<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CRANE CO.
(Exact name of registrant as specified in its charter)
DELAWARE 13-1952290
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 FIRST STAMFORD PLACE
STAMFORD, CONNECTICUT 06902
(203) 363-7300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
PAUL R. HUNDT
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
CRANE CO.
100 FIRST STAMFORD PLACE
STAMFORD, CONNECTICUT 06902
(203) 363-7300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
ALAN DEAN, ESQ.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1)(2) FEE
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<S> <C> <C> <C> <C>
Debt Securities . . . . . . $300,000,000 100% $300,000,000 $103,449
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<FN>
(1) Or, if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price of $300,000,000.
(2) Exclusive of accrued interest, if any. Estimated solely for the purpose
of calculating the registration fee.
</TABLE>
--------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
PROSPECTUS (Subject to Completion)
Issued May 19, 1994
$300,000,000
CRANE CO.
DEBT SECURITIES
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Crane Co. (the "Company" or "Crane") may offer from time to time, in one or
more series, senior debt securities (the "Senior Securities") and/or
subordinated debt securities (the "Subordinated Securities"), each of which will
be a direct, unsecured obligation of the Company and offered to the public on
terms determined at the time of sale (the Senior Securities and the Subordinated
Securities being herein referred to collectively as the "Debt Securities"). The
Company may sell Debt Securities for proceeds of up to $300,000,000 directly,
through agents designated from time to time, through dealers or through
underwriters also to be designated. See "Plan of Distribution."
The specific terms of the Debt Securities, including, where applicable, the
designation, aggregate principal amount, denominations, purchase price,
maturity, interest rate (which may be fixed or variable) and time of payment of
interest, if any, any terms for mandatory or optional redemption, any terms for
sinking fund payments, any listing on a securities exchange and any other
specific terms in connection with the sale of the Debt Securities in respect of
which this Prospectus is being delivered are set forth in the accompanying
Prospectus Supplement (the "Prospectus Supplement") and Pricing Supplement, if
any.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
---------------
The date of this Prospectus is May 19, 1994.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THE
INFORMATION CONTAINED HEREIN OR IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF OR THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THEREOF. NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING PROSPECTUS SUPPLEMENT
CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"), all of which may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Chicago
Regional Office, Northwest Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661; and New York Regional Office, Seven World Trade Center, New
York, New York 10048. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. Such material can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, where the Company's Common Stock is listed.
This Prospectus constitutes part of a Registration Statement filed by
the Company with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus and the accompanying Prospectus
Supplement omit certain of the information contained in the Registration
Statement in accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related exhibits for
further information with respect to the Company and the Debt Securities.
Statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, where a copy of such document has
been filed as an exhibit to the Registration Statement or otherwise has been
filed with the Commission, reference is made to the copy so filed. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents previously filed by the Company with the
Commission (File No. 1-1657) are incorporated by reference into this Prospectus.
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993.
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1994.
3. The Company's Current Reports on Form 8-K filed January 12, 1994
(as amended by Form 8-K-A filed January 26, 1994), filed March
31, 1994 (as amended by Form 8-K-A filed May 2, 1994), filed
May 12, 1994 (as amended by Form 8-K-A filed May 12, 1994) and
filed May 18, 1994.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
shall be deemed to be incorporated by reference into this Prospectus from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any Prospectus Supplement or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, including any beneficial owner, upon written or
oral request of such person, a copy of any and all of the documents that have
been or may be incorporated by reference herein (other than exhibits to such
documents which are not specifically incorporated by reference into such
documents). Such requests should be directed to Secretary, Crane Co., 100 First
Stamford Place, Stamford, Connecticut 06902 (telephone (203) 363-7300).
2
<PAGE>
THE COMPANY
The Company is a diversified manufacturer of engineered industrial
products, serving niche markets in aerospace, fluid handling, automatic
merchandising and the construction industry. The Company's Wholesale
Distribution segment serves the building products markets and industrial
customers. The Company's strategy is to maintain a balanced business mix and to
focus on niche businesses where it can obtain a significant market position
building on its strength in special engineered, light-to-medium manufacturing
and distribution, while reducing its reliance on highly capital-intensive and
cyclical businesses.
The Company was reincorporated in the state of Delaware in 1985 as the
successor to an Illinois corporation which traced its origins to 1855. The
Company's principal executive offices are located at 100 First Stamford Place,
Stamford, Connecticut 06902, and its telephone number is (203) 363-7300.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used to repay outstanding
borrowings and for working capital and general corporate purposes, which may
include acquisitions. While the Company regularly evaluates acquisition
candidates and conducts preliminary discussions, the Company is not currently
involved in any negotiations with respect to, and has no agreement or
understanding regarding, any such acquisition.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company for each of the five years ended December 31, 1993 and for the
three months ended March 31, 1994. For the purpose of calculating such ratio,
"earnings" consist of income from continuing operations before income taxes and
fixed charges (excluding capitalized interest). "Fixed charges" consist of
interest expense, one-third of rental expense (which approximates the interest
factor) and capitalized interest.
<TABLE>
<CAPTION>
Three Months
Ended
Year Ended December 31, March 31,
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1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
4.42 5.36 5.04 2.90 5.73 3.70
</TABLE>
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Senior Securities will be issued under an Indenture dated as of
April 1, 1991 (the "Senior Indenture") between the Company and The Bank of New
York, as Trustee (the "Senior Trustee"), and the Subordinated Securities will be
issued under an Indenture (the "Subordinated Indenture") between the Company and
The First National Bank of Chicago, as Trustee (the "Subordinated Trustee").
The Senior Indenture and the form of Subordinated Indenture (collectively the
"Indentures") are filed as exhibits to the Registration Statement and are also
available for inspection at the office of the respective Trustee. The following
statements are subject to the detailed provisions of the Indentures including
the definitions therein of certain terms which are not otherwise defined in this
Prospectus. Section references are to both Indentures unless otherwise
indicated. Wherever particular provisions of the Indentures are referred to,
such provisions are incorporated by reference as part of the statements made and
the statements are qualified in their entirety by such reference. The
Indentures are substantially identical, except for certain covenants of the
Company contained in the Senior Indenture and provisions relating to
subordination contained in the Subordinated Indenture.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provide that the Debt Securities
may be issued from time to time in one or more series. All Senior Securities
will be direct, unsecured and unsubordinated obligations of the Company and will
rank equally with any other unsecured and unsubordinated obligations of the
Company for borrowed money. All Subordinated Securities will be direct,
unsecured obligations of the Company and will be subordinated to the prior
payment in full of all Senior Indebtedness (which term includes the Senior
Securities) of the Company described below under "Provisions Applicable Solely
to Subordinated Securities - Subordination." Except as described under
"Provisions Applicable Solely to Senior Securities," the Indentures do not limit
other indebtedness or securities which may be incurred or issued by the Company
or any of its subsidiaries or contain financial or similar restrictions on the
Company or any of its subsidiaries.
The Company's source of payment of the Debt Securities is revenues from
operations conducted directly by it and cash distributions from its
subsidiaries. Because a substantial majority of the Company's consolidated
assets and a significant portion of its earnings are accounted for by its
subsidiaries, the Company's cash flow and the consequent ability to service its
debt (including the Debt Securities) are dependent upon the earnings of such
subsidiaries and other companies in which the Company has investments and the
distribution of those earnings to the Company. To the extent the Company must
rely on earnings of its subsidiaries and other companies in which it has an
investment to pay amounts owed on the Debt Securities, the Debt Securities will
effectively be subordinated to all liabilities, including trade payables, of the
Company's subsidiaries and such other companies, except to the extent that the
Company's claims as a creditor of such companies may be recognized.
The Prospectus Supplement which accompanies this Prospectus shall set
forth where applicable the following terms of and information relating to the
Debt Securities offered thereby: (i) the designation, classification as Senior
Securities or Subordinated Securities and aggregate principal amount of the Debt
Securities; (ii) the percentage of the principal amount at which such
4
<PAGE>
Debt Securities will be issued; (iii) the date or dates on which principal of,
and premium, if any, on the Debt Securities is payable; (iv) the rate per annum
at which the Debt Securities shall bear interest, if any, or the method by which
such rate shall be determined; (v) the dates from which interest, if any, will
accrue and on which interest will be payable and the related record dates or the
method by which such dates may be determined; (vi) any redemption, repayment or
sinking fund provisions; (vii) if the Debt Securities will be represented in
whole or in part by one or more global notes registered in the name of the
depository or its nominee; (viii) if the amount of payments of principal of or
premium, if any, or interest, if any, on the Debt Securities may be determined
with reference to an index, the manner in which such amount shall be determined;
and (ix) any other specific terms of the Debt Securities. (Section 2.3).
The Debt Securities will be issued only in fully registered form without
coupons and, unless otherwise specified in the accompanying Prospectus
Supplement, in denominations of $1,000 and any multiple thereof.
Unless otherwise specified in the accompanying Prospectus Supplement,
principal and premium, if any, will be payable, and the Debt Securities will be
transferable and exchangeable without any service charge, at the office of the
applicable Trustee. However, the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with any such transfer or exchange. (Section 3.2).
Interest on any series of Debt Securities is to be payable on the
interest payment dates set forth in the accompanying Prospectus Supplement to
the persons in whose names the Debt Securities are registered at the close of
business on the related record date and, unless other arrangements are made,
will be paid by checks mailed to such persons. (Sections 2.7 and 3.1).
If the Debt Securities are being issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below the
stated principal amount, the federal income tax consequences and other special
considerations applicable to such original issue discount securities will be as
described in the Prospectus Supplement.
PROVISIONS APPLICABLE SOLELY TO SENIOR SECURITIES
LIMITATIONS ON LIENS. The Senior Indenture provides that, so long as
any Senior Securities remain outstanding, the Company will not, and will not
permit any Subsidiary (as defined below), to issue, assume or guarantee any
Indebtedness (as defined below) which is secured by a mortgage, pledge, security
interest, lien or encumbrance (each a "lien") upon any assets, whether now owned
or hereafter acquired, of the Company or any such Subsidiary without effectively
providing that the Senior Securities (together with, if the Company shall so
determine, any other Indebtedness of the Company ranking equally with the Senior
Securities) shall be equally and ratably secured by a lien ranking ratably with
or equal to (or at the Company's option prior to) such secured Indebtedness,
except that the foregoing restriction shall not apply to: (a) liens on assets of
any corporation existing at the same time such corporation becomes a Subsidiary;
(b) liens on assets existing at the time of acquisition thereof, or to secure
the payment of the purchase price of such assets, or to secure indebtedness
incurred, assumed or guaranteed by the Company or a Subsidiary for the purpose
of financing the purchase price of such assets
5
<PAGE>
or improvements or construction thereon, which indebtedness is incurred, assumed
or guaranteed prior to, at the time of, or within 360 days after such
acquisition (or in the case of real property, completion of such improvement or
construction or commencement of full operation of such property, whichever is
later); (c) liens securing indebtedness owing by any Subsidiary to the Company
or wholly owned Subsidiary; (d) liens on any assets of a corporation existing at
the time such corporation is merged into or consolidated with the Company or a
Subsidiary or at the time of a purchase, lease or other acquisition of the
assets of a corporation or firm as an entirety or substantially as an entirety
by the Company or a Subsidiary; (e) liens on any assets of the Company or a
Subsidiary in favor of the United States of America or any State thereof, or in
favor of any other country, or political subdivision thereof, to secure certain
payments pursuant to any contract or statute or to secure any indebtedness
incurred or guaranteed for the purpose of financing all or any part of the
purchase price (or, in the case of real property, the cost of construction) of
the assets subject to such liens (including but not limited to, liens incurred
in connection with pollution control, industrial revenue or similar financing);
(f) any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part, of any lien referred to in the foregoing
clauses (a) to (e), inclusive; (g) certain statutory liens or other similar
liens arising in the ordinary course of business of the Company or a Subsidiary,
or certain liens arising out of governmental contracts; (h) certain pledges,
deposits or liens made or arising under worker's compensation or similar
legislation or in certain other circumstances; (i) certain liens in connection
with legal proceedings, including certain liens arising out of judgments or
awards; (j) liens for certain taxes or assessments, landlord's liens and liens
and charges incidental to the conduct of the business, or the ownership of the
assets of the Company or of a Subsidiary, which were not incurred in connection
with the borrowing of money and which do not in the opinion of the Company,
materially impair the use of such assets in the operation of the business of the
Company or such Subsidiary or the value of such assets for the purposes thereof;
or (k) liens not permitted by the foregoing clauses (a) to (j), inclusive, if at
the time of and after giving effect to, the creation or assumption of such lien,
the aggregate amount of all Indebtedness of the Company and its Subsidiaries
secured by all liens not so permitted by the foregoing clauses (a) through (j),
inclusive, together with the Attributable Debt (as defined below) in respect of
Sale and Lease-Back Transactions permitted by paragraph (a) under "Limitation on
Sale and Lease-Back Transactions" below does not exceed 10% of Consolidated Net
Tangible Assets (as defined below). (Section 3.9 of the Senior Indenture).
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Senior Indenture
provides that the Company will not, and will not permit any Subsidiary to, enter
into any arrangement with any person providing for the leasing by the Company or
a Subsidiary of any property or assets, other than any such arrangement
involving a lease for a term, including renewal rights, for not more than three
years, whereby such property or asset has been or is to be sold or transferred
by the Company or a Subsidiary to such person (a "Sale and Lease-Back
Transaction") unless (a) the Company or such Subsidiary would, at the time of
entering into a Sale and Lease-Back Transaction, be entitled to incur
Indebtedness secured by a lien on the property or assets to be leased in an
amount at least equal to the Attributable Debt in respect of such transaction
without equally and ratably securing the Senior Securities pursuant to the
provisions described under "Limitations on Liens" above or (b) the proceeds of
the sale of the property or assets to be leased are at least equal to their fair
market value and an amount equal to the proceeds are applied, within 90 days of
the effective date of such transaction, to the purchase or acquisition (or, in
the case of real property, the construction) of property or assets or to the
retirement (other than at
6
<PAGE>
maturity or pursuant to a mandatory sinking fund or redemption provision) of
Senior Securities or of Funded Indebtedness (as defined below) of the Company or
a consolidated Subsidiary ranking on a parity with or senior to the Senior
Securities. (Section 3.10 of the Senior Indenture).
DEFINITIONS. "Attributable Debt" means in connection with a sale and
lease-back transaction the aggregate of present values (discounted at a rate per
annum equal to the average interest borne by all outstanding Senior Securities
determined on a weighted average basis and compounded semi-annually) of the
obligations of the Company or any Subsidiary for rental payments during the
remaining term of the applicable lease (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of the
Company and the Subsidiaries as of the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles, less all
current liabilities as shown on such balance sheet and intangible assets (as
defined below).
"Funded Indebtedness" means any Indebtedness maturing by its terms more
than one year from the date of the determination thereof, including any
Indebtedness renewable or extendable at the option of the obligor to a date
later than one year from the date of the determination thereof.
"Indebtedness" means (i) all obligations for borrowed money, (ii) all
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations in respect of letters of credit or bankers acceptances or
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business, (v)
all obligations as lessee which are capitalized in accordance with generally
accepted accounting principles and (vi) all Indebtedness of others guaranteed by
the Company or any of its subsidiaries or for which the Company or any of its
subsidiaries is otherwise responsible or liable (whether by agreement to
purchase indebtedness of, or to supply funds or to invest in, others).
"Intangible assets" means the value (net of any applicable reserves) as
shown on or reflected in such balance sheet of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organizational
costs; and (iii) deferred charges (other than prepaid items such as insurance,
taxes, interest, commissions, rents and similar items and tangible assets being
amortized); but in no event shall the term "intangible assets" include product
development costs.
"Subsidiary" means any corporation of which at least a majority of the
outstanding securities having voting power under ordinary circumstances for the
election of the board of directors of said corporation shall at the time
directly or indirectly be owned or controlled by the Company or by the Company
and one or more Subsidiaries or by one or more Subsidiaries. (Section 1.1 of the
Senior Indenture).
7
<PAGE>
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED SECURITIES
SUBORDINATION. The indebtedness evidenced by the Subordinated
Securities is subordinate to the prior payment in full of all Senior
Indebtedness (as defined). During the continuance beyond any applicable grace
period of any default in the payment of any Senior Indebtedness, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) will
be made or agreed to be made for principal, premium, if any, or interest, if
any, on the Subordinated Securities, or in respect of any redemption,
retirement, purchase, other acquisition or defeasance of the Subordinated
Securities. In addition, upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization, any payment or
distribution, whether in cash, securities or other property, made on account of
the principal of or interest, if any, on the Subordinated Securities is to be
subordinated to the extent provided in the Subordinated Indenture in right of
payment to the prior payment in full of all Senior Indebtedness. By reason of
such subordination, in the event of the Company's bankruptcy, dissolution or
reorganization, holders of Senior Indebtedness may receive more, ratably, and
holders of the Subordinated Securities may receive less, ratably, than the other
creditors of the Company. Such subordination will not prevent the occurrence of
any Event of Default under the Subordinated Indenture. (Sections 12.1, 12.2 and
12.3 of the Subordinated Indenture).
The subordination of any series of Subordinated Securities is expressly
made subject to the provisions of the Subordinated Indenture described under
"Discharge, Defeasance and Covenant Defeasance" below and, upon the
effectiveness of any such discharge, defeasance or covenant defeasance for a
series of Subordinated Securities, the series shall cease to be subordinated.
(Section 12.8 of the Subordinated Indenture).
The term "Senior Indebtedness" means the principal of, premium, if any,
and interest on, and any other payment due pursuant to any of the following,
whether outstanding on the date of the Subordinated Indenture or thereafter
incurred or created:
(a) all indebtedness of the Company for money borrowed
(including any indebtedness secured by a mortgage, conditional sales
contract or other lien which is (i) given to secure all or part of the
purchase price of property subject thereto, whether given to the vendor
of such property or to another, or (ii) existing on property at the time
of acquisition thereof);
(b) all indebtedness of the Company evidenced by notes,
debentures, bonds or other securities (including the Senior Securities);
(c) all lease obligations of the Company which are
capitalized on the books of the Company in accordance with generally
accepted accounting principles;
(d) all indebtedness of others of the kinds described in any
of the preceding clauses (a) or (b) and all lease obligations of others
of the kind described in the preceding clause (c) assumed by or
guaranteed in any manner by the Company or in effect guaranteed by the
Company through an agreement to purchase, contingent or otherwise; and
8
<PAGE>
(e) all renewals, extensions or refundings of indebtedness of
the kinds described in any of the preceding clauses (a), (b) or (d) and
all renewals or extensions of leases of the kinds described in any of
the preceding clauses (c) or (d);
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
lease, renewal, extension or refunding is subordinate to any other indebtedness
of the Company or is not superior in right of payment to, or is PARI PASSU with,
the Subordinated Securities. Notwithstanding the foregoing, Senior Indebtedness
shall not include (i) any indebtedness or lease obligation of any kind of the
Company to any subsidiary of the Company, a majority of the voting stock of
which is owned by the Company, or (ii) indebtedness for trade payables or
constituting the deferred purchase price of assets or services incurred in the
ordinary course of business. (Section 1.1 of the Subordinated Indenture).
As of March 31, 1994, the Company had approximately $296,273,465 million
of consolidated indebtedness outstanding (excluding accrued interest thereon)
which would have constituted either Senior Indebtedness or indebtedness of
subsidiaries of the Company. Except as described under "Provisions Applicable
Solely to Senior Securities," the Indentures do not limit other indebtedness or
securities which may be incurred or issued by the Company or any of its
subsidiaries or contain financial or similar restrictions on the Company or any
of its subsidiaries.
MERGER, CONSOLIDATION, SALE, LEASE OR CONVEYANCE
Each Indenture provides that the Company will not merge or consolidate
with any other person and will not sell, lease or convey all or substantially
all of its assets to any person, unless the Company shall be the continuing
corporation, or the successor corporation or person that acquires all or
substantially all of the assets of the Company shall be a corporation organized
under the laws of the United States or a State thereof or the District of
Columbia and shall expressly assume all obligations of the Company under the
applicable Indenture and the Debt Securities issued thereunder, and immediately
after such merger, consolidation, sale, lease or conveyance, the Company, such
person or such successor corporation shall not be in default in the performance
of the covenants and conditions of such Indenture to be performed or observed by
the Company. (Section 8.1).
