As filed with the Securities and Exchange Commission on
February 17, 1998 Registration No. 333-
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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
=======================================================
HARNISCHFEGER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 39-1566457
(State or other 3600 S. Lake Dr. (I.R.S.Employer
jurisdiction of St. Francis, Wisconsin Identification
incorporation 53235 Number)
or organization) (414) 486-6400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
- ----------------------------------------------------------
James A. Chokey, Esq.Executive Vice President, Law and Government Affairs
Harnischfeger Industries, Inc.3600 S. Lake Dr.St. Francis, Wisconsin 53235
(414) 486-6400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
- -----------------------------------------------------------
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement as the registrant shall determine.
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. / /
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the
Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
- ---------
If this form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. / /
---------
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. / /
<TABLE>
CALCULATION OF REGISTRATION FEE
=============================================================================================
<CAPTION>
<C> <S> <S> <S> <S>
Title of Each Class Proposed Maximum Proposed Maximum
of Securities Amount to be Offering Aggregate Offering Amount of
to be Registered Registered Price Per Unit Price Registration Fee Fee
- ---------------------------------------------------------------------------------------------
Debt Securities $200,000,000(1)(2) 100% (1) $200,000,000 (1) $59,000(2)(3)
==============================================================================================
(1) Or, if any Debt Securities are issued with original issue discount, such greater amount
as shall result in an aggregate initial offering price of $200,000,000 (excluding
accrued interest and accrued amortization of discount, if any, of to the date of
delivery).
(2) Pursuant to Rule 429 under the Securities Act of 1933, in addition to the Securities
being registered by this Registration Statement, the combined prospectus contained
herein also relates to $50,000,000 aggregate principal amount of unsold Debt Securities
registered under Registration Statement No. 333-2401 for which a registration fee of
$17,241.38 was paid.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933.
</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.
--------------------
The prospectus included in this Registration Statement is
a combined prospectus as permitted by Rule 429 under the
Securities Act of 1933. The prospectus will also cover
$50,000,000 of Debt Securities previously registered and
unissued under Registration Statement No. 333-2401.
=========================================================
<PAGE>
SUBJECT TO COMPLETION, DATED , 1998
----------
PROSPECTUS
$200,000,000
Harnischfeger Industries, Inc.
Debt Securities
Harnischfeger Industries, Inc., a Delaware corporation
("Harnischfeger Industries" or the "Company"), may offer
and issue from time to time its debt securities
("Securities"), consisting of debentures, notes or other
evidences of indebtedness representing unsecured
obligations of the Company. The Securities may be offered
in one or more separate classes or series, in amounts, at
prices and on terms to be determined by market conditions
at the time of sale and to be set forth in a supplement or
supplements to this Prospectus (a "Prospectus Supplement").
The aggregate offering price of the Securities will not
exceed $250,000,000. See "Description of Securities"
herein.
Certain terms of any Securities in respect of which this
Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement including, without
limitation, the specific designation (including whether
such Securities are convertible), aggregate principal
amount, purchase price, currency, denomination, maturity,
interest rate (which may be fixed or variable) and time of
payment of interest (if any), terms (if any) for the
subordination, redemption or conversion thereof, listing
(if any) on a securities exchange and any other specific
terms of the Securities.
The Company's Common Stock is listed on the New York
Stock Exchange under the symbol HPH.
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 Securities may be sold on a negotiated or competitive
bid basis to or through underwriters or dealers designated
from time to time or to other purchasers directly or
through agents designated from time to time. Certain terms
of the offering and sale of the Securities, including,
where applicable, the names of the underwriters, dealers or
agents, if any, the purchase price of the Securities and
the proceeds to the Company from such sale, and any
applicable commissions, discounts and other items
constituting compensation of such underwriters, dealers or
agents, will also be set forth in the accompanying
Prospectus Supplement. See "Plan of Distribution" herein.
The date of this Prospectus is ______ __, 1998
<PAGE>
No person is authorized to give any information or to
make any representations other than those contained in this
Prospectus or any Prospectus Supplement and, if given or
made, such information or representation must not be relied
upon as having been authorized. This Prospectus and any
Prospectus Supplement do not constitute an offer to sell or
a solicitation of any offer to buy any securities other
than the securities offered hereby or an offer to sell or a
solicitation of an offer to buy such securities in any
jurisdiction to any person to whom it is unlawful to make
such offer or solicitation in such jurisdiction. Neither
the delivery of this Prospectus or any Prospectus
Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been
no change in the affairs of the Company since the date of
this Prospectus or any Prospectus Supplement or that the
information herein or therein is correct as of any time
since such date.
