatives may reasonably
object. Subject to the foregoing sentence, the Company will cause the
Prospectus Supplement to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will
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promptly advise the Representatives (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission
for any amendment of the Registration Statement or amendment of or
supplement to the Prospectus or for any additional information, (iv)
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 (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the 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 and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a Prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus, as then supplemented, would
include any 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 under which they were made, not misleading, or if
it shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company will promptly (i)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any such amended or supplemented Prospectus to the
Representatives in such quantities as they may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto), and each
amendment to the Registration Statement (including solely in the case
of the Representatives, when filed with the Commission, all documents
incorporated by reference therein) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
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(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) The Company shall, whether or not any sale of the
Securities is consummated, pay all expenses incident to the
performance of its obligations under this Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging
and delivering the Securities, the fees and disbursements, including
fees of counsel, incurred in compliance with Section 5(e), the fees
and disbursements of the Trustee and the fees of any agency that rates
the Securities.
(g) The Company will not, from the date hereof to and
including the Closing Date, without prior written consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the
Securities or any debt securities issued or guaranteed by the Company
with maturities of less than 270 days).
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus and any
such supplement shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the
Representatives the opinion or opinions of the assistant general
counsel of the Company or other counsel to the Company acceptable to
the Representatives, dated the Closing Date, to the effect that:
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(i) each of the Company and its subsidiaries
(excluding subsidiaries which, considered in the aggregate,
would not constitute a "significant subsidiary" under
Commission Regulation S-X) has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases properties or conducts material business, except
where the failure so to qualify would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) the Company's authorized equity capitalization is as
set forth in the Prospectus;
(iii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(iv) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of or constitute a default
under, the Articles of Incorporation or bylaws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or by which any of them are bound that
is material to the Company and its subsidiaries as a whole, or
any order or regulation known to such counsel to be applicable
to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries (except that such counsel need not express any
opinion on any order or regulation which does not materially
affect the validity of the Securities);
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding before
any court or governmental agency, authority or
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body or any arbitration involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Prospectus, and there is no contract or other document of
a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any
legal proceedings or material contracts or agreements relating
to the Company or any of its subsidiaries fairly summarize
such matters;
(vi) the Registration Statement and any amendments
thereto have become effective under the Act; any required
filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within
the time period prescribed by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; and
no facts have come to the attention of such counsel which
cause him to believe that at the Effective Date or the Closing
Date the Registration Statement (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; and
(vii) this Agreement has been duly authorized,
executed and delivered by the Company.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto at
the date such opinion is rendered.
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(c) The Company shall have furnished to the
Representatives the opinion of Mayer, Brown & Platt, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Securities have been duly
authorized and, when the terms and forms thereof have been
established and the Securities have been executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the
Representatives, the Securities will constitute legal, valid
and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); and the Indenture conforms and the
Securities will conform to the descriptions thereof in the
Prospectus;
(ii) the Registration Statement and any amendments
thereto have become effective under the Act; any required
filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within
the time period prescribed by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus
(other than material incorporated by reference therein and the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and no facts have
come to the attention of such counsel which cause them to
believe that at the Effective Date or the Closing Date the
Registration Statement (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion)
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus
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(other than the financial statements and other financial and
statistical information contained therein as to which such
counsel need express no opinion) includes any untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (c) include any supplements thereto at
the date such opinion is rendered.
(d) The Representatives shall have received from Winston
& Strawn, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Prospectus
and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the President
or any Vice President (in the financial area) and the principal
financial or accounting officer or the Treasurer of the Company, dated
the Closing Date, to the effect that the signers of such certificate
have examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate with the
same effect as if made on the date of such certificate and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied as a
condition of the obligation of the Underwriters to purchase
the Securities;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the business, properties, condition
(financial or other), results of operations or, to the best of
their knowledge, the prospects of the
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Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus.
(f) At the Closing Date, Ernst & Young shall have
furnished to the Representatives a letter or letters, dated as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders and directors of the Company
and standing committees thereof; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
13
<PAGE> 14
(2) with respect to the period
subsequent to the date of the most recent financial
statements (other than any capsule information),
audited or unaudited, in or incorporated in the
Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five
business days prior to the date of the letter, in the
advances to, investments in or receivables from
related parties, or in the capital stock or long-term
debt of the Company and its subsidiaries or any
decreases in the stockholders' equity of the Company
or consolidated net current assets or net assets as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Prospectus to such
specified date there were any decreases, as compared
with the corresponding period in the preceding year
in net operating revenues or in income before income
taxes or in total and net income of the Company and
its subsidiaries, except in all instances for changes
or decreases set forth in such letter; or
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and the
Prospectus do not agree with the amounts set forth in
the unaudited financial statements for the same
periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Registration Statement and the Prospectus in
this paragraph (f) include any amendment thereof or supplement thereto
at the date of the letter.
14
<PAGE> 15
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(f) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the business, properties,
condition (financial or other) or results of operation of the Company
and its subsidiaries taken as a whole, the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or
delivery of the Securities as contemplated by the Registration
Statement and the Prospectus.