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is
defined in each Indenture as being: (i) default for 30 days in payment of any
interest upon any Debt Securities of such series; (ii) default in any payment of
principal or premium, if any, upon any Debt Securities of such series; (iii)
default by the Company in performance of any other of the covenants or
agreements in respect of the Debt Securities of such series or the applicable
Indenture which shall not have been remedied for a period of 60 days after
written notice specifying that such notice is a "Notice of Default" under such
Indenture; (iv) certain events involving bankruptcy, insolvency or
reorganization of the Company; or (v) any other Event of Default established for
the Debt Securities of such series set forth in the Prospectus Supplement.
9
<PAGE>
(Section 4.1). Each Indenture provides that the applicable Trustee may withhold
notice to the holders of any series of the Debt Securities of any default
(except in payment of principal of, or interest on, such series of Debt
Securities) if such Trustee considers it in the interest of the holders of such
series of Debt Securities to do so. (Section 4.11).
Each Indenture provides that (a) if an Event of Default due to the
default in payment of principal of, premium, if any, or interest on, any series
of Debt Securities issued under the applicable Indenture or due to the default
in the performance or breach of any other covenant or agreement of the Company
applicable to the Debt Securities of such series but not applicable to all
outstanding Debt Securities issued under such Indenture shall have occurred and
be continuing, either the applicable Trustee or the holders of not less than 25%
in principal amount of the Debt Securities of each affected series issued under
such Indenture and then outstanding (each such series voting as a separate
class) may declare the principal of all Debt Securities of such affected series
and interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in such Indenture applicable to all outstanding Debt
Securities issued thereunder and then outstanding or due to certain events of
bankruptcy, insolvency and reorganization of the Company shall have occurred and
be continuing, either the applicable Trustee or the holders of not less than 25%
in principal amount of all Debt Securities issued under such Indenture and then
outstanding (treated as one class) may declare the principal on all such Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of (or premium,
if any) or interest on such Debt Securities) by the holders of a majority in
principal amount of the Debt Securities of all such affected series then
outstanding under such Indenture (each such series voting as a separate class).
(Sections 4.1 and 4.10).
The holders of a majority in principal amount of the Debt Securities of
each series then outstanding and affected (with each series voting as a separate
class) shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee with respect to the Debt
Securities of such series under the applicable Indenture, subject to certain
limitations specified in such Indenture, provided that the holders of such Debt
Securities shall have offered to such Trustee reasonable indemnity against
expenses and liabilities. (Sections 4.9 and 5.2(d)).
Each Indenture provides that no holder of Debt Securities of any series
may institute any action against the Company under the applicable Indenture
(except actions for payment of overdue principal, premium or interest) unless
such holder previously shall have given to the applicable Trustee written notice
of default and continuance thereof and unless the holders of not less than 25%
in principal amount of the Debt Securities of each affected series (with each
series voting as a separate class) issued under such Indenture and then
outstanding shall have requested such Trustee to institute such action and shall
have offered such Trustee reasonable indemnity, and such Trustee shall not have
instituted such action within 60 days of such request and the Trustee shall not
have received direction inconsistent with such written request by the holders of
a majority in principal amount of the Debt Securities of each affected series
(with each series voting as a separate class) issued under such Indenture and
then outstanding. (Sections 4.6 and 4.7).
10
<PAGE>
Each Indenture requires the annual filing by the Company with the
applicable Trustee of a written statement as to compliance with all conditions
and covenants contained in the applicable Indenture. (Section 3.5).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company can discharge or defease its obligations under the
Indentures as set forth below.
Under terms satisfactory to the applicable Trustee, the Company may
discharge certain obligations to holders of any series of Debt Securities issued
under the applicable Indenture which have not already been delivered to such
Trustee for cancellation and which have either become due and payable or are by
their terms due and payable within one year (or scheduled for redemption within
one year) by irrevocably depositing with such Trustee cash or U.S. Government
Obligations (as defined in such Indenture) as trust funds in an amount certified
to be sufficient to pay at maturity (or upon redemption) the principal of and
interest on such Debt Securities. (Section 9.1).
In case of any series of Debt Securities the exact amounts of principal
of and interest due on such series can be determined at the time of making the
deposit referred to below, the Company at its option at any time may also (i)
discharge any and all of its obligations to holders of such series of Debt
Securities issued under the applicable Indenture ("defeasance"), but may not
thereby avoid its duty to register the transfer or exchange of such series of
Debt Securities, to replace any temporary, mutilated, destroyed, lost, or stolen
Debt Securities of such series or to maintain an office or agency in respect of
such series of Debt Securities or (ii) be released, with respect to any
outstanding series of Senior Securities issued under the Senior Indenture, from
the obligations imposed by the covenants described under the caption "Provisions
Applicable Solely to Senior Securities" above and, with respect to any
outstanding series of Debt Securities issued under either Indenture, from the
obligations imposed by the covenant under the caption "Merger, Consolidation,
Sale, Lease, or Conveyance" above and omit to comply with such covenants without
creating an Event of Default ("covenant defeasance"), in each case on the 121st
day after the conditions set forth below have been satisfied. Defeasance or
covenant defeasance may be effected only if, among other things: (i) the
Company irrevocably deposits with the applicable Trustee cash and/or U.S.
Government Obligations, as trust funds in an amount certified by a nationally
recognized firm of independent public accountants to be sufficient to pay each
installment of principal of and interest on all outstanding Debt Securities of
such series issued under the applicable Indenture on the dates such installments
of principal and interest are due; and (ii) the Company delivers to such Trustee
an opinion of counsel to the effect that the holders of such series of Debt
Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of such defeasance or covenant defeasance and
will be subject to United States federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred (in the case of defeasance,
such opinion must be based on a ruling of the Internal Revenue Service or a
change in United States federal income tax law occurring after the date of such
Indenture). (Sections 9.2, 9.3, 9.4 and 9.5).
11
<PAGE>
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company and the
applicable Trustee, with the consent of the holders of not less than 66 2/3% in
principal amount of the Debt Securities at the time outstanding of all series
affected (voting as one class) under the applicable Indenture, to modify such
Indenture or any supplemental indenture or the rights of the holders of the Debt
Securities except that no such modification shall (i) extend the final maturity
of any of the Debt Securities or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or reduce the amount of any original issue
discount security payable upon acceleration or provable in bankruptcy or impair
or affect the right of any holder of the Debt Securities to institute suit for
the payment thereof or, with respect to the Subordinated Indenture, modify the
provisions with respect to the subordination of the Subordinated Securities in a
manner adverse to the holders of the Subordinated Securities in any material
respect, without the consent of the holder of each of the Debt Securities so
affected or (ii) reduce the aforesaid percentage in principal amount of Debt
Securities, the consent of the holders of which is required for any such
modification, without the consent of the holders of all Debt Securities then
outstanding under such Indenture. (Section 7.2).
CONCERNING THE TRUSTEES
The Senior Trustee and the Subordinated Trustee act as depositories for
funds of, may make loans to, or perform other services for, the Company and its
subsidiaries in the normal course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four
ways: (i) directly to purchasers; (ii) through agents; (iii) through
underwriters; and (iv) through dealers.
Offers to purchase Debt Securities may be solicited directly by the
Company or by agents designated by the Company from time to time. Any such
agent, who may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Debt Securities in respect
of which this Prospectus is delivered, will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a reasonable efforts basis for the period of its
appointment. The Company shall have the sole right to accept offers to purchase
Debt Securities and may reject any proposed offer in whole or in part. Agents
shall have the right, in their sole discretion, to reject any offer received by
them to purchase the Debt Securities in whole or in part. Agents may be
entitled under agreements which may be entered into with the Company to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act, and may engage in transactions with or
perform services for the Company in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of the Debt
Securities in respect of which this Prospectus is delivered, the Company will
execute an underwriting agreement with
12
<PAGE>
such underwriters at the time of the sale to them and the names of the
underwriters and the terms of the transaction will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
the Debt Securities in respect of which this Prospectus is delivered to the
public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act.
The place and time of delivery for the Debt Securities in respect of
which this Prospectus is delivered are set forth in the accompanying Prospectus
Supplement.
EXPERTS
The consolidated financial statements and the related supplemental
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K have been audited by Deloitte & Touche, independent public
accountants, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon such reports given
upon the authority of that firm as experts in accounting and auditing.
The consolidated financial statements of Burks Pumps, Inc. incorporated
in this Prospectus by reference from the Company's Current Report on Form 8-K
filed with the Commission on January 12, 1994, as amended by Form 8-K-A filed
with the Commission on January 26, 1994, have been audited by Price Waterhouse,
independent accountants, as stated in their report, which is incorporated herein
by reference, and have been so incorporated in reliance upon such report given
upon the authority of that firm as experts in accounting and auditing.
The consolidated financial statements of ELDEC Corporation as of March
28, 1993 and March 29, 1992 and for the three years ended March 28, 1993
incorporated in this Prospectus by reference to the Company's Current Report on
Form 8-K filed with the Commission on March 31, 1994, as amended by Form 8-K-A
filed with the Commission on May 2, 1994, have been audited by Coopers &
Lybrand, independent public accountants, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
such report given upon the authority of that firm as experts in accounting and
auditing.
The consolidated financial statements of Mark Controls Corporation
incorporated in this Prospectus by reference from the Company's Current Report
on Form 8-K filed with the Commission on May 12, 1994, as amended by Form 8-K-A
filed with the Commission on May 12, 1994, have been audited by Arthur Andersen
& Co., independent public accountants, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
such report given upon the authority of that firm as experts in accounting and
auditing.
13
<PAGE>
LEGAL OPINIONS
The validity of the Debt Securities offered hereby will be passed upon
for the Company by Paul R. Hundt, Esq., Vice President, General Counsel and
Secretary of the Company. Certain legal matters relating to the Debt Securities
offered hereby will be passed upon for any underwriters by Davis Polk &
Wardwell. As of May 10, 1994, Mr. Hundt held 146,430 shares of the Company's
common stock directly, of which 38,250 shares are subject to forfeiture upon
failure of the vesting conditions in the Company's Restricted Stock Award Plan,
3,134 shares of common stock under the Company's Savings and Investment Plan and
options to purchase 96,090 shares of common stock, granted under the Company's
Stock Option Plan.
14
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . $103,449
Printing and Engraving . . . . . . . . . 30,000
Legal Fees . . . . . . . . . . . . . . . 10,000
Accounting Fees. . . . . . . . . . . . . 25,000
Blue Sky Fees. . . . . . . . . . . . . . 20,000
Rating Agencies' Fees. . . . . . . . . . 120,000
Trustee's Fees . . . . . . . . . . . . . 7,500
Miscellaneous. . . . . . . . . . . . . . 29,051
-------
TOTAL. . . . . . . . . . . . . $345,000
</TABLE>
Each of the amounts set forth above, other than the Registration Fee, is an
estimate.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Act permits the
Company to indemnify officers, directors or employees against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement in
connection with legal proceedings "if [as to any officer, director or employee]
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to the best interests of the corporation, and, with respect to any
criminal act or proceeding, had no reasonable cause to believe his conduct was
unlawful," provided that with respect to actions by, or in the right of the
corporation against, such individuals, indemnification is not permitted as to
any matter as to which such person "shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation,
unless, and only to the extent that, the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper." Individuals who are successful in the defense of such action are
entitled to indemnification against expenses reasonably incurred in connection
therewith.
The By-Laws of the Company require the Company to indemnify directors
and officers against liabilities which they may incur under the circumstances
set forth in the preceding paragraph.
The Company maintains standard policies of insurance under which
coverage is provided (a) to its directors and officers against loss rising from
claims made by reason of breach of duty or other wrongful act and (b) to the
Company with respect to payments which may be made by the Company to such
officers and directors pursuant to the above indemnification provision or
otherwise as a matter of law.
II-1
<PAGE>
On April 27, 1987, shareholders of Crane, at the Annual Meeting of the
Company, approved an amendment to the Certificate of Incorporation limiting
directors' liability to the full extent permitted under Delaware law and also
approved indemnification agreements for directors and key officers. Disclosure
with respect to the amendment to the Certificate of Incorporation and the text
of the indemnity agreements was contained in the Company's Proxy Statement
issued in connection with its April 27, 1987 Annual Meeting, which is hereby
incorporated by reference herein. The amendment became effective upon its
filing with the State of Delaware on May 7, 1987 and the indemnity agreements
become effective upon their execution.
The proposed forms of Underwriting Agreement and Distribution
Agreement filed as Exhibits 1.1 and 1.2, respectively, to this Registration
Statement provide for indemnification of directors and officers of the
Registrant by the underwriters against certain liabilities.
ITEM 16. EXHIBITS
The following exhibits are filed as a part of this Registration
Statement:
Exhibit
Number Description
------ -----------
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Senior Indenture dated as of April 1, 1991 between
Crane and The Bank of New York, as Trustee, including the
forms of Debt Securities (incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-3 of Crane
(No. 33-39658))
4.2 Form of Subordinated Indenture between Crane and
The First National Bank of Chicago, as Trustee
5 Opinion of Paul R. Hundt
12 Computation of Ratios of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche
23.2 Consent of Paul R. Hundt (included in Exhibit 5)
23.3 Consent of Price Waterhouse
23.4 Consent of Coopers & Lybrand
23.5 Consent of Arthur Andersen & Co.
25.1 Form T-1 Statement of Eligibility and Qualification
Under the Trust Indenture Act of 1939 of The Bank of New York
(incorporated by reference to Exhibit 26 to the Registration
Statement on Form S-3 of Crane (No. 33-39658))
25.2 Form T-1 Statement of Eligibility and Qualification
Under the Trust Indenture Act of 1939 of The First National
Bank of Chicago
II-2
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and persons
controlling the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification (other than by policies of insurance)
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful
II-3
<PAGE>
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 19th day of May,
1994.
CRANE CO.
By /s/ R. S. Evans
R.S. Evans
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul R. Hundt and Thomas J. Ungerland,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and revocation, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and things requisite and necessary to be done as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ R.S. Evans Chairman of the Board, May 17, 1994
R.S. EVANS Principal Executive
Officer and Director
/s/ D.S. Smith Vice President May 17, 1994
D.S. SMITH Principal Financial
Officer
II-5
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ M.L. Raithel Controller May 17, 1994
M.L. RAITHEL and Principal
Accounting Officer
/s/ Mone Anathan, III Director May 16, 1994
MONE ANATHAN, III
/s/ E. Thayer Bigelow, Jr. Director May 17, 1994
E. THAYER BIGELOW, JR.
/s/ Richard S. Fort Director May 17, 1994
RICHARD S. FORT
/s/ Dorsey R. Gardner Director May 16, 1994
DORSEY R. GARDNER
/s/ Dwight C. Minton Director May 17, 1994
DWIGHT C. MINTON
/s/ C.J. Queenan, Jr. Director May 17, 1994
C.J. QUEENAN, JR.
/s/ A.A. Seeligson, Jr. Director May 17, 1994
A.A. SEELIGSON, JR.
/s/ Boris Yavitz Director May 17, 1994
BORIS YAVITZ
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description Numbered Page
------ ----------- -------------
1.1 Form of Underwriting Agreement
1.2 Form of Distribution Agreement
4.1 Senior Indenture dated as of April 1, 1991 between
Crane and The Bank of New York, as Trustee,
including the forms of Debt Securities
(incorporated by reference to Exhibit 4 to the
Registration Statement on Form S-3 of Crane (No.
33-39658))
4.2 Form of Subordinated Indenture between Crane
and The First National Bank of Chicago, as
Trustee
5 Opinion of Paul R. Hundt
12 Computation of Ratios of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche
23.2 Consent of Paul R. Hundt (included in Exhibit 5)
23.3 Consent of Price Waterhouse
23.4 Consent of Coopers & Lybrand
23.5 Consent of Arthur Andersen & Co.
25.1 Form T-1 Statement of Eligibility and Qualification
Under the Trust Indenture Act of 1939 of The Bank
of New York (incorporated by reference to Exhibit
26 to the Registration Statement on Form S-3 of
Crane (No. 33-39658))
25.2 Form T-1 Statement of Eligibility and Qualification
Under the Trust Indenture Act of 1939 of The
First National Bank of Chicago
<PAGE>
Exhibit 1.1
CRANE CO.
Debt Securities
Underwriting Agreement
__________ __, 19__
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Crane Co., a Delaware corporation (the "Company"), proposes to issue
and sell to the underwriters named in Schedule II hereto (the "Underwriters"),
for whom you are acting as representatives (the "Representatives"), the
principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), to be issued under the indenture specified in Schedule I hereto
(the "Indenture") between the Company and the Trustee identified in such
Schedule (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein shall each be deemed to
refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The
<PAGE>
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". Any reference in
this Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 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 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule II hereto at the purchase price set
forth in Schedule I hereto.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order by certified or official bank check or checks payable in New York Clearing
House or other next day funds on the date and at the time and place set forth in
Schedule I hereto (or at such other time and place on the same or such other
date, not later than the fifth Business Day thereafter, as the Representatives
and the
2
<PAGE>
Company may agree in writing). Such payment will be made upon delivery to, or
to the Representatives for the respective accounts of, such Underwriters of the
Securities registered in such names and in such denominations as the
Representatives shall request not less than two full Business Days prior to the
date of delivery, with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City. The time and date of such payment and delivery with
respect to the Securities are referred to herein as the Closing Date. The
certificates for the Securities will be made available for inspection and
packaging by the Representatives by 1:00 P.M. on the Business Day prior to the
Closing Date at such place in New York City as the Representatives and the
Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any 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, and the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part
of the Registration Statement which constitutes the Statement
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<PAGE>
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act, and none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when such documents
are filed with the Commission will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company, its consolidated subsidiaries and businesses acquired or to be
acquired by the Company for which separate financial statements are
required to be included as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the pro forma financial information, and the related notes
thereto, if any, included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable;
(d) since the respective dates as of which information is given in
the Registration Statement and
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<PAGE>
the Prospectus, there has not been any material adverse change, or any
development that could reasonably be expected to result in a material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of Crane Canada Inc., Huttig Sash & Door Company and
UniDynamics Corporation and any other subsidiary which constitutes a
"significant subsidiary" within the meaning of Rule 1-02 of Regulation S-X
(the "Material Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares of
capital stock of each Material Subsidiary have been duly authorized and
validly issued, are fully-paid and non-assessable, and (except in the case
of foreign subsidiaries, for directors' qualifying shares) are owned by the
Company,
5
<PAGE>
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(g) this Agreement has been duly authorized, executed and delivered
by the Company;
(h) the Securities have been duly authorized, and when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture, 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; the Indenture has been duly authorized
and upon effectiveness of the Registration Statement will have been duly
qualified under the Trust Indenture Act and, when executed and delivered by
the Company and the Trustee, the Indenture will constitute a valid and
binding instrument, enforceable in accordance with its terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability; and the Securities and the
Indenture will conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole or to
the holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement
6
<PAGE>
or other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries or
any of their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject in which there is a reasonable
probability of an adverse decision which could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole and, to the best of the Company's knowledge,
no such proceedings are threatened by governmental authorities or
threatened by others; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the Prospectus
which are not filed or described as required; and
(k) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
7
<PAGE>
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Representatives
pursuant to Rule 424 under the Securities Act not later than the
Commission's close of business on the second Business Day following the
date of determination of the offering price of the Securities;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (f) below, to each of
the Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference therein as
the Representatives may reasonably request;
(c) during the period mentioned in paragraph (f) below, before filing
any amendment or supplement to the Registration Statement or Prospectus, to
furnish to the Representatives a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus, for review, and
not to file any such proposed amendment or supplement to which the
Representatives reasonably object;
(d) to file promptly, subject to the provisions of paragraph (c)
above, all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the period mentioned
in paragraph (f) below;
(e) during the period mentioned in paragraph (f) below, to advise the
Representatives promptly, and to confirm such advice in writing, (i) when
any amendment to the Registration Statement shall have become effective,
(ii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of
8
<PAGE>
the Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts
to prevent the issuance of any such stop order or notification and, if
issued, to obtain as soon as possible the withdrawal thereof;
(f) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
the Representatives will furnish to the Company) to which Securities may
have been sold by the Representatives on behalf of the Underwriters and to
any other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(g) to endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such qualification
in effect so long as reasonably required for distribution of the Securities
and to pay all fees and expenses (including fees and disbursements of
counsel to the Underwriters) reasonably incurred in connection with such
qualification and in connection with the determination of the eligibility
of the Securities for investment under the laws of such jurisdictions as
the Representatives may designate; PROVIDED that the Company shall not be
required to file a general consent to service of process in any
jurisdiction;
(h) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective
9
<PAGE>
date of the Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(i) for a period of two years after the delivery of the Securities,
to furnish to the Representatives copies of all reports or other
communications (financial or other) furnished to holders of Securities, and
copies of any reports and financial statements furnished to or filed with
the Commission or any national securities exchange;
(j) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the Securities
without prior written consent of the Representatives; and
(k) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters
and their disbursements), (iv) in connection with the listing of the
Securities on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of
this Agreement, the Indenture, the Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to
underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided and (vii)
payable to rating agencies in connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
10
<PAGE>
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant
to Rule 424 within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
satisfaction of the Representatives;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change or any
development that could reasonably be expected to result in a material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which in
the judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company satisfactory to
the Representatives to the effect set forth in subsections
11
<PAGE>
(a) through (c) of this Section and to the further effect that there has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole from that set forth or contemplated in the Registration Statement;
(f) the General Counsel of the Company shall have furnished to the
Representatives his written opinion, dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each of the Material Subsidiaries has been duly incorporated
and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital stock of
each Material Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except in the case of
foreign subsidiaries, for directors'
12
<PAGE>
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best
of such counsel's knowledge, threatened to which the Company or any of
its subsidiaries is or may be a party or to which any property of the
Company or its subsidiaries is or may be the subject in which there is
a reasonable probability of an adverse decision which could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; to
the best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or threatened by others; and
such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture, enforceable in accordance with
their terms, except as (X) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (Y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company, enforceable in accordance with its terms,
13
<PAGE>
except as (X) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(Y) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and
the Indenture has been duly qualified under the Trust Indenture Act;
(viii) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation
of or in default under, its Certificate of Incorporation or By-Laws or
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation, or
the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(ix) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement or the
Indenture,
14
<PAGE>
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriter;
(x) the statements in (i) the Prospectus under "Description of
[Notes]", "Description of Debt Securities", "Plan of Distribution" and
"Underwriting", (ii) the Prospectus incorporated by reference from
Item 3 of Part I of the Company's Annual Report on Form 10-K for the
year ended December 31, 19[93] and (iii) the Registration Statement in
Item 15, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents or proceedings; and
(xi) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein as to
which such counsel need express no opinion) complied as to form when
filed with the Commission in all material respects with the Exchange
Act, (B) believes that (except for the financial statements included
therein as to which such counsel need express no 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 Securities, when such part became
effective, did not contain an 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, (C) is of the
opinion that the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial
statements included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and (D) believes that (except for
the financial statements included therein as to which such counsel
need express no belief) the Registration Statement, as supplemented by
the prospectus supplement contained in the Prospectus,
15
<PAGE>
and the Prospectus, on the date of this Agreement, 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, and that the Prospectus as amended or
supplemented, if applicable, 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.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
States and the States of New York and Delaware, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (reasonably satisfactory to Underwriters' counsel)
of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel is in
form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (xi) above, counsel may state
their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto (including the documents incorporated by
reference, therein) but is without independent check or verification except
as specified.