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"). Such reports,
proxy statements and other information filed by the Company
with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following Regional Offices of the Commission: 7
World Trade Center, Suite 1300, New York, New York 10048;
and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, and copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
Such material may also be accessed electronically by means
of the Commission's Web site on the Internet
(http://www.sec.gov). Reports, proxy statements and other
information concerning the Company can also be inspected at
the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, and the Pacific Stock
Exchange, Inc., 233 South Beaudry Street, Los Angeles,
California 90012 and 301 Pine Street, San Francisco,
California 94014.
The Company has filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities
Act"), covering the Securities. This Prospectus and the
accompanying Prospectus Supplement do not contain all of
the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the
rules and regulations of the Commission. For further
information, reference is hereby made to the Registration
Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year
ended October 31, 1997 is incorporated herein by reference.
All documents filed by the Company with the Commission
pursuant to Section 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 Securities shall be
deemed to be incorporated by reference in this Prospectus
and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference in
this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent
that a statement contained herein 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 such 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,
including any beneficial owner, to whom this Prospectus is
delivered, upon written or oral request of such person, a
copy of any document incorporated by reference in this
Prospectus, other than exhibits to any such document not
specifically incorporated by reference into the text of
such document. Requests for such documents should be
directed to Harnischfeger Industries, Inc. at its principal
executive offices, 3600 S. Lake Dr., St. Francis, Wisconsin
53235, Attention: Corporate Secretary (Telephone Number
(414) 486-6400).
<PAGE>
THE COMPANY
Harnischfeger Industries, Inc. ("Harnischfeger
Industries" or the "Company") is a holding company for
subsidiaries involved in the worldwide manufacture and
distribution of surface mining equipment (P&H Mining
Equipment); underground mining equipment (Joy Mining
Machinery); pulp and paper machinery (Beloit Corporation);
and material handling equipment (P&H Material Handling).
In early fiscal 1996, the Company completed the acquisition
of Dobson Park Industries plc ("Dobson"), an industrial
engineering group with interests in underground mining
equipment, industrial electronic control systems, toys and
plastics. Dobson's principal subsidiary, Longwall
International, is engaged in the manufacture, sale and
service of mining equipment for the international
underground coal mining industry and is being integrated
into the Company's Mining Equipment Segment. In March
1996, the Company completed the purchase of the assets of
the pulp machinery division of Ingersoll-Rand Company.
Harnischfeger Industries is the direct successor to a
business begun over 100 years ago which, at October 31,
1997, through its subsidiaries, manufactures and markets
products classified into three industry segments: Mining
Equipment, Pulp and Paper Machinery, and Material Handling.
Each of the Company's three business segments made
strategic acquisitions during fiscal 1997. These
acquisitions enhanced the businesses' position in each of
their markets.
Mining Equipment
P&H Mining Equipment is the world's largest producer of
electric mining shovels and walking draglines. In
addition, P&H Mining Equipment is a significant producer of
hydraulic mining excavators, blasthole drills, and dredge
and dragline bucket products. Electric mining shovels range
in capacity from 18 to 80 cubic yards, crawler draglines
from 10 to 20 cubic yards and hydraulic mining excavators
from 12 to 27 cubic yards. Capacities for walking draglines
range from 20 to 150 cubic yards. Blasthole drill models
have drilling diameters ranging from 9 to 22 inches and bit
load capacities from 70,000 to 150,000 pounds.
The products of P&H Mining Equipment are used in mines,
quarries and earth-moving operations in the digging and
loading of such minerals and other ores as coal, copper,
gold, iron ore, lead, zinc, bauxite, uranium, phosphate,
stone and clay.
P&H Mining Equipment has a relationship in the mining
shovel business with Kobe Steel, Ltd. ("Kobe") pursuant to
which P&H Mining Equipment licenses Kobe to manufacture
certain electric mining shovels and related replacement
parts in Japan. Harnischfeger Corporation has the exclusive
right to market Kobe-manufactured mining shovels and parts
outside Japan (except in the case of certain government
sales). In addition, Harnischfeger Corporation is party to
an agreement with a corporate unit of the People's Republic
of China, licensing the manufacture and sale of two models
of electric mining shovels and related components. This
relationship provides P&H Mining Equipment with an
opportunity to sell component parts for shovels built in
China.