(h) Subsequent to the Execution Time and prior to the
Closing Date, there shall not have been any decrease in the rating of
any of the Company's long-term debt securities by Standard & Poor's
Corporation or Moody's Investors Services, Inc. or any notice given of
any intended or potential decrease in any such rating or of any review
of or possible change in any such rating that does not indicate the
direction of the possible change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as either Representative may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at any time at or prior to the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, if any termination pursuant to Section 10 hereof shall occur or in
the case of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses that shall
have been incurred by them (including
15
<PAGE> 16
reasonable fees and disbursements of counsel) in connection with this
Agreement.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity
with respect to the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where (A) such delivery is required by
the Act, (B) the untrue statement or omission of a material fact contained in
the Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented) and (C) if a copy of such Prospectus (or the Prospectus as
supplemented) had been so sent or given, such delivery would have cured the
defect giving rise to the claim asserted by such person. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the
16
<PAGE> 17
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth under the heading
"Underwriters" in the Prospectus constitutes the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements with respect to you are correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel and one separate local counsel for all such indemnified
parties in such action and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall
17
<PAGE> 18
authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and
18
<PAGE> 19
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder 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 Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the 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 9, the Closing Date shall be postponed for such period, not exceeding
five days, as the Representatives 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.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities of the Company or of GATX Corporation, the
Company's corporate parent (the "Parent"), shall have been suspended by the
Commission, trading in the Parent's securities shall have been suspended by the
New York Stock Exchange or the Chicago Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared by either Federal or New York State
authorities, or (iii) there shall have occurred any outbreak or material
escalation of
19
<PAGE> 20
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Representatives, impracticable to
market the Securities.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule A hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 500 West Monroe Street,
Chicago, Illinois 60661-3676, Attention: Treasurer.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
* * * * *
20
<PAGE> 21
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance by each of you shall represent a
binding agreement among the Company and the several Underwriters.
Very truly yours,
General American Transportation
Corporation
By: /s/ E. Paul Dunn, Jr.
--------------------------------
Its: Treasurer
-------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Morgan Stanley & Co. Incorporated
By: /s/ Kim Mayer
------------------------------
Its: Principal
------------------------------
Salomon Brothers Inc
By: /s/ Elaine C. Campbell
------------------------------
Its: Vice President
------------------------------
For themselves and the other
several Underwriters named in
Schedule B to the foregoing
Agreement.
21
<PAGE> 22
SCHEDULE A
<TABLE>
<CAPTION>
Notes Aggregate Principal Amount Interest Rate Final Distribution Date
----- -------------------------- ------------- -----------------------
<S> <C> <C> <C>
8-5/8% $100,000,000 8-5/8% December 1, 2004
Cusip 368
836 AB8
</TABLE>
Closing Date, Time and Location:
December 14, 1994
9:00 a.m. Chicago time
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
Address for notices pursuant to Section 12:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, NY 10020
Attention: May C. Busch
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Attention: Legal Department
22
<PAGE> 23
SCHEDULE B
<TABLE>
<CAPTION>
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
<S> <C>
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . $ 50,000,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
============
</TABLE>
Address for Notice to Underwriters:
Notices to Morgan Stanley & Co. Incorporated shall be directed
to it at 1221 Avenue of the Americas, New York, New York 10020, Attention: May
C. Busch
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, New York 10048, Attention: New Issue
Documentation Department.
<PAGE> 1
EXHIBIT 4
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "Depository") or a nominee of the Depository, this Note is a
global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE
& CO., 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 herein.
No.1 $100,000,000
GENERAL AMERICAN TRANSPORTATION CORPORATION
8-5/8% Note Due December 1, 2004
CUSIP 368836 AB 8
GENERAL AMERICAN TRANSPORTATION CORPORATION, a New York corporation (herein
called the "Company"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of One Hundred Million Dollars
($100,000,000) on December 1, 2004 (the "Maturity Date") at the office or
agency of the Company in the Borough of Manhattan, The City of New York, State
of New York, and such other location or locations as may be provided for
pursuant to the Indenture referred to on the reverse hereof, and to pay
interest, semiannually on June 1 and December 1 of each year and on the
Maturity Date (each an "Interest Payment Date"), commencing on June 1, 1995, on
said principal sum at the rate of 8-5/8% (eight and five-eighths per centum)
per annum from December 1, 1994 until the principal amount hereof becomes due
and payable; provided, however, that any payment of principal or interest to be
made on an Interest Payment Date or on the Maturity Date which is not a
Business Day shall be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or on the Maturity
Date and no additional interest shall accrue as a result of such delayed
payment. The interest so payable, and punctually paid or duly provided for, on
any June 1 or December 1 will be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
May 15 or November 15 (whether or not a Business Day) next preceding such June
1 or December 1, except that the first payment of interest on a Note originally
issued between a regular record date and an Interest Payment Date will be made
on the Interest Payment Date following the next succeeding regular record date
to the registered owner on such regular record date. Payment of the principal
of this Note due at maturity will be paid in immediately available funds to the
registered holder hereof upon presentation of this Note. Payment of interest
on this Note
<PAGE> 2
due on any other Interest Payment Date will be made by check mailed to the
address of the person entitled thereto as such address shall appear on the
books of the office or agency maintained by the Company where the Notes may be
presented for registration of transfer or for exchange. Any interest not
punctually paid or duly provided for shall be payable as provided in the
Indenture.