(g) on the Closing Date, Deloitte & Touche [and accountants of
acquired businesses] shall have furnished to the Representatives letters,
dated such date, in form and substance satisfactory to the Representatives,
containing statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
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<PAGE>
(h) the Representatives shall have received on and as of the Closing
Date an opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(i) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as are usual
and customary in transactions of the nature contemplated herein as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any 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 and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, 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 not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein; PROVIDED
that the foregoing indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person.
17
<PAGE>
Each Underwriter agrees, severally and not jointly to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person 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
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person 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 Person shall not, in connection with any
proceeding or related proceeding 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 Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Representatives on Schedule I hereto and any such separate
firm for the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company shall be designated in writing
by the Company. The
18
<PAGE>
Indemnifying Person 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 Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
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 60
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that 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 shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the
19
<PAGE>
Company and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the 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.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged 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 Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall
20
<PAGE>
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its officers or directors or any other person controlling the Company
and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; PROVIDED that in no event
shall the principal amount of Securities that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without the
written consent
21
<PAGE>
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate principal amount
of Securities with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Securities to be purchased, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. 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 or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to 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 expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by the first of the named Representatives set forth
in Schedule I hereto alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding upon the
Underwriters. All notices and
22
<PAGE>
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given at the address
set forth in Schedule I hereto. Notices to the Company shall be given to it at
100 First Stamford Place, Stamford, Connecticut 06902; Attention: Secretary.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
CRANE CO.
By:________________________
Name:
Title:
Accepted: _______________, 19__
J.P. MORGAN SECURITIES INC.
[OTHER UNDERWRITERS]
Acting severally on behalf of
[itself] [themselves] and the several
Underwriters listed in Schedule II
hereto.
By: J.P. MORGAN SECURITIES INC.
By: ________________________
Name:
Title:
23
<PAGE>
SCHEDULE I
Representatives: ____________________________________
Trustee: The Bank of New York
Underwriting Agreement ____________________________________
dated:
Registration Statement
No.: 33-_________________________________
Title of Securities: ____________________________________
Aggregate principal
amount: $___________________________________
Purchase Price: __% of the principal amount of the
Securities, plus accrued interest, if any,
from _____________, 19__.
Price to Public: __% of the principal amount of the
Securities, plus accrued interest, if any,
from ______________ __, 19__.
Indenture: Indenture dated as of ______________
between the Company and ____________
___________ as Trustee.
Maturity: ____________________________________
Interest Rate: ____% per annum, accruing from __________
_________,19 .
Interest Payment Dates: ____________________________________
Optional Redemption
Provisions: ____________________________________
Sinking Fund Provisions: ____________________________________
Other Provisions: ____________________________________
Closing Date and
Time of Delivery: ____________________________________
Closing Location: ____________________________________
Address for Notices
24
<PAGE>
to Underwriters: ____________________________________
25
<PAGE>
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
----------- ----------------
J.P. Morgan Securities Inc. . . . . . $
[Others]. . . . . . . . . . . . .
________________
Total: . . . . . . . . $
26
<PAGE>
Exhibit 1.2
CRANE CO.
$______________
Medium-Term Notes, Series __
Due from 9 months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
____________________, 19__
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
[Names and addresses of other Agents]
_____________________________________
_____________________________________
_____________________________________
Dear Sirs:
Crane Co., a Delaware corporation (the "Company"), confirms its
agreement with each of you with respect to the issue and sale from time to time
by the Company of its Medium-Term Notes, Series __ due from 9 months to 30 years
from date of issue (the "Securities") in an aggregate initial offering price of
up to $______________ (or the equivalent thereof in one or more foreign
currencies or composite currencies), as such amount shall be reduced by the
aggregate initial offering price of any other debt securities issued by the
Company, whether within or without the United States ("Other Securities")
pursuant to the registration statement referred to below, and agrees with each
of you (individually, an "Agent", and collectively, the "Agents", which term
shall include any additional agents appointed pursuant to Section 13 hereof) as
set forth in this Agreement. The Securities will be issued under an indenture
dated as of April 1, 1991 (the "Indenture") between the Company and The Bank of
New York, as Trustee (the "Trustee"). The Securities shall have the maturities,
interest rates, redemption provisions, if any, and other
<PAGE>
terms set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms
and rights thereof established, from time to time by the Company in accordance
with the Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly to investors (other than
broker-dealers) on its own behalf, the Company hereby (i) appoints the Agents as
the exclusive agents of the Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company by others pursuant to Section
2(a) hereof and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as principal, it
will enter into a separate agreement (each such agreement a "Terms Agreement"),
substantially in the form of Exhibit A hereto, relating to such sale in
accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on Form
S-3 (No. 33- ) in respect of the Securities with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"). The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Securities. The
Registration Statement, including the exhibits thereto, as amended to the
Commencement Date (as hereinafter defined), is hereinafter referred to as the
"Registration Statement" and the prospectus in the form in which it is first
used after the Commencement Date to offer the Securities is hereinafter referred
to as the "Basic Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to the Securities in the form filed with, or transmitted
for filing to, the Commission pursuant to Rule 424 under the Securities Act is
hereinafter referred to as the "Prospectus". Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 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
under the Securities Act which were filed
2
<PAGE>
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms of a
particular issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed under the Exchange Act after the date
of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
1. REPRESENTATIONS. The Company represents and warrants to, and
agrees with, each Agent as of the Commencement Date (as hereinafter defined), as
of each date on which the Company accepts an offer to purchase Securities
(including any purchase by an Agent as principal pursuant to a Terms Agreement
or otherwise), as of each date the Company issues and sells Securities and as of
each date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations and
warranties shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment or supplement thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or
3
<PAGE>
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and the Prospectus, as amended
or supplemented at the Closing Date, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements or omissions
in the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Agent furnished to the
Company in writing by such Agent expressly for use therein;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, or any amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and will not contain an 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;
(c) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company, its consolidated subsidiaries and businesses acquired or to be
acquired by the Company for which separate financial statements are
required to be included as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the pro forma financial
4
<PAGE>
information, and the related notes thereto, if any, included or
incorporated by reference in the Registration Statement and the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus; and except as set forth or contemplated in the
Prospectus neither the Company nor any of its subsidiaries has entered into
any transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a whole;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) Each of Crane Canada Inc., Huttig Sash Door Company and
UniDynamics Corporation and any other subsidiary which constitutes a
"significant subsidiary" within the meaning of Rule 1-02 of Regulation S-X
(the "Material Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where
5
<PAGE>
the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the issued shares of capital stock of each Material
Subsidiary has been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims;
(g) Each of this Agreement and any other applicable Terms Agreement
has been duly authorized, executed and delivered by the Company;
(h) The Securities have been duly authorized, and, when issued and
delivered in accordance with the Indenture and delivered to and paid for by
the purchasers thereof in accordance with this Agreement and any applicable
Terms Agreement, will have been duly executed, issued and delivered by the
Company and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, 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; the Indenture has been duly authorized, executed and
delivered by the Company and qualified under the Trust Indenture Act and
constitutes a valid and binding instrument, enforceable in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
and the Indenture conforms, and the Securities of any particular issuance
of Securities will conform, to the descriptions thereof in the Prospectus
as amended or supplemented to relate to such issuance of Securities;
(i) Neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or
6
<PAGE>
any of them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under, the Securities,
the Indenture, this Agreement and any Terms Agreement, and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or the By-Laws of the
Company or any applicable law or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by this Agreement, any
applicable Terms Agreement or the Indenture, except such as have been, or
will have been prior to the Commencement Date (as defined in Section 3
hereof), obtained under the Securities Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the offer and sale of the Securities;
(j) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of
the Company, threatened to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject in which there is a reasonable
probability of an adverse decision which could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as
7
<PAGE>
a whole, and, to the best of the Company's knowledge, no such proceedings
are threatened by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required;
(k) Immediately after any sale of Securities by the Company hereunder
or under any applicable Terms Agreement, the aggregate amount of Securities
which shall have been issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the Company (other than the
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement; and
(l) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. (a) SOLICITATIONS
AS AGENT. On the basis of the representations and warranties herein contained,
but subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Securities from the Company
upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in
effect with respect to any Agent, the Company shall not, without the consent of
such Agent, solicit or accept offers to purchase, or sell, Securities or any
other debt securities with a maturity at the time of original issuance of 9
months to 30 years, except pursuant to this Agreement and any Terms Agreement,
or except pursuant to a private placement not constituting a public offering
under the Securities Act or except in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term debt securities. However, the Company
reserves the right to sell, and may solicit and accept offers to purchase,
Securities directly on its own behalf to investors (other than broker-dealers).
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of
8
<PAGE>
offers to purchase Securities. Upon receipt of at least one business day's
prior notice from the Company, each Agent will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
such Agent or Agents that such solicitation may be resumed. During the period
of time that such solicitation is suspended, the Company shall not be required
to deliver any opinions, letters or certificates in accordance with Sections
4(i), 4(j) and 4(k); PROVIDED that if the Registration Statement or Prospectus
is amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered for the
Securities or for a change that the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Securities until the
Company has delivered such opinions, letters and certificates as such Agent may
reasonably request.
The Company agrees to pay each Agent, as consideration for the sale of
each Security resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the purchase
price of such Security in an amount equal to the following applicable percentage
of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
- ------------------- -------------------
From 9 months to less than 1 year.......... .___%
From 1 year to less than 18 months......... .___%
From 18 months to less than 2 years........ .___%
From 2 years to less than 3 years.......... .___%
From 3 years to less than 4 years.......... .___%
From 4 years to less than 5 years.......... .___%
From 5 years to less than 6 years.......... .___%
From 6 years to less than 7 years.......... .___%
From 7 years to less than 10 years......... .___%
From 10 years to less than 15 years........ .___%
From 15 years to less than 20 years........ .___%
20 years and more.......................... .___%
The Agents are authorized to solicit offers to purchase Securities
only in the principal amount of at least
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$________ (or, in the case of Securities not denominated in U.S. dollars, the
equivalent thereof in the applicable foreign currency or composite currency,
rounded down to the nearest 1,000 units of such foreign currency or composite
currency) or any amount in excess thereof which is an integral multiple of
$_______ (or, in the case of Securities not denominated in U.S. dollars, 1,000
units of such foreign currency or composite currency). Each Agent shall
communicate to the Company, orally or in writing, each offer to purchase
Securities received by such Agent as agent that in its judgment should be
considered by the Company. The Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer in whole or in
part. Each Agent shall have the right, in its sole discretion, to reject any
offer to purchase Securities, as a whole or in part, that it considers to be
unacceptable and any such rejection shall not be deemed a breach of its
agreements herein contained. The procedural details relating to the issue and
delivery of Securities sold by an Agent as agent and the payment therefor are
set forth in the Administrative Procedures (as hereinafter defined).
(b) PURCHASE AS PRINCIPAL. Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless such Agent shall otherwise agree) a Terms Agreement which will provide
for the sale of such Securities to, and the purchase thereof by, such Agent. A
Terms Agreement will be substantially in the form of Exhibit A hereto but may
take the form of an exchange of any standard form of written telecommunication
between an Agent and the Company and may also specify certain provisions
relating to the reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein and in the applicable Terms Agreement
set forth. Each agreement by an Agent to purchase Securities as principal
(pursuant to a Terms Agreement or otherwise) shall specify the principal amount
of Securities to be purchased by such Agent pursuant thereto, the price to be
paid to the Company for such Securities, the maturity date of such Securities,
the interest rate or interest rate basis, if any, applicable to such Securities,
any other terms of such Securities, the time and date and place of delivery of
and payment for such Securities (the time and date of any and each such delivery
and payment, the "Time of Delivery"), any provisions relating to rights of, and
default by, underwriters acting together with such Agent in the reoffering of
Securities, and shall also specify any
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requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified in a
Terms Agreement, the procedural details relating to the issue and delivery of
Securities purchased by an Agent as principal and the payment therefore shall be
as set forth in the Administrative Procedures.
(c) OBLIGATIONS SEVERAL. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as to
the manner in which it solicits purchasers for the Securities and as to the
identity thereof.
(d) ADMINISTRATIVE PROCEDURES. The Agents and the Company agree to
perform their respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Company and the Agents.
(e) OTHER SECURITIES. The Company agrees to notify each Agent of
sales by the Company of Other Securities.
3. COMMENCEMENT DATE. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below) shall
be delivered to the Agents at the offices of Davis Polk & Wardwell, counsel for
the Agents, 450 Lexington Avenue, New York, New York, at 11:00 a.m., New York
City time, on the date of this Agreement, which date and time of such delivery
may be postponed by agreement between the Agents and the Company, but in no
event shall be later than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or the first date on which the
Company accepts an offer by any Agent to purchase Securities as principal (such
time and date being referred to herein as the "Commencement Date").
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each Agent:
(a)(i) To make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Securities pursuant to this Agreement or any Terms Agreement which shall be
disapproved by any Agent after reasonable opportunity
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<PAGE>
to comment thereon, PROVIDED, HOWEVER, that the foregoing shall not apply
to any of the Company's periodic filings with the Commission described in
subsection (iii) below, copies of which filings the Company will cause to
be delivered to the Agents promptly after their transmission to the
Commission for filing; (ii) subject to the foregoing clause (i), promptly
to 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 and to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such Agent
and to file such Pricing Supplement in accordance with Rule 424(b) under
the Securities Act; and (iii) promptly to file all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities. The Company
will promptly advise each Agent (i) of the filing of any amendment or
supplement to the Basic Prospectus or any amendment to the Registration
Statement and of the effectiveness of any such amendment to the
Registration Statement, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any prospectus relating to the
Securities or the initiation or threatening of any proceeding for that
purpose, or of any request by the Commission for any amendment or
supplement of the Registration Statement or Prospectus or for additional
information and (iii) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose. The Company agrees to use its best
efforts to prevent the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or of any
notification suspending any such qualification and, if issued, to use
promptly its best efforts to obtain withdrawal thereof as soon as possible.
If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in
the Prospectus, no Agent shall be obligated to solicit offers to purchase
Securities so long as it is not reasonably satisfied with such document.
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<PAGE>
(b) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Securities
and to pay all fees and expenses (including fees and disbursements of
counsel to the Agents) reasonably incurred in connection with such
qualification and in connection with the determination of the eligibility
of the Securities for investment under the laws of such jurisdictions as
such Agent may designate; PROVIDED that the Company shall not be required
to file a general consent to service of process in any jurisdiction.
(c) To furnish each Agent and counsel to the Agents, at the expense
of the Company, a signed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the period
mentioned in paragraph (d) below, to furnish each Agent as many copies of
the Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as such Agent may reasonably
request.
(d) If at any time when a prospectus relating to the Securities is
required to be delivered under the Securities Act, any event shall occur as
a result of which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when such Prospectus is delivered to a
purchaser, not misleading, or, if in the opinion of the Agents or the
Company, it is necessary at any time to amend or supplement the Prospectus
to comply with law, to immediately notify the Agents by telephone (with
confirmation in writing) and request each Agent (i) in its capacity as
agent of the Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such Agent shall cease
such solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later) and (ii) to cease
sales of any Securities such Agent may then own as principal. If the
Company shall decide to amend or supplement the Registration Statement or
the Prospectus, as then amended or supplemented, it shall so advise each
Agent promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be
13
<PAGE>
filed promptly with the Commission an amendment or supplement to the
Registration Statement or the 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 the Agents in such
quantities as they may reasonably request. If any such amendment or
supplement and any documents, opinions, letters and certificates furnished
to the Agents pursuant to Sections 4(e), 4(i), 4(j) and 4(k) in connection
with the preparation and filing of such amendment or supplement are
satisfactory in all respects to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the Agents
will resume the solicitation of offers to purchase Securities hereunder.
Notwithstanding any other provision of this Section 4(d), until the
distribution of any Securities any Agent may own as principal has been
completed or in the event such Agent, in the opinion of its counsel, is
otherwise required to deliver a prospectus in respect of a transaction in
the Securities, if any event described in this Section 4(d) occurs the
Company will, at its own expense, promptly prepare and file with the
Commission an amendment or supplement, satisfactory in all respects to such
Agent, that will correct such statement or omission or effect such
compliance, will supply such amended or supplemented Prospectus to such
Agent in such quantities as such Agent may reasonably request and shall
furnish to such Agent pursuant to Sections 4(e), 4(i), 4(j) and 4(k) such
documents, certificates, opinions and letters as it may request in
connection with the preparation and filing of such amendment or supplement.
(e) To furnish to the Agents during the term of this Agreement 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 Securities, this Agreement, the Administrative Procedures,
any applicable Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request and shall notify the Agents promptly in writing of any
downgrading, or on its receipt of any notice of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any of securities of, or
14
<PAGE>
guaranteed by, the Company by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act.
(f) To make generally available to its security holders and to such
Agent as soon as practicable earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering periods of at least twelve
months beginning in each case with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement with respect to each sale of Securities.
(g) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to holders of Securities and copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed.
(h) That, from the date of any applicable Terms Agreement with such
Agent or other agreement by such Agent to purchase Securities as principal
and continuing to and including the business day following the related Time
of Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of or guaranteed by the Company which are substantially
similar to the Securities, without the prior written consent of such Agent.