On November 29, 1994, pursuant to an exchange of common
stock, the Company completed its acquisition of Joy
Technologies Inc. ("Joy" or "Joy Mining Machinery"), a
world leader in underground mining equipment. Joy
manufactures and services mining equipment for the
underground extraction of coal and other bedded materials
and has significant facilities in Australia, South Africa,
the United Kingdom and the United States, as well as sales
offices in Poland and the People's Republic of China. Joy
Mining Machinery designs, manufactures and distributes
various equipment for use in underground mining, including
continuous miners; longwall shearers; roof supports;
armored face conveyors; shuttle cars; continuous haulage
systems; entry drivers and sump shearers. Joy products are
not sold into the general construction industry and demand
for them is not tied to cycles in that industry. Joy also
maintains an extensive network of service and replacement
parts distribution centers to rebuild and service equipment
and to sell replacement parts in support of its installed
base. This network includes seven service centers in the
United States and five outside of the United States, all of
which are strategically located in major underground mining
regions. The financial position and results of operations
of Harnischfeger Industries and Joy were combined
retroactively in fiscal 1995.
In early fiscal 1996, the Company completed the
acquisition of Dobson for a purchase price of approximately
$330 million including acquisition costs plus the
assumption of net debt of approximately $40 million.
<PAGE>
Dobson, headquartered in the United Kingdom, was an
industrial engineering group with interests in underground
mining equipment, industrial electronic control systems,
toys and plastics. Longwall International ("Longwall"),
one of the main subsidiaries of Dobson, was engaged in the
manufacture, sale and service of underground mining
equipment for the international coal mining industry. Its
products include electronically controlled roof support
systems, armored face conveyors, pumps and systems. The
Company is fully integrating Longwall's operations into
Joy, thus enabling Joy to offer integrated underground
longwall mining systems to the worldwide mining industry.
Several non-mining businesses were designated as businesses
held for sale with the original value of these businesses
being set at $100 million. At October 31, 1997, one
business remained unsold with a net realizable value of
$9.3 million. The remaining business is expected to be
sold within the next year.
Financial information with respect to the acquisition of
Dobson is presented in Note 2 to the Consolidated Financial
Statements of the 1997 Annual Report to Shareholders
incorporated herein by reference.
Pulp and Paper Machinery
The Pulp and Paper Machinery Division is comprised of the
Company's 80% interest in Beloit Corporation ("Beloit").
Mitsubishi Heavy Industries, Ltd. ("Mitsubishi") is the
owner of the other 20% interest in Beloit. The Company and
Mitsubishi have entered into certain agreements that
provide Mitsubishi with the right to designate one of
Beloit's five directors. These agreements also place
certain restrictions on the transfer of Beloit stock. In
the event of a change in control of the Company, Mitsubishi
has the right to sell its 20% interest back to the Company
for the greater of $60 million or the book value of its
equity interest.
Beloit is a leader in the design and manufacture of pulp
and paper machinery and related products used in the pulp
and paper industries. Beloit operates on a global basis
with major manufacturing facilities in ten countries and
sales and service offices located throughout the world. In
addition, licensing arrangements exist with several major
foreign companies.
Beloit's activities are divided into the following
categories: complete installations involving the design,
manufacture and installation of integrated pulp and
papermaking machinery; major rebuilds and servicing of
existing systems; and the sale of ancillary equipment and
replacement parts. This machinery is custom designed to
meet the specific needs of each customer. In connection
with complete installations and major rebuilds, Beloit
engages in "engineer, procure and construct" contracts
which often involve complex long-term construction
projects, sometimes in relatively undeveloped parts of the
world. There are special design, construction, project
management, financing and performance risks associated with
these projects and other large Beloit pulp and paper
machinery sales. On March 27, 1996, the Company purchased
the assets of the pulp machinery division of Ingersoll-Rand
Company ("IMPCO"), which significantly strengthens Beloit's
pulping equipment offerings.
Beloit is known for the quality and dependability of its
products and is a leader in product innovation and
development. Beloit has made a continuous commitment to
research and development activities and has been granted
numerous patents on its designs. Beloit systems and
equipment are used by a substantial number of paper
producers, both domestic and foreign.
A major factor in Beloit's success in the pulp and paper
machinery industry has been its international manufacturing
operations. Beloit's overseas facilities have been used to
support both domestic and foreign sales and have provided
Beloit with the flexibility to shift its manufacturing to
more favorable locations as appropriate. Beloit's
manufacturing facilities are supported by a domestic and
international marketing network staffed by experienced
sales engineers.