Except as otherwise provided in Section 2.15 of the Indenture, this Note may
be transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository.
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof and such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by or on
behalf of the Trustee under the Indenture referred to on the reverse hereof.
* * *
-2-
<PAGE> 3
IN WITNESS WHEREOF, General American Transportation Corporation has caused
this instrument to be signed in its name by its duly authorized officers, and
has caused a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
Dated: December 14, 1994 GENERAL AMERICAN
TRANSPORTATION CORPORATION
By ___________________________
Title ________________________
(Corporate Seal)
By ___________________________
Title ________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series described herein and referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank
(National Association), as Trustee
By: ________________________
Authorized Officer
-3-
<PAGE> 4
[REVERSE SIDE OF NOTE]
GENERAL AMERICAN TRANSPORTATION CORPORATION
8-5/8% Note Due December 1, 2004
This Note is one of a duly authorized issue of debentures, notes, bonds or
other obligations of the Company (herein called the "Securities"), of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture, dated as of October 1, 1987, duly executed and delivered by the
Company to The Chase Manhattan Bank (National Association), Trustee
(hereinafter called the "Trustee"), as supplemented by a First Supplemental
Indenture, dated as of May 15, 1988, a Second Supplemental Indenture, dated as
of March 15, 1990, and a Third Supplemental Indenture, dated as of June 15,
1990, each between the Company and the Trustee (as so supplemented, the
"Indenture") to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Securities. The Securities may be issued in one
or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as "8-5/8% Notes Due December 1, 2004" of the Company, limited in
aggregate principal amount to $100,000,000. References herein to "Note" or
"Notes" shall mean the Notes of said 8-5/8% Notes Due December 1, 2004.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
The Notes are not redeemable prior to the Maturity Date and are not subject to
any sinking fund.
In case an Event of Default, as defined in the Indenture, with respect to the
Notes shall have occurred and be continuing, the principal hereof and any
accrued interest hereon may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of the holders of a majority in principal amount of
the Securities at the time outstanding of all series to be affected (with each
series voting as a class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or any supplemental
indenture or modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that no such supplemental
indenture shall (i) change
<PAGE> 5
the maturity of any Security or the principal amount thereof, the rate of or
the time of payment of any interest on any Security, reduce any premium payable
upon the redemption thereof, waive a Default in the payment of the principal of
or interest on any Security, make any Security payable in money other than that
stated therein, make any change in respect of the percentage of Securities of
any series, the consent of the holders of which is required to waive an
existing Default, or impair or affect the right of any holder to bring suit for
the payment thereof, or (ii) reduce the aforesaid percentage of Securities of
any series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holder of each Security
affected. It is also provided in the Indenture that, with respect to certain
Defaults regarding the Securities of any series, the holders of a majority in
aggregate principal amount of the Securities of such series at the time
outstanding may on behalf of the holders of all of the Securities of such
series waive any past Default and its consequences, except a Default in the
payment of the principal of or interest on any of the Securities. Any such
consent or waiver by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and of any Note which may be issued upon the
registration for transfer hereof or in exchange or substitution herefor,
irrespective of whether or not any notation or such consent or waiver is made
upon this Note or such other Note.
No reference herein to the Indenture and no reference to any provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and at the rate
herein prescribed.
The Notes are issuable in registered form without coupons in the minimum
denomination of $1,000 and integral multiples thereof. Notes may be exchanged
by the holder hereof without charge except for any tax or other governmental
charge imposed in connection therewith, for a like aggregate principal amount
of Notes of other authorized denominations in the manner and subject to the
limitations provided in the Indenture at the office or agency to be maintained
by the Company in The City of New York, State of New York, or at such other
location or locations as may be provided for in the Indenture.
Upon due presentment for registration of transfer of this Note at the office
or agency of the Company in The City of New York, State of New York, one or
more new Notes of authorized denominations, for an equal aggregate principal
amount, will be issued to the transferee in exchange therefor subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and the security registrar may deem and
treat the registered holder hereof as the absolute owner of this Note (whether
or not this Note shall be overdue and notwithstanding any notation of ownership
or other writing hereon), for the purpose of receiving payment of, or on
account of, the principal hereof, and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and neither the Company
nor
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<PAGE> 6
the Trustee nor any paying agent nor any security registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on
this Note, 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, director or employee, 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 Note which are defined in the Indenture
shall have the meanings assigned to them therein.
This Note shall be governed and construed in accordance with the laws of the
State of New York.
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<PAGE> 7
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
___________________________________________
___________________________________________
___________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________
| |
|__________________________________________|
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________ attorney to transfer said Note on
the books of the Company, with full power of substitution in the premises.
Dated: _________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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