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Securities or for a
change the Agents deem to be immaterial) and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specified the
delivery of an opinion under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement or other agreement,
the Company shall furnish or cause to be furnished forthwith to such Agent
a written opinion of [the Company's General Counsel], or other counsel for
the Company satisfactory to such Agent, dated the date of such amendment or
supplement, or the related Time of
15
<PAGE>
Delivery relating to such sale, as the case may be, in form satisfactory to
such Agent, of the same tenor as the opinion referred to in Section 6(b)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the date of such opinion, or, in
lieu of such opinion, counsel last furnishing such an opinion, may furnish
to the Agents a letter to the effect that such Agent may rely on the
opinion of such counsel which was last furnished to such Agent to the same
extent as though it were dated the date of such letter (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to
date of delivery of such letter).
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement or
other agreement and such Terms Agreement or other agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase
of Securities pursuant to such Terms Agreement or other agreement, the
Company shall cause the independent certified public accountants who have
certified the financial statements of the Company, its subsidiaries or any
business acquired or to be acquired by the Company included or incorporated
by reference in the Registration Statement forthwith to furnish such Agent
a letter, dated the date of such amendment or supplement or the related
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 6(d) hereof but modified to relate to the Registration Statement
and the Prospectus as amended or supplemented to the date of such letter
with such changes as may be necessary to reflect such amended or
supplemented financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented,
PROVIDED, HOWEVER, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date, as
though made at and as of such date, rather than repeat, statements with
respect to such financial information or other matter made in the letter
referred to in Section 6(d) hereof which was last furnished to such Agent.
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<PAGE>
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered on the Securities or for a
change the Agents deem to be immaterial), and each time the Company sells
Securities to such Agent as principal and the applicable Terms Agreement or
other agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate signed by an executive
officer of the Company, dated the date of such amendment or supplement or
the related Time of Delivery relating to such sale, as the case may be, in
form satisfactory to such Agent, of the same tenor as the certificates
referred to in Section 6(e) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the date of
delivery of such certificate or to the effect that the statements contained
in the certificate referred to in Section 6(e) hereof which was last
furnished to such Agent are true and correct at such date as though made at
and as of such date (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended or supplemented
to such date).
5. COSTS AND EXPENSES. The Company covenants and agrees with each
Agent that the Company will, whether or not any sale of Securities is
consummated, pay all costs and expenses incident to the performance of its
obligations hereunder and under any applicable Terms Agreement, including
without limiting the generality of the foregoing, all costs and expenses: (i)
incident to the preparation, issuance, execution, authentication and delivery of
the Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Agents
(or in connection with any Terms Agreement, the applicable Agent) may designate
(including fees of counsel for the Agents (or such Agent) and their
disbursements), (iv) in connection with the listing of the Securities on any
stock exchange, (v) related to any filing with National Association of
Securities Dealers, Inc., (vi) in connection
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<PAGE>
with the printing (including word processing and duplication costs) and delivery
of this Agreement, the Indenture, any Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to the Agents and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vii) payable to rating agencies in connection with the rating
of the Securities, (viii) the fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Securities, including
any opinions to be rendered by such counsel hereunder and (ix) any advertising
and out-of-pocket expenses incurred by the Agents.
6. CONDITIONS. The obligation of any Agent, as agent of the Company,
at any time ("Solicitation Time") to solicit offers to purchase the Securities,
the obligation of any Agent to purchase Securities as principal pursuant to any
Terms Agreement or otherwise, and the obligation of any other purchaser to
purchase Securities shall in each case be subject (1) to the condition that all
representations and warranties of the Company herein and all statements of
officers of the Company made in any certificate furnished pursuant to the
provisions hereof are true and correct (i) in the case of an Agent's obligation
to solicit offers to purchase Securities, at and as of such Solicitation Time
and (ii) in the case of any Agent's or any other purchaser's obligation to
purchase Securities, at and as of the time the Company accepts the offer to
purchase such Securities and, as the case may be, at and as of the related Time
of Delivery or time of purchase, (2) to the condition that at or prior to such
Solicitation Time, time of acceptance, Time of Delivery or time of purchase, as
the case may be, the Company shall have complied with all its agreements and all
conditions on its part to be performed or satisfied hereunder and (3) to the
following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if
applicable, the Pricing Supplement) with respect to such Securities
shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act;
no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceeding for that purpose shall
have been
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<PAGE>
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent;
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by
the Company by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have been any material adverse change or any
development that could reasonably be expected to result in a material
adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
as amended or supplemented to such Solicitation Time or at the time
such offer to purchase was made, the effect of which in the judgment
of the applicable Agent makes it impracticable or inadvisable to
market the Securities on the terms and in the manner contemplated in
the Prospectus, as so amended or supplemented; and
(iv)(A) trading generally shall not have been suspended or
materially limited on or by, as the case may be, any of the New York
Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (B) trading
of any securities of or guaranteed by the Company shall not have been
suspended on any exchange or in any over-the-counter market, (C) a
general moratorium on commercial banking activities in New York shall
not have been declared by either Federal or New York State
authorities, or (D) there shall not have occurred any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of such Agent or Agents or of
such other purchaser, is material and adverse and which
19
<PAGE>
in the judgment of such Agent or Agents or of other purchaser makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at the
Solicitation Time or at the time such offer to purchase was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the General Counsel of
the Company shall have furnished to the relevant Agent or Agents his
written opinion, dated the Commencement Date or Time of Delivery, as the
case may be, in form and substance satisfactory to such Agent or Agents, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualifications, other
than where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its subsidiary
taken as a whole;
(iii) each Material Subsidiary has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction
of incorporation with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the
failure to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all of the issued shares of capital stock of each Material
Subsidiary have
20
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been duly and validly authorized and issued, are fully paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best
of such counsel's knowledge, threatened to which the Company or any of
its subsidiaries is or may be a party or to which any property of the
Company or its subsidiaries is or may be the subject in which there is
a reasonable probability of an adverse decision which could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; to
the best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or threatened by others; and
such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required;
(v) this Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(vi) the Securities have been duly authorized and, when executed
and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by any purchaser of Securities sold through
an Agent as agent or any Agent as principal pursuant to any Terms
Agreement or other agreement, will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, except as (X)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (Y) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
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(vii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company, enforceable in accordance with its terms,
except as (X) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(Y) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and
the Indenture has been duly qualified under the Trust Indenture Act;
(viii) neither the Company nor any of its subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation
of or in default under, its Certificate of Incorporation or By-Laws or
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities,
the Indenture, this Agreement and any applicable Terms Agreement or
other agreement pursuant to which an Agent purchases Securities as
principal and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
22
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(ix) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement, any
applicable Terms Agreement or other agreement pursuant to which an
Agent purchases Securities as principal, or the Indenture, except such
consents, approvals, authorizations, registrations or qualifications
as have been obtained under the Securities Act and the Trust Indenture
Act and as may be required under state securities or Blue Sky laws in
connection with the distribution, offer and sale of the Securities by
the Company and the Agents;
(x) the statements in (i) the Prospectus under "Description of
Notes", "Description of Debt Securities" and "Plan of Distribution",
(ii) the Prospectus incorporated by reference from Item 3 of Part 1 of
the Company's Annual Report on Form 10-K most recently filed with the
Commission, (iii) the Prospectus incorporated by reference from item 1
of Part II of the Company's Quarterly Reports on Form 10-Q, if any,
filed with the Commission since such Annual Report, (iv) the
Prospectus incorporated by reference from item 5 of the Company's
Current Reports on Form 8-K, if any, filed with the Commission since
such Annual Report and (v) the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents
or proceedings;
(xi) such counsel is of the opinion ascribed to it in the
Prospectus under the caption "Taxation", if any; and
(xii) such counsel (A) is of the opinion that each document
incorporated by reference in Registration Statement and the Prospectus
(except for the financial statements included therein as to which such
counsel need express no opinion) complied as to form when filed with
the Commission in all material respects with the Exchange Act, (B)
believes that (except for the financial statements included therein as
to which such counsel need express no belief) each part of the
Registration Statement (including the documents
23
<PAGE>
incorporated by reference therein) filed with the Commission pursuant
to the Securities Act relating to the Securities, when such part
became effective did not and, as of the date such opinion is
delivered, does 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, (C) is of the
opinion that the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial
statements included therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and (D)
believes that (except for the financial statements included therein as
to which such counsel need express no belief) the Prospectus, as
amended or supplemented, if applicable, as of the date such opinion is
delivered 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 in the case of an opinion
delivered on the Commencement Date or pursuant to Section 4(i), the
opinion and belief set forth in clauses (C) and (D) above shall be
deemed not to cover information concerning an offering of particular
Securities to the extent such information will be set forth in a
supplement to the Basic Prospectus.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws other than the laws of the United States
and the States of New York and Delaware, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion or
opinions (reasonably satisfactory to the Agents' counsel) of other counsel
reasonably acceptable to the Agents' counsel, familiar with the applicable laws;
and (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of documents
respecting the corporate existence of good standing of the Company. The opinion
of such counsel for the Company shall state that the opinion of any such other
counsel is in form satisfactory to such counsel and, in such counsel's opinion,
the Agents and they are justified in relying thereon. With respect to the
matters to be covered in subparagraphs (b)(x)
24
<PAGE>
and (b)(xii) above, counsel may state their opinion and belief is based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (including the documents
incorporated by reference, therein), but is without independent check or
verification except as specified.
(c) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Davis Polk & Wardwell,
counsel to the Agents, shall have furnished to the relevant Agent or Agents
such opinion or opinions, dated the Commencement Date or Time of Delivery,
as the case may be, with respect to the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent or Agents may
reasonably request, and in each case such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters.
(d) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Deloitte & Touche, the
Company's independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus, as
then amended or supplemented, [and independent certified public accountants
of businesses acquired or to be acquired by the Company who have certified
the financial statements of such businesses and their subsidiaries] shall
have furnished to the relevant Agent or Agents a letter, dated the
Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, 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 relating to the Company [and businesses
acquired or to be acquired by the Company] contained in or incorporated by
reference in the Registration Statement and the Prospectus, as then amended
or supplemented.
25
<PAGE>
(e) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of the Company, dated the Commencement Date or Time of
Delivery, as the case may be, to the effect set forth in Section 6(a)(i)
and (ii) above and to the further effect that (1) the representations and
warranties of the Company contained herein are true and correct on and as
of the Commencement Date or Time of Delivery, as the case may be, as if
made on and as of such date, (2) the Company has complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder or under the applicable Terms Agreement or other agreement at or
prior to the Commencement Date or Time of Delivery, as the case may be, and
(3) there has not occurred any material adverse change, or any development
that could reasonably be expected to result in a material adverse change,
in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole from that set forth in or
contemplated by the Registration Statement or the Prospectus.
(f) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such further
certificates, information and documents as are usual and customary in
transactions of the nature contemplated herein as such Agent or Agents may
reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein
26
<PAGE>
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Agent furnished to the Company in
writing by such Agent expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Agent, but only with
reference to information relating to such Agent furnished to the Company in
writing by such Agent expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person 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
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person 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 Person shall not, in connection with any
proceeding or related proceeding 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 Indemnified Persons, and that all such fees
27
<PAGE>
and expenses shall be reimbursed as they are incurred. Any such separate firm
for the Agents and such control persons of the Agents shall be designated in
writing by J.P. Morgan Securities Inc. or, if J.P. Morgan Securities Inc. is not
an Indemnified Party by the Agents that are Indemnified Parties and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person 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 60 day after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or (b) of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to herein in
connection with any offering of Securities, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person 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 each Agent on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
28
<PAGE>
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and each Agent on the other in connection with the
statements or omissions that 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 each Agent on the
other in connection with the offering of such Securities shall be deemed to be
in the same respective proportion as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
discounts and commissions received by each Agent in respect thereof bear to the
aggregate offering price of such Securities. The relative fault of the Company
on the one hand and of each Agent on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by such Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Agent agrees that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by PRO
RATA allocation (even if all Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to above in this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in no
event shall an Agent be required to contribute any amount in excess of the
amount by which the total price at which the Securities referred to in Section
7(d) that were sold by or through such Agent exceeds the amount of any damages
that such Agent has otherwise been required to pay by reason of such untrue or
alleged 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 obligation of each Agent to
contribute pursuant to this subsection (d) is several (in the proportion that
the principal amount of the Securities the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities bears to the
29
<PAGE>
aggregate principal amount of the Securities the sale of which by or through any
Agent gave rise to such losses, claims, damages or liabilities) and is not
joint.
(e) The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. TERMINATION. (a) This Agreement may be terminated at any time
(i) by the Company with respect to any or all of the Agents or (ii) by any Agent
with respect to itself only, in each case upon the giving of written notice of
such termination to each other party hereto. Any Terms Agreement shall be
subject to termination in the absolute discretion of the Agent or Agents that
are parties thereto on the terms set forth or incorporated by reference therein.
The termination of this Agreement shall not require termination of any agreement
by an Agent to purchase Securities as principal (whether pursuant to a Terms
Agreement or otherwise) and the termination of such an agreement shall not
require termination of this Agreement. In the event this Agreement is
terminated with respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such termination has not
occurred, (y) this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and (z) in any event,
the provisions of the fourth paragraph of Section 2(a), Section 2(c), the last
sentence of Section 4(d) and Sections 4(f), 4(g), 5, 7, 9, 10, 12 and 15 shall
survive; PROVIDED that if at the time of termination an offer to purchase
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Securities has not yet occurred, the provisions
of Sections 2(b), 2(d), 4(a) through 4(e), 4(h) through 4(k) and 6 shall also
survive. If any Terms Agreement is terminated, the provisions of the last
sentence of Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through
4(k), 5, 6, 7, 9, 10, 12 and 15 (which shall have been incorporated by reference
in such Terms Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be terminated by
an Agent or Agents 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 any Terms Agreement or if for any reason the Company shall be unable to
perform its obligations under
30
<PAGE>
this Agreement or any Terms Agreement or any condition of any Agent's
obligations cannot be fulfilled, the Company agrees to reimburse each Agent or
such Agents as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Agent or Agents in connection with
this Agreement or the offering of Securities.
9. POSITION OF THE AGENTS. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing the other obligations of
such Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal and does not assume any obligation
towards or relationship of agency or trust with any purchaser of Securities.
Each Agent will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Securities from the
Company was solicited by such Agent and has been accepted by the Company, but
such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the Agent that solicited such
offer any commission to which it would be entitled in connection with such sale.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnities and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
11. NOTICES. Except as otherwise specifically provided herein or in
the Administrative Procedures, all statements, requests, notices and advices
hereunder shall be in writing, and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents
31
<PAGE>
will be sent, in the case of J.P. Morgan Securities Inc., to 60 Wall Street, New
York, New York 10260 (Telex: RCA 232194) Attention: Medium-Term Note
Department, in the case of [OTHER AGENTS], to [ADDRESSES] and, if sent to the
Company, to it at 100 First Stamford Place, Stamford, Connecticut 06902;
Attention: Secretary.
12. SUCCESSORS. This Agreement and any Terms Agreement shall be
binding upon, and inure solely to the benefit of, each Agent and the Company,
and their respective successors and the officers, directors and controlling
persons referred to in Section 7 and (to the extent expressly provided in
Section 6) the purchasers of Securities, and no other person shall acquire or
have any right or obligation under or by virtue of this Agreement or any Terms
Agreement.
13. AMENDMENTS. This Agreement may be amended or supplemented if,
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; PROVIDED that the Company may from time to time, on 7
days prior written notice to the Agents but without the consent of any Agent,
amend this Agreement to add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such firm shall become an
Agent hereunder on the same terms and conditions as the other Agents that are
parties hereto. The Agents shall sign any amendment or supplement giving effect
to the addition of any such firm as an Agent under this Agreement.
14. BUSINESS DAY. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any day
which is not a Saturday or Sunday or legal holiday or a day on which banks in
New York City are required or authorized by law or executive order to close.
15. APPLICABLE LAW. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
16. COUNTERPARTS. This Agreement and any Terms Agreement may be
signed in counterparts, each of which shall be an original, and all of which
together shall constitute one and the same instrument.
17. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us ___ counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
CRANE CO.
By: ____________________
Accepted in New York, New York,
as of the date first above written:
J.P. MORGAN SECURITIES INC.
By:________________________
Name:
Title:
[Names of other Agents]
By: ___________________________
Name:
Title:
33
<PAGE>
EXHIBIT A
CRANE CO.
MEDIUM TERM NOTES, SERIES __
TERMS AGREEMENT
___________, 19__
Crane Co.
100 First Stamford Place
Stamford, Connecticut 06902
Attention: ____________________
Re: Distribution Agreement dated as of
__________, 1994
(the "Distribution Agreement")
----------------------------------
The undersigned agrees to purchase your Medium-Term Notes, Series __
having the following terms:
Specified Currency:__________________________________
Principal Amount:____________________________________
Original Issue Date:_________________________________
Settlement Date, Time
and Place:_________________________________________
Maturity Date:__________________________________
Purchase Price: _____% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Price to Public:_______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
A-1
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Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)
Interest Rate:_______________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule: ]
(1)[(For Floating Rate Notes)
Initial Interest Rate:____________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, __________):___________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other):______________________
Interest Reset Period (monthly, quarterly,
semianually, annually): _________________
Interest Payment Period (monthly, quarterly,
semiannually, annually):_________________
Spread: ____________________ points (+/-)
Spread Multiplier: ___________%
Maximum Interest Rate:________%
Minimum Interest Rate:________%
____________________
(1)See Prospectus Supplement dated _____________ for explanation of terms.
A-2
<PAGE>
Initial Interest Reset Date:__________________
Interest Reset Dates:__________________
Interest Determination Dates:__________
Interest Payment Dates:________________
Calculation Agent: ]
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11,
12 and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by reference herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purposes of this Agreement.
A-3
<PAGE>
[The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.]
[NAME OF AGENT]
By:______________________
(Title)
Accepted:
CRANE CO.
By:_________________________
(Title)
A-4
<PAGE>
EXHIBIT B
CRANE CO.
MEDIUM-TERM NOTES, SERIES __
ADMINISTRATIVE PROCEDURES
_______________________________
The Medium-Term Notes, Series __ (the "Notes"), are to be offered on a
continuous basis by Crane Co. (the "Company"). Each of J.P. Morgan Securities
Inc., ______________ and __________________ (each an "Agent") has agreed to
solicit offers to purchase the Notes in registered form. The Notes are being
sold pursuant to a Distribution Agreement dated as of ____________ __, 19__ (the
"Agreement") between the Company and the Agents. In the Agreement, each Agent
has agreed to use reasonable efforts to solicit purchases of the Notes. Each
Agent, as principal, may purchase Notes for its own account and, if such Agent
so elects, the Company and such Agent will enter into a Terms Agreement, as
contemplated by the Agreement. The Company may also solicit offers to purchase
and may sell Notes directly on its own behalf to investors (other than
broker-dealers).
The Notes will be issued under an Indenture dated as of April 1, 1991
(as supplemented or amended from time to time, the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee"). The Trustee will
be the Registrar, Calculation Agent, Authenticating Agent and Paying Agent for
the Notes, and will perform the duties specified herein. Notes will bear
interest at a fixed rate (the "Fixed Rate Notes"), which may be zero in the case
of certain original issue discount notes (the "OID Notes"), or at floating rates
(the "Floating Rate Notes"). Fixed Rate Notes may pay a level amount in respect
of both interest and principal amortized over the life of the Notes ("Amortizing
Notes"). Each Note will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except in limited circumstances, an
owner of a Book-Entry Note will not be entitled to receive a Certificated Note.