In the fourth quarter of fiscal 1996, Beloit recorded a
$43.0 million pre-tax restructuring charge to strategically
focus on improving financial returns and increase customer
satisfaction while significantly reducing costs and cycle
time. In fiscal 1997 and 1996, utilization of the
restructuring reserve totaled $29.8 million. It is
expected that the remaining restructuring actions will be
substantially completed by the end of fiscal 1998.
Financial information with respect to the Beloit
restructuring is presented in Note 3 to the Consolidated
Financial Statements of the 1997 Annual Report to
Shareholders incorporated herein by reference.
Formerly, the Pulp and Paper Machinery Division also
included the Company's 20% interest in Measurex Corporation
("Measurex"). In fiscal 1995, Measurex repurchased its
stock which had been held by the Company resulting in a
pre-tax gain of $29.7 million.
P&H Material Handling
P&H Material Handling produces lines of through-the-air
material handling equipment designed for a variety of users
and container handling cranes for use in ports in addition
to providing aftermarket support and distribution and
service.
Engineered overhead cranes are comprised of several
product lines: engineered cranes, standard cranes, portal
cranes, ship-to-shore cranes, and crane components. Cranes
are designed for installation in a wide range of industrial
settings. Each crane is engineered to the customer's
specifications, using standard components wherever
possible. Engineered cranes are marketed for moderate to
severe duty cycle applications in capacities from 3 to 800
tons.
Standard overhead cranes are available in capacities from
5 to 100 tons. Stacker cranes, ranging in capacities from
2 to 50 tons, are particularly suitable for factory
automation projects. Portal cranes range in lifting
capacities from 5 to 100 tons and are used outdoors for
woodyard, scrap, and container handling.
P&H Material Handling has two groups specializing in
aftermarket support and distribution and service. The P&H
Aftermarket Group consists of Product Support, which
markets replacement products and repair parts and P&H
Modernizations, which handles pre-owned and remanufactured
cranes and parts plus provides engineering services for the
revitalization of crane and runway systems. P&H
Distribution and Service provides installation, erection
and repair and maintenance services under the ProCare
trademark.
Discontinued Segments
Environmental The Company completed the sale of Joy
Environmental Technologies ("JET") in the first quarter of
1996. JET was a unit of Joy which supplied air pollution
and ash handling equipment for electric utilities and other
industrial operations.
Systems Syscon Corporation ("Syscon"), the remaining
unit in the Company's Systems Group, was sold in February
1995 to Logicon, Inc. Syscon was engaged principally in
providing systems development, systems integration and
systems services to the U. S. Government, government
agencies and commercial enterprises.
Other
On January 28, 1998, the Company announced the sale of 80
percent of the Company's P&H Material Handling unit for
approximately $340 million in cash at closing in a
transaction with Chartwell Investments, Inc. In addition,
the Company will receive preferred stock and royalty
payments from the new company for 10 years. The 1998
after-tax cash proceeds from the transaction are expected
to total approximately $300 million.
The transaction is expected to close in two months,
subject to completion of Chartwell's financing
arrangements. Chartwell is a private investment firm based
in New York City that controls businesses in distribution
and services with over $1 billion in sales. The Company
expects to use the proceeds of the sale to pay down debt
and to buy back stock as part of the Company's previously
announced intent to repurchase 10 million shares.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the Company intends to use the net proceeds
from the sale of the Securities for general corporate
purposes, which may include, without limitation, the
repayment of indebtedness, the financing of its
operations, the financing of capital expenditures, the
acquisition of equity securities of the Company and
possible business investments and acquisitions. Pending
such applications, the net proceeds will be temporarily
invested in marketable securities.