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<PAGE>
Book-Entry Notes, which may be payable solely in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture or the Notes shall be used herein
as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of the date hereof (the "Letter of
Representation"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of _________________ __, 19__, and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more
Book-Entry Notes, the Company will issue a
single global security in fully registered
form without coupons (a "Global Security")
representing up to U.S $___,000,000 principal
amount of all such Notes that have the same
Maturity Date, redemption or repayment
provisions, Interest Payment Dates, Original
Issue Date, original issue discount
provisions (if any), and, in the case of
Fixed Rate Notes, Interest Rate, modified
payment upon acceleration (if any),
amortization schedule (if any) or, in the
case of Floating Rate Notes, Initial Interest
Rate, Interest Payment Dates, Interest
Payment Period, Calculation Agent, Base Rate,
Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), [Alternative Rate Event
Spread (if any),] Minimum Interest Rate (if
any) and Maximum Interest Rate (if any)
B-2
<PAGE>
and, in each case, any other relevant terms
(collectively "Terms"). Each Global Security
will be dated and issued as of the date of
its authentication by the Trustee. Each
Global Security will bear an "Interest
Accrual Date," which will be (i) with respect
to an original Global Security (or any
portion thereof), its original issuance date
and (ii) with respect to any Global Security
(or any portion thereof) issued subsequently
upon exchange of a Global Security, or in
lieu of a destroyed, lost or stolen Global
Security, the most recent Interest Payment
Date to which interest has been paid or duly
provided for on the predecessor Global
Security or Securities (or if no such payment
or provision has been made, the original
issuance date of the predecessor Global
Security), regardless of the date of
authentication of such subsequently issued
Global Security. Book-Entry Notes may only
be denominated and payable in U.S. dollars.
No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes
or (ii) any Certificated Note. [No Note
issued between a Record Date and the related
Interest Payment Date shall be issued as a
Global Security within the meaning of the
Indenture.]
Identification The Company has arranged with the
Numbers: CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the reservation of a series of approximately
900 CUSIP numbers (including tranche numbers)
for assignment to the Global Securities
representing the Book-Entry Notes. The
Company has obtained from the CUSIP Service
Bureau a written list of such series of
reserved CUSIP numbers and has delivered to
the Trustee and DTC the written list of 900
CUSIP numbers of such series. The
[Company/Trustee]
B-3
<PAGE>
will assign CUSIP numbers to Global
Securities as described below under
Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the
CUSIP numbers that the [Company/Trustee] has
assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global
Securities, the Trustee shall so advise the
Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers
for assignment to Global Securities
representing Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the
Company shall deliver a list of such
additional CUSIP number to the Trustee and
DTC.
Registration: Each Global Security will be registered in
the name of Cede & Co., as nominee for DTC,
on the security register maintained under the
Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in
DTC with respect to such Note (the
"Participants") to act as agent or agents for
such owner in connection with the book-entry
system maintained by DTC and DTC will record
in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such
beneficial owner in such Note in the account
of such Participants. The ownership interest
of such beneficial owner in such Note will be
recorded through the records of such
Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accompanied by book entries made by DTC and,
in turn, by Participants
B-4
<PAGE>
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferors and transferees of
such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice
of consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes
having the same Terms and for which interest
has been paid to the same date, (ii) a date,
occurring at least thirty days after such
written notice is delivered and at least
thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a
single replacement Global Security and (iii)
a new CUSIP number to be assigned to such
replacement Global Security. Upon receipt of
such a notice, DTC will send to its
Participants (including the Trustee) a
written reorganization notice to the effect
that such exchange will occur on such date.
Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such
exchange date and the new CUSIP number and
stating that, as of such exchange date, the
CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Securities for a single
Global Security bearing the new CUSIP number
and a new Interest Accrual Date, and the
CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and
not immediately reassigned. Notwithstanding
the foregoing, if the Global Securities to be
exchanged exceed $___,000,000 in aggregate
principal amount, one Global Security will be
authenticated
B-5
<PAGE>
and issued to represent each $___,000,000,
principal amount of the exchanged Global
Security and an additional Global Security
will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date
from nine months to 30 years from its date of
issue.
Notice of The Trustee will give notice to DTC
Redemption and prior to each Redemption Date or
Repayment Dates: Repayment Date (as specified in the Note), if
any, at the time and in the manner set forth
in the Letter of Representation.
Denominations: Book-Entry Notes will be issued in principal
amounts of $___,000 or an integral multiple
of $1,000 in excess thereof. Global
Securities will be denominated in principal
amounts not in excess of $___,000,000. If
one or more Book-Entry Notes having an
aggregate principal amount in excess of
$___,000,000 would, but for the preceding
sentence, be represented by a single Global
Security, then one Global Security will be
issued to represent each $___,000,000
principal amount of such Book-Entry Note or
Notes and an additional Global Security will
be issued to represent any remaining
principal amount of such Book-Entry Note or
Notes. In such a case, each of the Global
Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP
number.
Interest: GENERAL. Interest on each Book-Entry Note
will accrue from the Interest Accrual Date of
the Global Security representing such Note.
Unless otherwise specified therein, each
payment of interest on a Book-Entry Note will
include interest accrued to but excluding the
Interest Payment
B-6
<PAGE>
Date; provided that in the case of Floating
Rate Notes with respect to which the Interest
Reset Period is daily or weekly, interest
payable on any Interest Payment Date [(other
than interest payable on any date on which
principal thereof is payable, and, if the
Note is a Book-Entry Gap Note (as defined
below), other than interest payable on the
first Interest Payment Date after the
Original Issue Date thereof)] will include
interest accrued through and including the
Record Date immediately preceding the
Interest Payment Date, except that at
maturity or earlier redemption or repayment,
the interest payable will include interest
accrued to, but excluding, the Maturity Date
or the date of redemption or repayment, as
the case may be. Interest payable at the
maturity [or upon redemption or repayment] of
a Book-Entry Note will be payable to the
person to whom the principal of such Note is
payable. Standard & Poor's Corporation will
use the information received in the pending
deposit message described under Settlement
Procedure "C" below in order to include the
amount of any interest payable and certain
other information regarding the related
Global Security in the appropriate weekly
bond report published by Standard & Poor's
Corporation.
RECORD DATES. The Record Date with respect
to any Interest Payment Date shall be the
date fifteen calendar days immediately
preceding such Interest Payment Date.
FIXED RATE BOOK-ENTRY NOTES. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on
Fixed Rate Book-Entry Notes [, other than
Amortizing Notes,] will be made semiannually
on _________ ___ and ____________ ___ of each
year, and at
B-7
<PAGE>
maturity or upon any earlier redemption or
repayment [and principal and interest
payments on Book-Entry Amortizing Notes will
be made semiannually on _______ ___ and
__________ ___ of each year or quarterly on
__________ ___, _____ __, ________ __ and
__________ __ of each year, and at maturity
(or any redemption or repayment date)];
PROVIDED, HOWEVER, that in the case of a
Fixed Rate Book-Entry Note issued between a
Record Date and an Interest Payment Date or
on an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding
Record Date. If any Interest Payment Date
for a Fixed Rate Book-Entry Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date.
FLOATING RATE BOOK-ENTRY NOTES. Interest
payments will be made on Floating Rate
Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a
daily, weekly or monthly Interest Reset Date,
on the third Wednesday of each month or on
the third Wednesday of ________, ________,
__________ and _________, as specified
pursuant to Settlement Procedure "A" below;
in the case of Floating Rate Book-Entry Notes
with a quarterly Interest Reset Date, on the
third Wednesday of ________, ________,
____________ and __________ of each year; in
the case of Floating Rate Book-Entry Notes
with a semiannual Interest Reset Date, on the
third Wednesday of the two months specified
pursuant to Settlement
B-8
<PAGE>
Procedure "A" below; and in the case of
Floating Rate Book-Entry Notes with an annual
Interest Reset Date, on the third Wednesday
of the month specified pursuant to Settlement
Procedure "A" below; PROVIDED HOWEVER, that
if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day
that is not a Business Day with respect to
such Floating Rate Book-Entry Notes, such
Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the
case of a LIBOR Note if such Business Day is
in the next succeeding calendar month, such
Interest Payment Date will be the immediately
preceding Business Day; and PROVIDED,
FURTHER, that in the case of a Floating Rate
Book-Entry Note issued between a Record Date
and the related Interest Payment Date (a
"Book-Entry Gap Note"), the first interest
payment will be made on the Interest Payment
Date following the next succeeding Record
Date, [and in such case, notwithstanding the
fact that an Interest Reset Date may occur
prior to such Interest Payment Date, the
Initial Interest Rate shall remain in effect
until the first Interest Reset Date occurring
on or subsequent to such Interest Payment
Date.]
NOTICE OF INTEREST PAYMENT AND RECORD DATES.
On the first Business Day of ________,
________, ________ and _________ of each
year, the Trustee will deliver to the Company
and DTC a written list of Record Dates and
Interest Payment Dates that will occur with
respect to Book-Entry Notes during the
six-month period beginning on such first
Business Day. Promptly after each date upon
which interest is determined for Floating
Rate Notes issued in book-entry form, the
Calculation Agent will notify the Company,
the Trustee and Standard &
B-9
<PAGE>
Poor's Corporation of the interest rates
determined on such dates.
Calculation of FIXED RATE BOOK-ENTRY NOTES.
Interest: Interest on Fixed Rate Book-Entry Notes
(including interest for partial periods) will
be calculated on the basis of a year of
twelve thirty-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest
rates on Floating Rate Book-Entry Notes will
be determined as set forth in the form of
such Notes. Interest on Floating Rate
Book-Entry Notes will be calculated on the
basis of actual days elapsed and a year of
360 days, except that, in the case of
Treasury Rate Notes, interest will be
calculated on the basis of the actual number
of days in the year.
Payments of PAYMENTS OF INTEREST ONLY.
Principal and Promptly after each Record Date,
Interest: the Trustee will deliver to the Company and
DTC a written notice specifying by CUSIP
number the amount of interest to be paid on
each Global Security [other than an
Amortizing Note] on the following Interest
Payment Date (other than an Interest Payment
Date coinciding with maturity or any earlier
redemption or repayment date) and the total
of such amounts. DTC will confirm the amount
payable on each such Global Security on such
Interest Payment Date by reference to the
daily bond reports published by Standard &
Poor's Corporation. [In the case of
Amortizing Notes, the Trustee will provide
separate written notice to the Company and to
DTC prior to each Interest Payment Date at
the time and in the manner set forth in the
Letter of Representation.] The Company will
pay to the Trustee, as paying agent, the
total amount of interest due on such Interest
Payment Date [(and, in the case of an
Amortizing Note,
B-10
<PAGE>
principal and interest)] (other than at
maturity), and the Trustee will pay such
amount to DTC at the times and in the manner
set forth below under "Manner of Payment."
PAYMENTS AT MATURITY OR UPON REDEMPTION OR
REPAYMENT. On or about the first Business
Day of each month, the Trustee will deliver
to the Company and DTC a written list of
principal and interest to be paid on each
Global Security [other than an Amortizing
Note] maturing either at maturity or on a
redemption or repayment date in the following
month. The Company and DTC will confirm the
amounts of such principal and interest
payments with respect to each such Global
Security on or about the fifth Business Day
preceding the Maturity Date or redemption or
repayment date of such Global Security. [In
the case of Amortizing Notes, the Trustee
will provide separate written notice to the
Company and to DTC prior to the Maturity Date
and any redemption or repayment date, as the
case may be, at the times and in the manner
set forth in the Letter of Representation.]
The Company will pay to the Trustee, as the
paying agent, the principal amount of such
Global Security, together with interest due
at such Maturity Date or redemption or
repayment date. The Trustee will pay such
amounts to DTC at the times and in the manner
set forth below under "Manner of Payment."
PAYMENTS NOT ON BUSINESS DAYS. If any
Interest Payment Date or the Maturity Date or
redemption or repayment date of a Global
Security representing Fixed Rate Book-Entry
Notes is not a Business Day, the payment due
on such day shall be made on the next
succeeding Business Day and no interest shall
accrue on such
B-11
<PAGE>
payment for the period from and after such
Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may
be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date
of a Global Security representing a Floating
Rate Book-Entry Note would otherwise fall on
a day that is not a Business Day, the payment
due on such day shall be made on the next
succeeding day that is a Business Day with
respect to such Notes with the same effect as
if such Business Day were the Interest
Payment Date, Maturity Date or date of
redemption or repayment, as the case may be,
except that, in the case of Book-Entry LIBOR
Notes, if such Business Day is in the next
succeeding calendar month, such Interest
Payment Date or redemption or repayment date
shall be the immediately preceding day that
is a Business Day with respect to such
Book-Entry LIBOR Notes. Promptly after
payment to DTC of the principal and interest
due on the Maturity Date or redemption or
repayment date of such Global Security, the
Trustee will cancel such Global Security in
accordance with the terms of the Indenture
and deliver it to the Company with a
certificate of cancellation. [Upon request/
On the first Business Day of each month], the
Trustee will deliver to the Company a written
statement indicating the total principal
amount of outstanding Book-Entry Notes as of
the immediately preceding Business Day.
MANNER OF PAYMENT. The total amount of any
principal and interest due on Global
Securities on any Interest Payment Date or at
maturity or upon redemption or repayment
shall be paid by the Company to the Trustee
in funds available for immediate use by the
Trustee as of 9:30 a.m. (New York City time)
on such date. The Company
B-12
<PAGE>
will make such payment on such Global
Securities by wire transfer to the Trustee or
by instructing the Trustee to withdraw funds
from an account maintained by the Company at
the Trustee. The Company will confirm such
instructions in writing to the Trustee.
Prior to 10 a.m. (New York City time) on each
Maturity Date or redemption or repayment date
or, if either such date is not a Business
Day, as soon as possible thereafter,
following receipt of such funds from the
Company the Trustee will pay by separate wire
transfer (using Fedwire message entry
instructions in a form previously specified
by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC,
in funds available for immediate use by DTC,
each payment of principal (together with
interest thereon) due on Global Securities on
any Maturity Date or redemption or repayment
date. On each Interest Payment Date or, if
any such date is not a Business Day, as soon
as possible thereafter, interest payments
[and, in the case of Amortizing Notes,
interest and principal payments] shall be
made to DTC in same day funds in accordance
with existing arrangements between the
Trustee and DTC. Thereafter on each such
date, DTC will pay, in accordance with its
SDFS operating procedures then in effect,
such amounts in funds available for immediate
use to the respective Participants in whose
names the Book-Entry Notes represented by
such Global Securities are recorded in the
book-entry system maintained by DTC. Neither
the Company nor the Trustee shall have any
responsibility or liability for the payment
by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes
required under applicable law to be withheld
from any interest
B-13
<PAGE>
payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly
to the beneficial owner of such Note.
Preparation of If any order to purchase a
Pricing Book-Entry Note is accepted by or
Supplement: on behalf of the Company, the Company will
prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such
Note and will arrange to file 10 copies of
such Pricing Supplement with the Commission
in accordance with the applicable paragraph
of Rule 424(b) under the Act and will deliver
the number of copies of such Pricing
Supplement to the relevant Agent as such
Agent shall request by the close of business
on the following Business Day. The relevant
Agent will cause such Pricing Supplement to
be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing
Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated
Pricing Supplements, and the Prospectuses to
which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of
the Global Security representing such Note
shall constitute "settlement" with respect to
such Note. All orders accepted by the
Company will be settled on the fifth Business
Day following such acceptance pursuant to the
timetable for settlement set forth below
unless the Company and the purchaser agree to
settlement on
B-14
<PAGE>
another day, which shall be no earlier than
the next Business Day.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the Company
to or through an Agent shall be as follows
(unless otherwise specified pursuant to a
Terms Agreement, as defined in the
Agreement):
A. The relevant Agent will advise the
Company by facsimile transmission or
other acceptable means that such Note is
a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate
Book-Entry Note, the Interest Rate,
whether such Note will pay interest
annually or semi-annually [and
whether such Note is an Amortizing
Note and, if so, the Amortization
Schedule,] or, in the case of a
Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at
such time), Interest Payment
Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
B-15
<PAGE>
4. Redemption or repayment provisions,
if any.
5. Settlement date and time.
6. Price.
7. Agent's commission, if any,
determined as provided in the
Agreement.
8. Net proceeds to the Company.
9. Whether the Note is an OID Note,
and if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
10. Any other applicable Terms.
B. The Company will advise the Trustee by
facsimile transmission or other
acceptable means of the information set
forth in Settlement Procedure "A" above.
The [Company/Trustee] will then assign a
CUSIP number to the Global Security
representing such Note and will notify
the [Company/Trustee] and the Agent of
such CUSIP number by telephone or
electronic transmission (confirmed in
writing) as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, the
relevant Agent and Standard & Poor's
Corporation:
B-16
<PAGE>
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment Date
for such Note, the number of days
by which such date succeeds the
related DTC Record Date (which in
the case of Floating Rate Notes
which reset daily or weekly, shall
be the date five calendar days
immediately preceding the
applicable Interest Payment Date
and, in the case of all other
Notes, shall be the Record Date as
defined in the Note) and, if known,
the amount of interest payable on
such Initial Interest Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time)
[and whether such Note is an
Amortizing Note (by an appropriate
notation in the comments field of
DTC's Participant Terminal
System)].
5. The DTC participant number of the
institution through which the
Company will hold the Book-Entry
Note.
D. The Trustee will complete and
authenticate the Global Security
representing such Note in accordance
with the terms of the written order of
the Company then in effect.
B-17
<PAGE>
E. DTC will credit such Note to the
Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to the Trustee's participant
account and credit such Note to the
relevant Agent's participant account and
(ii) debit such Agent's settlement
account and credit the Trustee's
settlement account for an amount equal
to the price of such Note less such
Agent's commission, if any. The entry
of such a deliver order shall constitute
a representation and warranty by the
Trustee to DTC that (a) the Global
Security representing such Book-Entry
Note has been issued and authenticated
and (b) the Trustee is holding such
Global Security pursuant to the
Medium-Term Note Certificate Agreement
between the Trustee and DTC.
G. Unless the relevant Agent purchased such
Note as principal, such Agent will enter
an SDFS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to such
Agent's participant account and credit
such Note to the participant accounts of
the Participants with respect to such
Note and (ii) to debit the settlement
account of such Participants and credit
the settlement account of such Agent for
an amount equal to the price of such
Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement
B-18
<PAGE>
Procedures "F" and "G" will be settled
in accordance with SDFS operating
procedures in effect on the settlement
date.
I. The Trustee, upon confirming receipt of
such funds, will credit to the U.S.
dollar account of the Company maintained
at a bank in New York City, notified to
the Trustee from time to time, in funds
available for immediate use in the
amount transferred to the Trustee, in
accordance with Settlement Procedure
"F".
J. Unless the relevant Agent purchased such
Note as principal, such Agent will
confirm the purchase of such Note to the
purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through
DTC's institutional delivery system or
by mailing a written confirmation to
such purchaser.
K. Monthly, the Trustee will send to the
Company a statement setting forth the
principal amount of Notes Outstanding as
of that date under the Indenture and
setting forth a brief description of any
sales of which the Company has advised
the Trustee but which have not yet been
settled.
Settlement For sales by the Company of
Procedures Book-Entry Notes to or through an
Timetable: Agent (unless otherwise specified pursuant to
a Terms Agreement) for settlement on the
first Business Day after the sale date,
Settlement Procedures "A" through "J" set
forth above shall be completed as soon as
possible but not later than the
B-19
<PAGE>
respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later
than 11:00 a.m., 12 noon and 2:00 p.m.,
respectively, on the first Business Day after
the sale date. If the Initial Interest Rate
for a Floating Rate Book-Entry Note has not
been determined at the time that Settlement
Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no
later than 12 noon and 2:00 p.m.,
respectively, on the second Business Day
before the settlement date. Settlement
Procedure "H" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee, after
receiving notice from the Company or the
Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
p.m. on the
B-20
<PAGE>
Business Day immediately preceding the
scheduled settlement date.
Failure to If the Trustee fails to enter an
Settle: SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to
the Trustee's participant account, provided
that the Trustee's participant account
contains a principal amount of the Global
Security representing such Note that is at
least equal to the principal amount to be
debited. If a withdrawal message is
processed with respect to all the Book-Entry
Notes represented by a Global Security, the
Trustee will mark such Global Security
"cancelled," make appropriate entries in the
Trustee's records and send such cancelled
Global Security to the Company. The CUSIP
number assigned to such Global Security
shall, in accordance with CUSIP Service
Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal
message is processed with respect to one or
more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee
will exchange such Global Security for two
Global Securities, one of which shall
represent such Book-Entry Note or Notes and
shall be cancelled immediately after issuance
and the other of which shall represent the
remaining Book-Entry Notes previously
represented by the surrendered Global
Security and shall bear the CUSIP number of
the surrendered Global Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser
B-21
<PAGE>
thereof (or a person, including an indirect
participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn,
the relevant Agent may enter SDFS deliver
orders through DTC's Participant Terminal
System reversing the orders entered pursuant
to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any action in
accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with
respect to one or more, but not all, of the
Book-Entry Notes to have been represented by
a Global Security, the Trustee will provide,
in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance
of a Global Security representing the
Book-Entry Notes to be represented by such
Global Security and will make appropriate
entries in its records.
Posting Rates The Company and the Agents will
by Company: discuss from time to time the rates of
interest per annum to be borne by and the
maturity of Securities that may be sold as a
result of the solicitation of offers by an
Agent. The Company may establish a fixed set
of interest rates and maturities for an
offering period ("posting). If the Company
decides to change already posted rates, it
will promptly advise the Agents to suspend
solicitation of offers until the new posted
rates have been established with the Agent.
Trustee Not To Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own
funds in connection with any
B-22
<PAGE>
payments to the Company, the Agents, DTC or
any holders of Notes, it being understood by
all parties that payments made by the Trustee
to the Company, the Agents, DTC or any
holders of Notes shall be made only to the
extent that funds are provided to the Trustee
for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its authentication
by the Trustee. Each Certificated Note will
bear an Original Issue Date, which will be
(i) with respect to an original Certificated
Note (or any portion thereof), its original
issuance date (which will be the settlement
date) and (ii) with respect to any
Certificated Note (or any portion thereof)
issued subsequently upon exchange of a
Certificated Note, or in lieu of a destroyed,
lost or stolen Certificated Note, the
original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note. [No Note issued between a
Record Date and the related Interest Payment
Date shall be issued as a Certificated Note
within the meaning of the Indenture.]
Registration: Certificated Notes will be issued only in
fully registered form without coupons.
Transfers and A Certificated Note may be presented
Exchanges: for transfer or exchange at the principal
corporate trust office of the Trustee.
Certificated Notes will be exchangeable for
other Certificated Notes having identical
terms but different authorized
B-23
<PAGE>
denominations without service charge.
Certificated Notes will not be exchangeable
for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date
from nine months to 30 years from its date of
issue.
Currency: The currency denomination with respect to any
Certificated Note and the currency of payment
of interest and principal with respect to any
such Certificated Note shall be as set forth
therein and in the applicable pricing
supplement.
Denominations: Unless otherwise provided in a Prospectus
Supplement, the denomination of any
Certificated Note will be a minimum of
$___,000 (or in the case of Notes not
denominated in U.S. dollars, the equivalent
thereof in the applicable foreign currency or
composite currency, rounded down to the
nearest 1,000 units of such foreign currency
or composite currency) or any amount in
excess thereof that is an integral multiple
of $1,000 (or in the case of Notes not
denominated in U.S. dollars, 1,000 units of
such foreign currency or composite currency).
Interest: GENERAL. Interest on each Certificated Note
will accrue from the Original Issue Date of
such Note for the first interest period and
from the most recent date to which interest
has been paid for all subsequent interest
periods. Unless otherwise specified therein,
each payment of interest on a Certificated
Note will include interest accrued to but
excluding the Interest Payment Date; provided
that in the case of Floating Rate Notes with
respect to which the Interest Reset Period is
daily or weekly, interest payable on any
Interest Payment Date [(other than interest
payable on any date on which principal
thereof is payable,
B-24
<PAGE>
and, if the Note is a Certificated Gap Note
(as defined below), other than interest
payable on the first Interest Payment Date
after the Original Issue Date thereof)] will
include interest accrued through and
including the Record Date immediately
preceding the Interest Payment Date, except
that at maturity or earlier redemption or
repayment, the interest payable will include
interest accrued to, but excluding, the
Maturity Date or the date of redemption or
repayment, as the case may be.
RECORD DATES. The Record Date with respect
to any Interest Payment Date in respect of a
Certificated Note shall be the date fifteen
calendar days immediately preceding such
Interest Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless
otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on
Fixed Rate Certificated Notes [, other than
Amortizing Notes,] will be made semiannually
on __________________ and
____________________ __ of each year (or, if
so indicated in such Note, annually on
______________________ __ of each year), and
at maturity or upon any earlier redemption or
repayment [and principal and interest
payments on Certificated Amortizing Notes
will be made semiannually on ________________
__ and __________________ __ of each year or
quarterly on ____________ ____, _____________
___ ___________________ and
___________________ ___ of each year, and at
maturity (or any redemption or repayment
date)]; PROVIDED, HOWEVER, that in the case
of a Fixed Rate Certificated Note issued
between a Record Date and an Interest Payment
Date or on an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date
B-25
<PAGE>
following the next succeeding Record Date.
FLOATING RATE CERTIFICATED NOTES. Interest
payments will be made on Floating Rate
Certificated Notes monthly, quarterly,
semiannually or annually. Unless otherwise
specified pursuant to Settlement Procedure
"A" below, interest will be payable, in the
case of Floating Rate Certificated Notes with
a daily, weekly or monthly Interest Reset
Date, on the third Wednesday of each month or
on the third Wednesday of ___________,
_________, _______________ and
______________, as specified pursuant to
Settlement Procedure "A" below; in the case
of Floating Rate Certificated Notes with a
quarterly Interest Reset Date, on the third
Wednesday of __________, _________,
_______________ and ______________ of each
year; in the case of Floating Rate
Certificated Notes with a semiannual Interest
Reset Date, on the third Wednesday of the two
months specified pursuant to Settlement
Procedure "A" below; and in the case of
Floating Rate Certificated Notes with an
annual Interest Reset Date, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED,
HOWEVER, that if an Interest Payment Date for
Floating Rate Certificated Notes would
otherwise be a day that is not a Business Day
with respect to such Floating Rate
Certificated Notes, such Interest Payment
Date will be the next succeeding Business Day
with respect to such Floating Rate
Certificated Notes, except in the case of a
LIBOR Note if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the immediately
preceding Business Day; and PROVIDED,
FURTHER, that in the case of a Floating Rate
Certificated Note
B-26
<PAGE>
issued between a Record Date and the related
Interest Payment Date (a "Certificated Gap
Note"), the first interest payment will be
made on the Interest Payment Date following
the next succeeding Record Date,[ and in such
case, notwithstanding the fact that an
Interest Reset Date may occur prior to such
Interest Payment Date, the Initial Interest
Rate shall remain in effect until the first
Interest Reset Date occurring on or
subsequent to such Interest Payment Date.]
NOTICE OF INTEREST PAYMENT AND RECORD DATES.
On the first Business Day of ____________,
___________, ___________ and _________ of
each year, the Trustee will deliver to the
Company a written list of Record Dates and
Interest Payment Dates that will occur with
respect to Certificated Notes during the
six-month period beginning on such first
Business Day. Promptly after each date upon
which interest is determined for Floating
Rate Notes issued in certificated form, the
Calculation Agent will notify the Company and
the Trustee of the interest rates determined
on such dates.
Calculation of FIXED RATE CERTIFICATED NOTES.
Interest: Interest on Fixed Rate Certificated Notes
(including interest for partial periods) will
be calculated on the basis of a year of
twelve thirty-day months.
FLOATING RATE CERTIFICATED NOTES. Interest
rates on Floating Rate Certificated Notes
will be determined as set forth in the form
of such Notes. Interest on Floating Rate
Certificated Notes will be calculated on the
basis of actual days elapsed and a year of
360 days, except that, in the case of
Treasury Rate Notes, interest will be
calculated on the
B-27
<PAGE>
basis of the actual number of days in the
year.
Payments of The Company will pay to the Trustee,
Principal and as the paying agent, the principal
Interest: amount of each Certificated Note [(other than
an Amortizing Note)], together with interest
due thereon, at its Maturity Date or upon
redemption or repayment of such Note in funds
available for immediate use by the Trustee.
[In the case of an Amortizing Note, the
Company will pay to the Trustee, as paying
agent, the principal amount due on such Note
on such date, together with interest due
thereon, at its Maturity Date or upon
redemption or repayment of such Note in funds
available for immediate use by the Trustee.]
The Trustee will pay such amount to the
holder of such Note at its Maturity Date or
upon redemption or repayment of such Note
upon presentation and surrender of such Note
to the Trustee. Such payment, together with
payment of interest due at maturity or upon
redemption or repayment, will be made in
funds available for immediate use by the
holder of such Note. Promptly after such
presentation and surrender, the Trustee will
cancel such Certificated Note in accordance
with the terms of the Indenture and deliver
it to the Company with a certificate of
cancellation. Unless otherwise specified in
the applicable Pricing Supplement, all
interest payments on a Certificated Note [or,
in the case of a Certificated Amortizing
Note, payments of principal and interest]
(other than interest [(or interest and
principal)] due at maturity or upon
redemption or repayment) will be made by
check drawn on the Trustee (or another person
appointed by the Trustee) and mailed by the
Trustee to the person entitled thereto as
provided in such Note and the Indenture;
PROVIDED, HOWEVER, that
B-28
<PAGE>
(i) the holder of $___,000,000 or more of
Notes having the same Interest Payment Date
will be entitled to receive payment by wire
transfer of immediately available funds and
(ii) unless otherwise specified in the
applicable Pricing Supplement or unless
alternative arrangements are made, payments
on Notes in a currency other than U.S.
dollars will be made by wire transfer of
immediately available funds to an account
maintained by the payee with a bank located
outside the United States and, with respect
to clauses (i) and (ii) above, the holder of
such Notes will provide the Trustee with
appropriate and timely wire transfer
instructions.
Promptly after each Record Date, the Trustee
will deliver to the Company a written notice
specifying the amount of interest to be paid
on each Certificated Note [other than an
Amortizing Note] on the following Interest
Payment Date (other than an Interest Payment
Date coinciding with maturity or any earlier
redemption or repayment date) and the total
of such amounts. [In the case of Amortizing
Notes, the Trustee will provide separate
written notice to the Company specifying the
amount of interest and principal to be paid
on each Amortizing Note on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with maturity or any
earlier redemption or repayment date) and the
total of such amounts.] Interest at maturity
or upon redemption or repayment will be
payable to the person to whom the payment of
principal is payable. On or about the first
Business Day of each month, the Trustee will
deliver to the Company a written list of
principal and interest, to the extent
ascertainable, to be paid on each
Certificated Note [including Amortizing
Notes] maturing or to be
B-29
<PAGE>
redeemed or repaid in the following month.
The Trustee will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by applicable
law.
If any Interest Payment Date or the Maturity
Date or redemption or repayment date of a
Fixed Rate Certificated Note is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment for the period from and after such
Interest Payment Date, Maturity Date or
redemption or repayment date, as the case may
be. If any Interest Payment Date or the
Maturity Date or redemption or repayment date
of a Floating Rate Certificated Note would
otherwise fall on a day that is not a
Business Day with respect to such Note, the
payment due on such day shall be made on the
next succeeding day that is a Business Day
with respect to such Note with the same
effect as if such Business Day were the
stated Interest Payment Date, Maturity Date
or date of redemption or repayment, as the
case may be, except that, in the case of
Certificated LIBOR Notes, if such Business
Day is in the next succeeding calendar month,
such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the
immediately preceding day that is a Business
Day with respect to such Certificated LIBOR
Notes.
Preparation of If any order to purchase a
Pricing Certificated Note is accepted by or
Supplement: on behalf of the Company, the Company will
prepare a Pricing Supplement reflecting the
terms of such Note and will arrange to file
10 copies of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and
will deliver the number of copies of such
Pricing
B-30
<PAGE>
Supplement to the relevant Agent as such
Agent shall request by the close of business
on the following Business Day. The relevant
Agent will cause such Pricing Supplement to
be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing
Supplement will affix the Pricing Supplement
to Prospectuses prior to their use. Outdated
Pricing Supplements, and the Prospectuses to
which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for an
authenticated Certificated Note delivered to
the relevant Agent and such Agent's delivery
of such Note against receipt of immediately
available funds shall constitute "settlement"
with respect to such Note. All orders
accepted by the Company will be settled on
the fifth Business Day following such
acceptance pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on
another day, which shall be no earlier than
the next Business Day.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the Company to
or through an Agent shall be as follows
(unless otherwise specified pursuant to a
Terms Agreement):
A. The relevant Agent will advise the
Company by facsimile transmission or
other acceptable means that such Note is
a Certificated Note and of the following
settlement information:
B-31
<PAGE>
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal
and interest.
3. Taxpayer identification number of
the Registered Owner (if
available).
4. Currency or currency unit,
principal amount and, if different,
currency in which payments of
principal and interest may be made.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the Interest
Rate, whether such Note will pay
interest annually or semi-annually
[and whether such Note is an
Amortizing Note and, if so, the
Amortization Schedule,] or, in the
case of a Floating Rate
Certificated Note, the Initial
Interest Rate (if known at such
time), Interest Payment Date(s),
Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions,
if any.
B-32
<PAGE>
8. Settlement date and time.
9. Price.
10. Agent's commission, if any,
determined as provided in the
Agreement.
11. Denominations.
12. Net proceeds to the Company.
13. Whether the Note is an OID Note,
and if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual
period OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
14. Any other applicable Terms.
B. The Company will advise the Trustee by
facsimile transmission or other
acceptable means of the information set
forth in Settlement Procedure "A" above.
C. The Company will have delivered to the
Trustee a pre-printed four-ply packet
for such Note, which packet will contain
the following documents in forms that
have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer
confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
B-33
<PAGE>
D. The Trustee will complete such Note and
authenticate such Note and deliver it
(with the confirmation) and Stubs One
and Two to the relevant Agent, and such
Agent will acknowledge receipt of the
Note by stamping or otherwise marking
Stub One and returning it to the
Trustee. Such delivery will be made
only against such acknowledgment of
receipt and evidence that instructions
have been given by such Agent for
payment to the account of the Company
maintained at the Trustee, New York, New
York (or, with respect to Notes payable
in a Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company notified to
the relevant Agent from time to time in
writing) in funds available for
immediate use, of an amount equal to the
price of such Note less such Agent's
commission, if any. In the event that
the instructions given by such Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of such Agent an amount of
immediately available funds equal to the
amount of such payment made.
E. Unless the relevant Agent purchased such
Note as principal, such Agent will
deliver such Note (with confirmation) to
the customer against payment in
immediately available funds. Such Agent
will obtain the acknowledgment of
receipt of such Note by retaining Stub
Two.
F. The Trustee will send Stub Three to the
Company by first-class
B-34
<PAGE>
mail. Periodically, the Trustee will
also send to the Company a statement
setting forth the principal amount of
the Notes outstanding as of that date
under the Indenture and setting forth a
brief description of any sales of which
the Company has advised the Trustee but
which have not yet been settled.
Settlement For sales by the Company of
Procedures Certificated Notes to or through an
Timetable: Agent (unless otherwise specified pursuant to
a Terms Agreement), Settlement Procedures "A"
through "F" set forth above shall be
completed on or before the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 p.m. on day before
settlement date
B 3:00 p.m. on day before
settlement date
C-D 2:15 p.m. on settlement
date
E 3:00 p.m. on settlement
date
F 5:00 p.m. on settlement
date
Failure to If a purchaser fails to accept
Settle: delivery of and make payment for any
Certificated Note, the relevant Agent will
notify the Company and the Trustee by
telephone and return such Note to the
Trustee. Upon receipt of such notice, the
Company will immediately wire transfer to the
account of such Agent an amount equal to the
amount previously credited thereto in respect
of such Note. Such wire transfer will be
made on the settlement date, if possible, and
in any event not later than the Business Day
following the settlement date. If the
failure shall have occurred for any reason
other than a
B-35
<PAGE>
default by such Agent in the performance of
its obligations hereunder and under the
Agreement, then the Company will reimburse
such Agent or the Trustee, as appropriate, on
an equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company (such
reimbursement for loss of the use of such
funds to be based on the federal funds
effective rate then in effect). Immediately
upon receipt of the Certificated Note in
respect of which such failure occurred, the
Trustee will mark such Note "cancelled", make
appropriate entries in the Trustee's records
and send such Note to the Company.
Posting Rates The Company and the Agents will
by Company discuss from time to time the rates of
interest per annum to be borne by and the
maturity of Securities that may be sold as a
result of the solicitation of offers by an
Agent. The Company may establish a fixed set
of interest rates and maturities for an
offering period ("posting"). If the Company
decides to change already posted rates, it
will promptly advise the Agents to suspend
solicitation of offers until the new posted
rates have been established with the Agent.
Trustee Not to Nothing herein shall be deemed to
Risk Funds: require the Trustee to risk or expend its own
funds in connection with any payments to the
Company, the Agents or any holders of Notes,
it being understood by all parties that
payments made by the Trustee to the Company,
the Agents or any holders of Notes shall be
made only to the extent that funds are
provided to the Trustee for such purpose.
B-36
<PAGE>
Exhibit 4.2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CRANE CO.