<PAGE>
SELECTED FINANCIAL DATA
(dollars in thousands except per share amounts)
The following selected financial data at and for the
fiscal years ended October 31, 1997, 1996, 1995, 1994 and
1993 has been derived from the Company's consolidated
financial statements audited by Price Waterhouse LLP,
independent accountants. This financial data should be
read in conjunction with, and is qualified in its entirety
by, the related financial statements and notes thereto
which have been incorporated in this Prospectus by
reference.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA: Fiscal Year Ended October 31,
-----------------------------
Revenues 1997 1996 1995
Net Sales $3,088,538 $2,863,931 $2,152,079
Other Income 29,705 23,639 32,208
---------- ---------- ----------
$3,118,243 2,887,570 2,184,287
Cost of Sales 2,341,515 2,166,775 1,671,932
Product Development,
Selling and Administrative
Expenses 457,456 433,776 330,990
Restructuring Charges - 43,000 -
Nonrecurring Charge - - -
---------- ---------- ----------
Operating Income (Loss) 319,272 244,019 181,365
Interest Expense-Net (72,543) (62,258) (40,713)
----------- ----------- -----------
Income (Loss) before Joy
Merger Costs, Gain on
Sale of Measurex Invest-
ment (Provision) Credit
for Income Taxes and
Minority Interest 246,729 181,761 140,652
Joy Merger Costs - - (17,459)
Gain on Sale of
Measurex Investment - - 29,657
(Provision) Credit
for Income Taxes (83,875) (63,600) (53,500)
Minority Interest (10,014) (3,944) (7,230)
----------- ------------ -----------
Income (Loss) from
Continuing Operations 152,840 114,217 92,120
Income (Loss) from and
(Net Loss) on Sale of
Discontinued Operations,
net of applicable
income taxes - - (31,235)
Extraordinary Loss
on Retirement of Debt,
net of applicable
income taxes (12,999) - (3,481)
Cumulative Effect of
Accounting Change, net of
applicable income taxes
and minority interest - - -
----------- ----------- -----------
Net Income (Loss) $ 139,841 $ 114,217 $ 57,404
=========== =========== ===========
Earnings (Loss) Per Share
Income (loss) from
continuing operations $ 3.20 $ 2.42 $ 1.99
Income (loss) from
and (net loss) on sale
of discontinued operations - - (0.67)
Extraordinary loss on
retirement of debt (0.27) - (0.08)
Cumulative effect of
accounting change - - -
Net Income (Loss) ------------ ----------- ------------
Per Common Share $ 2.93 $ 2.42 $ 1.24
=========== =========== ===========
BALANCE SHEET DATA (at period end):
Total Assets $ 2,924,535 $ 2,690,029 $ 2,040,767
Working Capital 426,415 333,123 490,087
Long-term Obligations(1) 725,193 662,137 462,991
Shareholders' Equity 764,220 673,485 559,276
DEBT TO CAPITALIZATION
RATIO(2): 52.0% 48.0% 42.6%
CASH FLOW DATA:
Depreciation and
Amortization $ 94,425 $ 89,270 $ 70,512
EBITDA (3) 413,697 333,289 264,075
Capital Expenditures 133,497 83,388 73,484
STATEMENT OF INCOME DATA: Fiscal Year Ended October 31,
-----------------------------
Revenues 1994 1993
Net Sales $1,551,728 $1,409,204
Other Income 23,301 9,040
---------- ----------
$1,575,029 1,418,244
Cost of Sales 1,195,851 1,083,846
Product Development,
Selling and Administrative
Expenses 279,016 259,831
Restructuring Charges - 67,000
Nonrecurring Charge - 8,000
---------- ----------
Operating Income (Loss) 100,162 (433)
Interest Expense-Net (47,366) (48,313)
----------- -----------
Income (Loss) before Joy
Merger Costs, Gain on
Sale of Measurex Invest-
ment, (Provision) Credit
for Income Taxes and
Minority Interest 52,796 (48,476)
Joy Merger Costs - -
Gain on Sale of
Measurex Investment - -
(Provision) Credit
for Income Taxes (13,979) 16,497
Minority Interest ( 2,224) 4,799
----------- ------------
Income (Loss) from
Continuing Operations 36,593 (27,450)
Income (Loss) from and
(Net Loss) on Sale of
Discontinued Operations,
net of applicable
income taxes (3,982) 7,760
Extraordinary Loss
on Retirement of Debt,
net of applicable
income taxes ( 4,827) -
Cumulative Effect of
Accounting Change, net of
applicable income taxes
and minority interest (81,696) -
----------- -----------
Net Income (Loss) $ (53,912) $ (19,690)
=========== ===========
Earnings (Loss) Per Share
Income (loss) from
continuing operations $ 0.84 $ (0.62)
Income (loss) from
and (net loss) on sale
of discontinued operations (0.09) 0.18
Extraordinary loss on
retirement of debt (0.11) -
Cumulative effect of
accounting change (1.87) -
Net Income (Loss) ------------ -----------
Per Common Share $ (1.23) $ (0.44)
=========== ===========
BALANCE SHEET DATA (at period end):
Total Assets $ 1,981,953 $ 1,908,250
Working Capital 431,325 375,236
Long-term Obligations(1) 571,054 559,852
Shareholders' Equity 502,365 511,169
DEBT TO CAPITALIZATION
RATIO(2): 49.9% 51.1%
CASH FLOW DATA:
Depreciation and
Amortization $ 73,243 $ 72,629
EBITDA(3) 173,405 72,196
Capital Expenditures 50,842 71,761
Notes
- -----------------------------------------------------------------------------
(1) Includes amounts classified as current portion of long-term obligations.