and
THE FIRST NATIONAL BANK OF CHICAGO,
A National Banking Association
Trustee
Indenture
Dated as of __________ __, 1994
__________
Subordinated Debt Securities
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
__________
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorization of Indenture . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined . . . . . . . . . . . . . . 1
Board of Directors. . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . 2
Commission. . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office. . . . . . . . . . . . . . 2
covenant defeasance . . . . . . . . . . . . . . . 2
defeasance. . . . . . . . . . . . . . . . . . . . 2
Event of Default. . . . . . . . . . . . . . . . . 2
Holder, Holder of Securities,
Securityholder. . . . . . . . . . . . . . . . . 2
Indenture . . . . . . . . . . . . . . . . . . . . 3
interest. . . . . . . . . . . . . . . . . . . . . 3
Issuer. . . . . . . . . . . . . . . . . . . . . . 3
mandatory sinking fund payment. . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . 3
Opinion of Counsel. . . . . . . . . . . . . . . . 3
optional sinking fund payment . . . . . . . . . . 3
Original Issue Date . . . . . . . . . . . . . . . 3
Original Issue Discount Security. . . . . . . . . 3
Outstanding . . . . . . . . . . . . . . . . . . . 3
person. . . . . . . . . . . . . . . . . . . . . . 4
principal . . . . . . . . . . . . . . . . . . . . 4
record date . . . . . . . . . . . . . . . . . . . 4
Responsible Officer . . . . . . . . . . . . . . . 4
Security or Securities. . . . . . . . . . . . . . 5
Senior Indebtedness . . . . . . . . . . . . . . . 5
sinking fund payment date . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . 6
i
<PAGE>
Page
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U.S. Government Obligations . . . . . . . . . . . 6
vice president. . . . . . . . . . . . . . . . . . 6
Yield to Maturity . . . . . . . . . . . . . . . . 6
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . 7
SECTION 2.2. Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . . . 7
SECTION 2.3. Amount Unlimited; Issuable in Series. . . . . . . 7
SECTION 2.4. Authentication and Delivery of
Securities. . . . . . . . . . . . . . . . . . . 9
SECTION 2.5. Execution of Securities . . . . . . . . . . . . . 10
SECTION 2.6. Certificate of Authentication . . . . . . . . . . 11
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest. . . . . . . . 11
SECTION 2.8. Registration, Transfer and Exchange . . . . . . . 12
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . . 13
SECTION 2.10. Cancellation of Securities;
Destruction Thereof . . . . . . . . . . . . . . 14
SECTION 2.11. Temporary Securities. . . . . . . . . . . . . . . 15
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1. Payment of Principal and Interest . . . . . . . . 16
SECTION 3.2. Offices for Payments, etc.. . . . . . . . . . . . 16
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee . . . . . . . . . . . . . . . 16
SECTION 3.4. Paying Agents . . . . . . . . . . . . . . . . . . 16
SECTION 3.5. Certificate of the Issuer . . . . . . . . . . . . 18
SECTION 3.6. Securityholders Lists . . . . . . . . . . . . . . 18
SECTION 3.7. Reports by the Issuer . . . . . . . . . . . . . . 18
SECTION 3.8. Reports by the Trustee. . . . . . . . . . . . . . 18
ii
<PAGE>
Page
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default. . . . . . . . . 19
SECTION 4.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt. . . . . . . . . . . . . 22
SECTION 4.3. Application of Proceeds . . . . . . . . . . . . . 25
SECTION 4.4. Suits for Enforcement . . . . . . . . . . . . . . 26
SECTION 4.5. Restoration of Rights on Abandonment
of Proceedings. . . . . . . . . . . . . . . . . 26
SECTION 4.6. Limitations on Suits by
Securityholders . . . . . . . . . . . . . . . . 27
SECTION 4.7. Unconditional Right of
Securityholders to Institute
Certain Suits . . . . . . . . . . . . . . . . . 27
SECTION 4.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.9. Control by Securityholders. . . . . . . . . . . . 28
SECTION 4.10. Waiver of Past Defaults . . . . . . . . . . . . . 29
SECTION 4.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances . . . . . . . . . . . . . . . . . 29
SECTION 4.12. Right of Court to Require Filing
of Undertaking to Pay Costs . . . . . . . . . . 30
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.2. Certain Rights of the Trustee . . . . . . . . . . 32
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof . . . . . . . . 34
SECTION 5.4. Trustee and Agents May Hold
Securities; Collections, etc. . . . . . . . . . 34
SECTION 5.5. Monies Held by Trustee. . . . . . . . . . . . . . 34
SECTION 5.6. Compensation and Indemnification
of Trustee and Its Prior Claim. . . . . . . . . 34
iii
<PAGE>
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SECTION 5.7. Right of Trustee to Rely on
Officers' Certificate, etc. . . . . . . . . . . 35
SECTION 5.8. Persons Eligible for Appointment
as Trustee. . . . . . . . . . . . . . . . . . . 35
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee. . . . . . . . . . . . . . 36
SECTION 5.10. Acceptance of Appointment by
Successor Trustee . . . . . . . . . . . . . . . 37
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . 39
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1. Evidence of Action Taken by
Securityholders . . . . . . . . . . . . . . . . 39
SECTION 6.2. Proof of Execution of Instruments and
of Holding of Securities; Record
Date. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.3. Holders to Be Treated as Owners . . . . . . . . . 40
SECTION 6.4. Securities Owned by Issuer Deemed Not
Outstanding . . . . . . . . . . . . . . . . . . 40
SECTION 6.5. Right of Revocation of Action Taken . . . . . . . 41
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders. . . . . . . . . . . 42
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders. . . . . . . . . . . . . . . 43
SECTION 7.3. Effect of Supplemental Indenture. . . . . . . . . 45
SECTION 7.4. Documents to Be Given to Trustee. . . . . . . . . 45
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . . 45
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1. Issuer may Consolidate, etc., on
Certain Terms. . . . . . . . . . . . . . . . . 45
SECTION 8.2. Successor Corporation Substituted . . . . . . . . 46
SECTION 8.3. Opinion of Counsel to Trustee . . . . . . . . . . 47
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 9.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . 47
SECTION 9.2. Issuer's Option to Effect Defeasance
or Covenant Defeasance. . . . . . . . . . . . . 48
SECTION 9.3. Defeasance and Discharge. . . . . . . . . . . . . 49
SECTION 9.4. Covenant Defeasance . . . . . . . . . . . . . . . 49
SECTION 9.5. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . 50
SECTION 9.6. Application by Trustee of Funds
Deposited for Payment of Securities . . . . . . 52
SECTION 9.7. Repayment of Monies Held by Paying
Agent . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.8. Return of Monies Held By Trustee and
Paying Agent Unclaimed for Three
Years . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.9. Indemnity for U.S. Government
Obligations . . . . . . . . . . . . . . . . . . 53
SECTION 9.10. Reinstatement . . . . . . . . . . . . . . . . . . 53
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability. . . . . . . . . . . . . . 54
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders . . . . . . . . . . . . . . . . . . . . 54
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Page
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SECTION 10.3. Successors and Assigns of Issuer
Bound by Indenture. . . . . . . . . . . . . . . 54
SECTION 10.4. Notices and Demands on Issuer,
Trustee and Securityholders . . . . . . . . . . 54
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein. . . . . . . . . . . . . . . . . 55
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays. . . . . . . . . . . . . . . . . . 57
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939 . . . . . . . . . . . . . . . . . . 57
SECTION 10.8. New York Law to Govern. . . . . . . . . . . . . . 57
SECTION 10.9. Counterparts. . . . . . . . . . . . . . . . . . . 57
SECTION 10.10. Effect of Headings. . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1. Applicability of Article. . . . . . . . . . . . . 57
SECTION 11.2. Notice of Redemption; Partial
Redemptions . . . . . . . . . . . . . . . . . . 57
SECTION 11.3. Payment of Securities Called for
Redemption. . . . . . . . . . . . . . . . . . . 59
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption. . . . . . . . . . . . . . . . . . . 60
SECTION 11.5. Mandatory and Optional Sinking
Funds . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 12.1. Agreement of Subordination. . . . . . . . . . . . 63
SECTION 12.2. Payments to Securityholders . . . . . . . . . . . 64
SECTION 12.3. Subrogation of Securities . . . . . . . . . . . . 66
SECTION 12.4. Authorization by Securityholders. . . . . . . . . 67
SECTION 12.5. Notice to Trustee . . . . . . . . . . . . . . . . 67
SECTION 12.6. Trustee's Relation to Senior
Indebtedness. . . . . . . . . . . . . . . . . . 68
SECTION 12.7. No Impairment of Subordination. . . . . . . . . . 69
SECTION 12.8. Defeasance of this Article Twelve . . . . . . . . 69
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TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 70
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . 70
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 71
vii
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INDENTURE dated as of __________ __, 1994 between CRANE CO., a
Delaware corporation (the "Issuer"), and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured bonds, debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act
<PAGE>
as in force at the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such accounting principles as
are generally accepted at the time of any computation. The words "HEREIN",
"HEREOF" and "HEREUNDER" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section 9.4.
"DEFEASANCE" shall have the meaning set forth in Section 9.3.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.1.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean the registered holder of any Security.
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"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"ISSUER" means Crane Co., a Delaware corporation, and, subject to
Article Eight, its successors and assigns.
"MANDATORY SINKING FUND PAYMENT" shall have the meaning set forth in
Section 11.5.
"OFFICERS' CERTIFICATE" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5, if and to the extent required hereby.
"OPTIONAL SINKING FUND PAYMENT" shall have the meaning set forth in
Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"OUTSTANDING", when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
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(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which monies in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying
agent), PROVIDED that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.1.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors,
4
<PAGE>
any vice chairman of the board of directors, the chairman of the trust
committee, the chairman of the executive committee, any vice chairman of the
executive committee, the president, any vice president, the cashier, the
secretary, the treasurer, any trust officer, any assistant trust officer, any
assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Issuer for money borrowed (including any
indebtedness secured by a mortgage, conditional sales contract or other
lien which is (i) given to secure all or part of the purchase price of
property subject thereto, whether given to the vendor of such property or
to another or (ii) existing on property at the time of acquisition
thereof);
(b) all indebtedness of the Issuer evidenced by notes, debentures,
bonds or other securities;
(c) all lease obligations of the Issuer which are capitalized on the
books of the Issuer in accordance with generally accepted accounting
principles;
(d) all indebtedness of others of the kinds described in any of the
preceding clauses (a) or (b) and all lease obligations of others of the
kind described in the preceding clause (c) assumed by or guaranteed in any
manner by the Issuer or in effect guaranteed by the Issuer through an
agreement to purchase, contingent or otherwise; and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in any of the preceding clauses (a), (b) or (d) and all
renewals or
5
<PAGE>
extensions of lease obligations of the kinds described in any of the
preceding clauses (c) or (d);
unless, in the case of any particular indebtedness, lease, renewal, extension or
refunding, the instrument or lease creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
lease, renewal, extension or refunding is subordinate to any other indebtedness
of the Issuer or is not superior in right of payment to, or is PARI PASSU with,
the Securities. Notwithstanding the foregoing, Senior Indebtedness shall not
include (i) any indebtedness or lease obligation of any kind of the Issuer to
any subsidiary of the Issuer, a majority of the voting stock of which is owned
by the Issuer or (ii) indebtedness for trade payables or constituting the
deferred purchase price of assets or services incurred in the ordinary course of
business.
"SINKING FUND PAYMENT DATE" shall have the meaning set forth in
Section 11.5.
"TRUSTEE" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was originally executed.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 9.1.
"VICE PRESIDENT" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
6
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ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By______________________
Authorized Officer
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
7
<PAGE>
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11 or 11.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
8
<PAGE>
(8) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(10) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(11) any trustees, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such
series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed by
both (a) the Chairman of its Board of Directors, any vice chairman of its Board
of Directors, its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to Section 5.1) shall be fully protected in
relying upon:
(1) the written order of the Issuer referred to above requesting
authentication of the Securities;
(2) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or an
assistant secretary of the Issuer;
(3) an executed supplemental indenture, if any;
9
<PAGE>
(4) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 10.5; and
(5) an Opinion of Counsel, prepared in accordance with Section 10.5,
to the effect that:
(a) the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture;
(b) such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Issuer;
(c) all laws and requirements in respect of the execution and
delivery by the Issuer of the Securities have been complied with; and
(d) such other matters as the Trustee may reasonably request
have been covered.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be signed
on behalf of the Issuer by both (a) the chairman of its Board of Directors, any
vice chairman of its Board of Directors, its president or any vice president and
(b) by its treasurer, any assistant treasurer, its secretary or any assistant
secretary, under its corporate seal which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects
10
<PAGE>
in any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any multiple thereof. The Securities shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is registered at
the close of business on any record
11
<PAGE>
date applicable to a particular series with respect to any interest payment date
for such series shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding any transfer or exchange of such
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Securities for such series are registered at the close of business on a
subsequent record date (which shall be not less than five Business Days prior to
the date of payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the Holders of Securities not less than 15
days preceding such subsequent record date. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the Securities
of any particular series, or, if no such date is so specified, if such interest
payment date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep or cause to be kept at each office or agency to be maintained for the
purpose as provided in Section 3.2 a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article provided. Such register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable
times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount. Securities of any series to be exchanged
shall be surrendered at any office or agency to be
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maintained by the Issuer for the purpose as provided in Section 3.2, and the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Security or Securities of the same series which the Securityholder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his or her attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become mutilated
or defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver, a new Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and as substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer, the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may be required by them
to indemnify and defend and to save each of them
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harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security), if the applicant for such payment shall furnish to the
Issuer, to the Trustee and any agent of the Issuer or the Trustee such security
or indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer, the Trustee and any agent of the Issuer or the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be
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cancelled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Securities held by it and deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any of the Securities,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series, but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
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ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the Holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities remain Outstanding, the Issuer will maintain in the Borough of
Manhattan, City of New York, the following for each series: an office or agency
(a) where the Securities may be presented for payment, (b) where the Securities
may be presented for registration of transfer and for exchange as in this
Indenture provided and (c) where notices and demands to or upon the Issuer in
respect of the Securities or of this Indenture may be served. The Issuer will
give to the Trustee written notice of the location of any such office or agency
and of any change of location thereof. Unless otherwise specified in accordance
with Section 2.3, the Issuer hereby initially designates the Corporate Trust
Office as the office to be maintained by it for each such purpose. In case the
Issuer shall fail to so designate or maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.9, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section, that:
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(a) it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series or of the Trustee;
(b) it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the
same shall be due and payable; and
(c) it will pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance of
the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.7 and 9.8.
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SECTION 3.5 CERTIFICATE OF THE ISSUER. The Issuer will furnish to
the Trustee on or before April 30 in each year (beginning with 1995) a brief
certificate (which need not comply with Section 10.5) from the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under the
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture).
SECTION 3.6 SECURITYHOLDERS LISTS. If and so long as the Trustee
shall not be the Security registrar for the Securities of any series, the Issuer
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year and (b) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 3.7 REPORTS BY THE ISSUER. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
SECTION 3.8 REPORTS BY THE TRUSTEE. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year following the date hereof, so long as any
Securities are Outstanding hereunder, and shall be dated as of a date convenient
to the Trustee no more than 60 nor less than 45 days prior thereto.
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities
of such series; or
(d) default in the performance or breach of any covenant or agreement
of the Issuer in respect of the Securities of such series or in this
Indenture contained (other than a covenant or agreement in respect of the
Securities of such series or in this Indenture contained, a default in the
performance of which or the breach of which is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of all series affected thereby, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "notice of default" hereunder; or
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(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Issuer or for any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture
or resolution of the Board of Directors under which such series of
Securities is issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c), (d) or (g) above (if
the Event of Default under clauses (d) or (g) is with respect to less than all
series of Securities then Outstanding) occurs and is continuing, then, and in
each and every such case, unless the principal of all of the Securities of such
series shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clauses (d) or
(g) (if the Event of Default under clauses (d) or (g), as the case may be, is
with respect to all series of Securities then Outstanding), or an Event of
Default described in clauses (e) or (f) occurs and is continuing, then, and in
each and every such case, unless
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the principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then Outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, interest on such principal
and on overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein--then and
in every such case the Holders of a majority in aggregate principal amount of
all the Securities of such series, each series voting as a separate class (or of
all the Securities, as the case may be, voting as a single class), then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series
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(or with respect to all the Securities, as the case may be) and rescind and
annul such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series), and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
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Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
Holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
of such series and collect in the manner provided by law out of the property of
the Issuer or other obligor upon the Securities of such series, wherever
situated, the monies adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator, custodian or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the
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Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in any judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series,
or to the creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
receiver, assignee, trustee in bankruptcy or reorganization, liquidator,
sequestrator, custodian or other person performing similar functions in
respect of any such proceedings; and
(c) to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, assignee, receiver, sequestrator, liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith and all
other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 5.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment, liquidation
or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding, except as set forth in clause (b) of
the preceding paragraph.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof on any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall
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be brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 4.3 APPLICATION OF PROCEEDS. Any monies collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such monies on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and all other
amounts due to the Trustee or any predecessor Trustee pursuant to Section
5.6;
SECOND: In case the principal of the Securities of such series in
respect of which monies have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
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THIRD: In case the principal of the Securities of such series in
respect of which monies have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities
of such series; and in case such monies shall be insufficient to pay in
full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 4.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
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SECTION 4.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator,
sequestrator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Sections 4.9 or 4.10;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other such Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 4.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE
CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
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SECTION 4.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 4.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 4.9 CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and PROVIDED FURTHER that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Sections 5.1 or 6.2) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial to
such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 4.10 WAIVER OF PAST DEFAULTS. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive any past default or Event of Default described in clause (d) or (g)
of Section 4.1 which relates to less than all series of Securities then
Outstanding, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.2. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.1, the Holders of a
majority in aggregate principal amount of all of the Securities then Outstanding
(voting as one class) may on behalf of all Holders waive any past default or
Event of Default referred to in said clause (d) or (g) which relates to all
series of Securities then Outstanding, or described in clause (e) or (f) of
Section 4.1, except a default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Security
affected as provided in Section 7.2. In the case of any such waiver, the
Issuer, the Trustee and the Holders of the Securities of each series affected
shall be restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to
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mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); PROVIDED that, except in the case of default
in the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.
SECTION 4.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities of such series, or, in
the case of any suit relating to or arising under clauses (d) or (g) of Section
4.1 (if the suit relates to Securities of more than one but less than all
series), 10% in aggregate principal amount of Securities of all series then
Outstanding affected thereby, or in the case of any suit relating to or arising
under clauses (d) or (g) (if the suit relates to all the Securities then
Outstanding), (e) or (f) of Section 4.1, 10% in aggregate principal amount of
all Securities Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security.
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ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be
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furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 4.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of
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Directors may be evidenced to the Trustee by a copy thereof certified by
the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document unless requested in writing to
do so by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding; PROVIDED
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Issuer upon demand; and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.5 MONIES HELD BY TRUSTEE. Subject to the provisions of
Section 9.8 hereof, all monies received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
monies received by it hereunder.
SECTION 5.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable
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compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ) except to the extent any such
expense, disbursement or advance may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense arising out
of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and the performance of its duties hereunder, including the
costs and expenses of defending itself against or investigating any claim of
liability in the premises, except to the extent such loss liability or expense
is due to the negligence or bad faith of the Trustee or such predecessor
Trustee. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities, and the Securities are hereby
subordinated to such senior claim.
SECTION 5.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC.
Subject to Sections 5.1 and 5.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.8 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation
having a combined capital and surplus of at least $50,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or
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examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and by mailing notice thereof
by first-class mail to Holders of the applicable series of Securities at their
last addresses as they shall appear on the Security register. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by written instrument
in duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 4.12, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months;
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and shall
fail to resign after written request therefor by the Issuer or by any
Securityholder; or
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(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent, or
a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself or herself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.10.
SECTION 5.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 5.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further
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act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment of its charges then unpaid, the trustee ceasing to act shall,
subject to Section 9.8, pay over to the successor trustee all monies at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee; it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 5.9. If the Issuer fails to
mail such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
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SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; PROVIDED that such
corporation shall be eligible under the provisions of Section 5.8, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any
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purpose of this Indenture and (subject to Sections 5.1 and 5.2) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES; RECORD DATE. Subject to Sections 5.1 and 5.2, the execution of any
instrument by a Securityholder or his or her agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the registrar thereof. The Issuer may set a record date for
purposes of determining the identity of Holders of Securities of any series
entitled to vote or consent to any action referred to in Section 6.1, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only Holders of Securities of such series of record on such
record date shall be entitled to so vote or give such consent or revoke such
vote or consent.
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his or her order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for monies payable upon any such Security.
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.1 and
5.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture
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in connection with such action shall be conclusively binding upon the Issuer,
the Trustee and the Holders of all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth;
PROVIDED, that in respect of any such additional covenant, restriction,
condition or provision, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any
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supplemental indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture; or to
make such other provisions in regard to matters or questions arising under
this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely
affect the interests of the Holders of the Securities in any material
respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than 66 2/3% in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series;
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PROVIDED, that no such supplemental indenture shall (a) extend the final
maturity of any Security of any series, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected or
(b) 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 Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first-class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
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SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject
to the provisions of Sections 5.1 and 5.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Seven complies with the applicable provisions
of this Indenture.
SECTION 7.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The
Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, unless (i) either the Issuer shall be the continuing corporation, the
successor corporation or the person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be a
corporation organized under the laws of the United States of America or any
State thereof and shall expressly assume the due and
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punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation and (ii) the Issuer or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
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SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to
the provisions of Sections 5.1 and 5.2, may receive an Opinion of Counsel,
prepared in accordance with Section 10.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder (other than
Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) as and when the same
shall have become due and payable, (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
(other than any Securities of such series which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.9)
or (c) in the case of any series of Securities where the exact amount of
principal of and interest due on which can be determined at the time of making
the deposit referred to in clause (ii) below, (i) all the Securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption and (ii) the
Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than monies repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 9.8)
or, in the case of any series of Securities the payments on which may only be
made in U.S. dollars, direct non-callable obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption all Securities of such series (other than any
Securities of such series which shall have
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been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due on or prior
to such date of maturity or date of redemption, as the case may be, and if, in
any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer with respect to Securities of such series, then
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer and exchange of
Securities of such series, and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Holders to receive payments of principal thereof and
interest thereon, upon the original stated due dates therefore (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations and immunities of the
Trustee hereunder including without limitation Section 5.6, (v) the rights of
the Securityholders of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Section 3.2), and the Trustee, on demand of
the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect
to such series; PROVIDED, that the rights of Holders of the Securities to
receive amounts in respect of principal of and interest on the Securities held
by them shall not be delayed longer than required by then-applicable mandatory
rules or policies of any securities exchange upon which the Securities are
listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
SECTION 9.2 ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. In addition to discharge of the Indenture pursuant to Section 9.1,
with respect to any series of Securities where the exact amount of principal and
interest due on which can be determined at the time of making the deposit
referred to in Section 9.5(a), the Issuer may at its option by resolution of the
Board of Directors elect at any time either (a) to effect a defeasance (as
defined in Section 9.3) of the Securities of such series under Section 9.3 or
(b) to effect a covenant defeasance (as defined in Section 9.4) of the
Securities of such series
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under Section 9.4, in each case upon compliance with the applicable conditions
set forth below in this Article Nine.
SECTION 9.3 DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the option set forth in clause (a) of Section 9.2 with respect to the Securities
of a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to the Securities of such series on and after the date
the conditions precedent set forth in Section 9.5 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Issuer shall be
deemed to have paid and discharged the entire indebtedness represented by the
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and under this Indenture relating to the
Securities of such series (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for (i) the rights of
Holders of Securities of such series to receive, solely from the trust fund
described in Section 9.5 as more fully set forth in such Section, payments of
the principal of and interest on such Securities when such payments are due,
(ii) rights of registration of transfer and exchange of Securities of such
series, and the Issuer's right of optional redemption, if any, (iii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iv)
rights of Holders to receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (v) the rights, obligations and immunities of the Trustee hereunder, (vi)
the rights of Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vii) the obligations of the Issuer under Section 3.2. Subject to
compliance with this Article Nine, the Issuer may exercise its option under this
Section 9.3 notwithstanding the prior exercise of its option under Section 9.4
with respect to the Securities of such series.
SECTION 9.4 COVENANT DEFEASANCE. Upon the Issuer's exercise of the
option set forth in clause (b) of Section 9.2 with respect to the Securities of
a series, the Issuer shall be released from its obligations under Section 8.1
with respect to the Securities of such series on and after the date the
conditions precedent set forth in Section 9.5 are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Securities of such series, the Issuer may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in Section
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8.1, whether directly or indirectly by reason of any reference elsewhere herein
to such Section or by reason of any reference in such Section to any other
provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 4.1, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 9.5 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions precedent to the application of either Section
9.3 or Section 9.4 to the Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such series
(i) money in an amount, (ii) non-callable U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment in respect of the
Securities of such series, money in an amount or (iii) a combination
thereof, sufficient (without consideration of any reinvestment of such
money, principal or interest), in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and
discharge, (A) the principal of and interest on all Securities of such
series on each date such principal or interest is due and payable and
(B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series. Before such a deposit,
the Issuer may make arrangements satisfactory to the Trustee for the
redemption of the Securities of such series at a future date or dates
in accordance with Article Eleven, if applicable to the Securities of
such series, which shall be given effect in applying the foregoing;
(b) no Event of Default or event which with notice or lapse of
time or both would become an
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Event of Default with respect to the Securities of such series shall
have occurred and be continuing (i) on the date of such deposit or
(ii) insofar as Subsections 4.1(e) and 4.1(f) are concerned, at any
time during the period ending on the 121st day after the date of such
deposit or, if longer, ending on the date following the expiration of
the longest preference period applicable to the Issuer in respect of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such defeasance or covenant defeasance will not (i) cause
the Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with respect
to any securities of the Issuer or (ii) result in the trust arising
from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940,
as amended;
(d) such defeasance or covenant defeasance will not result in a
breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer is a party or
by which it is bound;
(e) if the Securities of such series are then listed on any
national securities exchange registered under the Securities Exchange
Act of 1934, as amended, the Issuer shall have delivered to the
Trustee on Opinion of Counsel to the effect that the exercise of the
option under Section 9.3 or 9.4, as the case may be, will not cause
such Securities to be delisted;
(f) in the case of an election under Section 9.3, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer has received from the United States Internal Revenue
Service (the "IRS") a private letter ruling, (ii) there has been
published by the IRS a general revenue ruling or (iii) since the date
of this Indenture there has been a change in the applicable Federal
income tax law, in each case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will
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be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred;
(g) in the case of an election under Section 9.4, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(h) such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Issuer in connection therewith pursuant to
Section 2.3; and
(i) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 9.3 or the covenant defeasance under Section 9.4 (as the
case may be) have been complied with.
SECTION 9.6 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 9.8, all monies and obligations and proceeds
thereof deposited with the Trustee pursuant to Section 9.1 or 9.5 shall be held
in trust and applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series for the payment or redemption of which
such monies and obligations have been deposited with the Trustee, of all sums
due and to become due thereon for principal and interest; but such money need
not be segregated from other funds except to the extent required by law.
SECTION 9.7 REPAYMENT OF MONIES HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all monies then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be
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released from all further liability with respect to such monies.
SECTION 9.8 RETURN OF MONIES HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any monies deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such monies shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such paying agent, before being required to make
any such repayment with respect to monies deposited with it for any payment
shall at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the security register,
notice, that such monies remain and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
SECTION 9.9 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the money or the U.S. Government Obligations deposited
pursuant to Section 9.1 or 9.5 or the principal or interest received in respect
of such obligations.
SECTION 9.10 REINSTATEMENT. If the Trustee or the paying agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 9.1 or 9.5 by reason of any legal proceedings or order or judgment or
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under this Indenture
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Nine until such time as the
Trustee or paying agent is permitted to apply all such money in accordance with
this Article Nine; PROVIDED that, if the Issuer makes any payment of principal
of or interest on any such Security following the reinstatement of
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its obligations, the Issuer shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or the paying agent.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 10.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 10.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until
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another address of the Issuer is filed by the Issuer with the Trustee) to the
Issuer at 100 First Stamford Place, Stamford, Connecticut 06902, Attention:
Secretary. Any notice, direction, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
or her last address as it appears in the Security register. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to
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compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate or opinion has
read such covenant or condition, (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the
opinion of such person, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his or her
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his or her certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
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SECTION 10.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939 (an "incorporated provision"), such incorporated provision shall
control.
SECTION 10.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 10.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of
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Securities of any series to be redeemed as a whole or in part at the option of
the Issuer shall be given by mailing notice of such redemption by first-class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such series at their
last addresses as they shall appear upon the registry books. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the Outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
prior to
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the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.5 and 9.8, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal
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shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the case of an
Original Issue Discount Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund payment". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional
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redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 10.5) signed by an
authorized officer of the Issuer (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series, (b) stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written statement
(or reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the Issuer shall so
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request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 or less and the Issuer makes no such request then it shall be
carried over until a sum in excess of $50,000 is available. The Trustee shall
select, in the manner provided in Section 11.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of such series
(or portions thereof) so selected. Securities of any series which are (a) owned
by the Issuer or an entity known by the Trustee to be directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer, as shown by the Security register, and not known to the Trustee to have
been pledged or hypothecated by the Issuer or any such entity or (b) identified
in an Officers' Certificate at least 60 days prior to the sinking fund payment
date as being beneficially owned by, and not pledged or hypothecated by, the
Issuer or an entity directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer shall be excluded from
Securities of such series eligible for selection for redemption. The Trustee,
in the name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 11.2 (and with the effect provided in Section 11.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund monies held on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other monies, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest
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accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund monies or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any monies in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 4.10
or the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES.
SECTION 12.1. AGREEMENT OF SUBORDINATION. The Issuer covenants and
agrees, and each Holder of Securities issued hereunder by his or her acceptance
thereof likewise covenants and agrees, that all Securities shall be issued
subject to the provisions of this Article Twelve; and each person holding any
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment of the principal of and interest on each of the Securities
issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full of
all Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article Twelve shall prevent the occurrence of
any default or Event of Default hereunder.
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SECTION 12.2. PAYMENTS TO SECURITYHOLDERS. In the event and during
the continuation of any default in the payment of any Senior Indebtedness
continuing beyond the period of grace, if any, specified in the instrument or
lease evidencing such Senior Indebtedness, then, unless and until such default
shall have been cured or waived or shall have ceased to exist, no payment shall
be made by the Issuer with respect to the principal of and interest on each of
the Securities, except payments made pursuant to Sections 9.1, 9.6, 9.7 and 9.8
hereof from monies deposited with the Trustee pursuant thereto prior to the
happening of such default.
Upon any payment by the Issuer, or distribution of assets of the
Issuer of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Issuer, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is made on account of
the Securities issued under this Indenture (except payments made pursuant to
Sections 9.1, 9.6, 9.7 and 9.8 hereof from monies deposited with the Trustee
pursuant thereto prior to the happening of such dissolution, winding-up,
liquidation or reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization any payment by the Issuer, or distribution of
assets of the Issuer of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee would be
entitled, except for the provisions of this Article Twelve, shall (except as
aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
or by the Holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Issuer) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders of the
Securities or to the Trustee.
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If, notwithstanding the foregoing, any payment or distribution of
assets of the Issuer of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Issuer, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article Twelve, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Issuer as
reorganized or readjusted, or securities of the Issuer or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Securities to the payment of all Senior Indebtedness which may at
the time be outstanding; PROVIDED that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness
(other than leases) and of leases which are assumed are not, without the consent
of such holders, altered by such reorganization or readjustment. The
consolidation of the Issuer with, or the merger of the Issuer into, another
corporation or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 12.2 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Twelve hereof. Nothing
in this Section 12.2 shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 5.6.
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SECTION 12.3. SUBROGATION OF SECURITIES. Subject to the payment in
full of all Senior Indebtedness, the rights of the Holders of the Securities
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness until the principal of and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article Twelve, and no
payment over pursuant to the provisions of this Article Twelve, to or for the
benefit of the holders of Senior Indebtedness by holders of the Securities or
the Trustee, shall, as between the Issuer, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Issuer to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Issuer, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Issuer other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Twelve of the holders of Senior
Indebtedness in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 5.1,
and the Holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver,
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trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Twelve.
SECTION 12.4. AUTHORIZATION BY SECURITYHOLDERS. Each Holder of a
Security by his or her acceptance thereof authorizes and directs the Trustee in
his or her behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Twelve and appoints the
Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 12.5. NOTICE TO TRUSTEE. The Issuer shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to the
Issuer which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities pursuant to the provisions of this Article
Twelve. Notwithstanding the provisions of this Article Twelve or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Twelve, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust Office
from the Issuer or a holder of Senior Indebtedness or from any trustee therefor;
and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 5.1, shall be entitled in all respects to assume that no
such facts exist; PROVIDED that if on a date not fewer than three business days
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including the payment of the principal of and interest
on the Securities) the Trustee shall not have received, with respect to such
monies, the notice provided for in this Section 12.5, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding anything to the contrary herein set forth, nothing
shall prevent any payment by the Issuer
67
<PAGE>
or the Trustee to the Securityholders of monies in connection with a redemption
of Securities if (i) notice of such redemption has been given pursuant to
Article Eleven prior to the receipt by the Trustee of written notice as
aforesaid and (ii) such notice of redemption is given not earlier than 60 days
before the redemption date.
The Trustee, subject to the provisions of Section 5.1, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such notice has been given
by a holder of Senior Indebtedness or a trustee on behalf of any such holder.
If the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article Twelve, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article Twelve, and if such evidence is not furnished the
Trustee may defer any payment to such person pending judicial determination as
to the right of such person to receive such payment.
SECTION 12.6. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. The Trustee
in its individual capacity shall be entitled to all the rights set forth in this
Article Twelve in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Section or elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Twelve, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 5.1, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to Holders of Securities,
the Issuer or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Twelve or otherwise.
68
<PAGE>
SECTION 12.7. NO IMPAIRMENT OF SUBORDINATION. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
SECTION 12.8. DEFEASANCE OF THIS ARTICLE TWELVE. The subordination
of any series of Securities provided by this Article Twelve is expressly made
subject to the provisions for discharge, defeasance or covenant defeasance in
Article Nine hereof and, anything herein to the contrary notwithstanding, upon
the effectiveness of any such discharge, defeasance or covenant defeasance, the
series of Securities for which such discharge, defeasance or covenant defeasance
becomes effective shall thereupon cease to be subordinated pursuant to this
Article Twelve.
69
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of __________ __, 1994.
CRANE CO.
By______________________________________
[CORPORATE SEAL]
Attest:
By_____________________________________
THE FIRST NATIONAL BANK OF
CHICAGO
By______________________________________
[CORPORATE SEAL]
Attest:
By_____________________________________
70
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of before me personally came
to me personally known, who, being by me duly sworn, did depose and say that he
resides at that he is a of Crane Co., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
_________________________
Notary Public
71
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this day of before me personally came
to me personally known, who, being by me duly sworn, did depose and say that he
resides at that he is a of The First National Bank
of Chicago, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
_________________________
Notary Public
72
<PAGE>
EXHIBIT 5 AND 23.2
May 18, 1994
Crane Co.
100 First Stamford Place
Stamford, Connecticut 06902
Dear Sirs:
Crane Co. (the "Company") is filing with the Securities and Exchange
Commission a Registration Statement on Form S-3 (the "Registration Statement")
for the purpose of registering under the Securities Act of 1933, as amended (the
"Securities Act") up to $300,000,000 aggregate principal amount of its debt
securities (the "Debt Securities").
As Vice President, General Counsel and Secretary of the Company, I have
examined such documents and such matters of fact and law that I have deemed
necessary for the purpose of rendering the opinion expressed herein. Based on
the foregoing, I am of the opinion that, when the Subordinated Indenture (as
defined in the Registration Statement) has been duly executed and delivered and
the Debt Securities have been duly executed, authenticated and delivered in
accordance with the Senior Indenture (as defined in the Registration Statement)
or the Subordinated Indenture, as the case may be, and sold as described in the
Registration Statement, any amendment thereto, the Prospectus which is a part of
the Registration Statement and any Prospectus Supplement relating thereto, the
Debt Securities will be legal, valid and binding obligations of the Company,
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and (b) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
Pursuant to the requirements of the Securities Act, I hereby consent to the
filing of this opinion as an Exhibit to the Registration Statement referred to
above, including any amendments thereto, and further consent to the reference to
my name under the caption "Legal Opinions" in the Prospectus which is a part of
the Registration Statement and in any Prospectus Supplement relating thereto.
Very truly yours,
/s/ Paul R. Hundt
Paul R. Hundt
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
<PAGE>
EXHIBIT 12
CRANE CO. AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS
BEFORE FIXED CHARGES TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
--------- -------------------------------------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
EARNINGS FROM
CONTINUING OPERATIONS
BEFORE INCOME TAXES. . . . . . . . . . . . . . . . . . . . . $12,453 $79,818 $38,689 $72,405 $102,488 $ 91,579
ADD:
Minority Interest. . . . . . . . . . . . . . . . . . . . . 0 0 0 0 0 0
Interest Expense . . . . . . . . . . . . . . . . . . . . . 3,327 11,396 14,464 11,540 16,746 19,177
Amortization of Debt Discount. . . . . . . . . . . . . . . 21 83 64 0 0 771
Portion of Rents Representative of Interest Factor . . . . 1,225 5,288 5,694 6,303 6,627 6,721
------- ------- ------- ------- -------- --------
Earnings Before Fixed Charges. . . . . . . . . . . . . . . $17,026 $96,585 $58,911 $90,248 $125,861 $118,248
------- ------- ------- ------- -------- --------
------- ------- ------- ------- -------- --------
FIXED CHARGES:
Interest Expense . . . . . . . . . . . . . . . . . . . . . $ 3,327 $11,396 $14,464 $11,540 $ 16,746 $ 19,177
Amortization of Debt Discount. . . . . . . . . . . . . . . 21 83 64 0 0 771
Portion of Rents Representative of Interest Factor . . . . 1,225 5,288 5,694 6,303 6,627 6,721
Preferred Stock Dividends(1) . . . . . . . . . . . . . . . 24 85 85 79 96 77
------- ------- ------- ------- -------- --------
TOTAL FIXED CHARGES. . . . . . . . . . . . . . . . . . . . $ 4,597 $16,852 $20,307 $17,922 $ 23,469 $ 26,746
------- ------- ------- ------- -------- --------
------- ------- ------- ------- -------- --------
Ratio of Earnings Before Fixed Charges to Fixed Charges. . . 3.70 5.73 2.90 5.04 5.36 4.42
<FN>
_________________________
(1) Preferred Stock dividends have been adjusted to reflect pre-tax earnings
necessary to pay such dividends at effective tax rates.
</TABLE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Crane Co. on Form S-3 of our reports dated January 24, 1994 (except for the
note "Subsequent Event" as to which the date is February 11, 1994), appearing in
and incorporated by reference in the Annual Report on Form 10-K of Crane Co. for
the year ended December 31, 1993 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
Stamford, Connecticut
May 18, 1994
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 12, 1993, except as to Note 13 which is as of December 29, 1993,
relative to Burks Pumps, Inc.'s consolidated financial statements for the year
ended December 31, 1992, appearing in Crane Co.'s Current Report on Form 8-K
dated January 12, 1994, as amended by Form 8-K-A dated January 26, 1994. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse
PRICE WATERHOUSE
St. Louis, Missouri
May 18, 1994
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
of Crane Co. on Form S-3 of our report dated May 4, 1994, on our audits of the
financial statements and financial statement schedules of Eldec Corporation as
of March 28, 1993 and March 29, 1992, and for the three years ended March 28,
1993. We also consent to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand
Seattle Washington
May 18, 1994
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Form S-3
Registration Statement of Crane Co. dated May 18, 1994, of our report dated
February 11, 1994, on our audit of the consolidated financial statements of
Marks Controls Corporation and Subsidiaries as of December 31, 1993 and 1992,
and for each of the three years in the period ended December 31, 1993, appearing
in the annual report on Form 10-K filed with the Securities and Exchange
Commission.
/s/ Arthur Andersen & Co.
ARTHUR ANDERSEN & CO.
Chicago, Illinois
May 18, 1994
<PAGE>
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
_________________________________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
___________________________________
CRANE CO.
(Exact name of obligor as specified in its charter)
Delaware 13-1952290
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
100 First Stamford Place
Stamford, Connecticut 06902
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois,on
the 4th day of May, 1994.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
By /s/ R. D. Manella
R. D. MANELLA
VICE PRESIDENT
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to
Exhibits bearing identical numbers in Item 12 of the Form T-1 of The
First National Bank of Chicago, filed as Exhibit 26(b) to the
Registration Statement on Form S-3 of Dow Capital B.V. and The Dow
Chemical Company, filed with the Securities and Exchange Commission on
June 3, 1991 (Registration No. 33-36314).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 4, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Crane Co. and The
First National Bank of Chicago, the undersigned, in accordance with Section
321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ R. D. Manella
R. D. MANELLA
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
5
<PAGE>
Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Page RC-1
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400 (-
DOLLAR AMOUNTS IN ------------ ----
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RCA-A):
a. Noninterest-bearing balances and currency and coin(1). . . . . . 0081 3,552,441 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 5,687,085 1.b.
2. Securities (from Schedule RC-B) . . . . . . . . . . . . . . . . . . 0390 470,252 2
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 3,985,638 3.a.
b. Securities purchased under agreements to resell. . . . . . . . . 0277 880,886 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 13,308,340 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . . . . . RCFD 3123 339,885 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . 2125 12,968,455 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 2146 3,109,630 5.
6. Premises and fixed assets (including capitalized leases). . . . . . 2145 497,559 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . . . . 7 2150 101,446 7.
8. Investments in unconsolidated subsidiaries and associated
- -98 companies (from Schedule RC-M). . . . . . . . . . . . . . . . . . . 2130 6,375 8.
9. Customers' liability to this bank on acceptances outstanding. . . . 2155 477,130 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . 2143 147,257 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 2,607,308 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . 2170 34,491,462 12.
<FN>
____________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
6
<PAGE>
Call Date: 12/31/93 ST-BK: 17-1630 FFIEC 031
Page RC-2
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1). . . . . . . . . . . . . . . . . . . RCON 2200 15,870,533 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . . . . RCON 6631 7,494,138 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . RCON 6636 8,376,395 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . . . . RCFN 2200 7,254,022 13.b.
(1) Noninterest bearing. . . . . . . . . . . . . . . . . . . . . RCFN 6631 352,283 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . RCFN 6636 6,901,739 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased. . . . . . . . . . . . . . . . . . . . . RCFD 0278 2,649,907 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . . RCFD 0279 171,899 14.b.
15. Demand notes issued to the U.S. Treasury. . . . . . . . . . . . . . RCON 2840 106,087 15.
16. Other borrowed money. . . . . . . . . . . . . . . . . . . . . . . . RCFD 2850 1,782,869 16.
17. Mortgage indebtedness and obligations under capitalized
leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 267,000 17.
18. Bank's liability on acceptance executed and outstanding . . . . . . RCFD 2920 477,130 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . . . . . RCFD 2930 2,049,329 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . . RCFD 2948 31,803,776 21.
22. Limited-Life preferred stock and related surplus. . . . . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . RCFD 3838 0 23.
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock). . . . . . RCFD 3839 2,254,940 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . RCFD 3632 232,478 26.a.
b. LESS: Net unrealized loss on marketable equity
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 0297 (299) 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . . RCFD 3284 (889) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . RCFD 3210 2,687,686 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . . . . RCFD 3300 34,491,462 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external
auditors as of any date during 1992 . . . . . . .RCFA 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
____________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
7