(2) The debt to capitalization ratio is defined as the sum of short-term notes payable,
long-term debt (including current portion) and capitalized lease obligations divided by the sum of
short-term notes payable, long-term debt (including current portion) and capitalized lease
obligations, minority interest and shareholders' equity.
(3) EBITDA is defined as Income (Loss) from Continuing Operations plus Interest
Expense-Net, (Provision) Credit for Income Taxes, Depreciation and Amortization and
Minority Interest.
</TABLE>
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The consolidated ratio of earnings to fixed charges for
the Company is defined as income from continuing operations
before provision (credit) for income taxes and minority
interest plus interest expense (including amortization of
debt issuance expense), the portion of rental expense which
represents interest (deemed to be one-third of rentals) and
dividends received on less-than-fifty-percent-owned
companies, reduced (increased) by equity income (loss)
recorded on less-than-fifty-percent-owned companies,
divided by fixed charges. Fixed charges include interest
expense (including amortization of debt issuance expense)
and the portion of rental expense which represents interest.
Fiscal Years Ended October 31,
-------------------------------------
1997 1996 1995 1994 1993
Ratio of Earnings
to Fixed Charges: 3.90 3.33 3.60 1.87 *
Notes
- ----------------------------------------
* Earnings did not cover fixed charges by $47,437,000 in
1993.
The consolidated ratio of earnings to combined fixed
charges and preferred stock dividends would be the same as
the above table since the Company had no preferred stock
issued and outstanding during the periods covered by the
table.
DESCRIPTION OF SECURITIES
The following descriptions set forth certain general
terms and provisions of the Securities to which any
Prospectus Supplement may relate. The particular terms and
provisions of the Securities offered by a Prospectus
Supplement, and the extent to which the general terms and
provisions described below may apply thereto, will be
described in the Prospectus Supplement relating to such
Offered Securities.
The statements herein do not purport to be complete and
are qualified in their entirety by express reference to the
Indenture (as defined below), the Certificate of
Incorporation of the Company as amended (the "Certificate
of Incorporation"), and the Rights Agreement (as defined
below) (copies of which have been incorporated by reference
as exhibits to the Registration Statement of which this
Prospectus is a part), and to the definitions therein of
the terms used herein.
The Securities are to be issued in one or more series
under an Indenture dated as of March 1, 1992, as
supplemented by a First Supplemental Indenture dated as of
June 12, 1992 (collectively, the "Indenture'), between the
Company and First Trust National Association (successor to
Continental Bank, National Association), as Trustee (the
"Trustee"). The following summaries of certain provisions
of the Securities and the Indenture do not purport to be
complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture,
including the definition therein of certain terms.
Particular sections of the Indenture which are relevant to
the discussion are cited parenthetically. Wherever
particular sections or defined terms of the Indenture are
referred to, it is intended that such sections or defined
terms shall be incorporated herein by reference.
General
The Indenture does not limit the amount of Securities
which can be issued thereunder or the amount or type of
Securities which may otherwise be issued by the Company and
additional Securities may, without the consent of the
holders of outstanding Securities, be issued under the
Indenture up to the aggregate principal amount which may be
authorized from time to time by, or pursuant to a
resolution of, the Company's Board of Directors or by a
supplemental indenture. As of the date hereof, the
aggregate principal amount of Securities outstanding under
the Indenture was $450,000,000.
Reference is made to the Prospectus Supplement for the
following terms, if applicable, of the particular series of
Securities being offered thereby: (i) the title of the
Securities of the series; (ii) any limit upon the aggregate
<PAGE>
principal amount of the Securities of the series; (iii)
whether the Securities of the series will be issuable in
registered or bearer form or both, any restrictions
applicable to the offer, sale or delivery of Securities in
bearer form ("bearer Securities") and whether and the terms
upon which bearer Securities will be exchangeable for
Securities in registered form ("registered Securities") and
vice versa; (iv) the date as of which any bearer Securities
of the series and any temporary global Security shall be
dated if other than the date of issuance of the first
Security of the series; (v) the method of paying interest
with respect to any portion of a temporary bearer Security
in the form of a global note; (vi) the date or dates on
which the principal of the Securities of the series will be
payable; (vii) the rate or rates (or manner of calculation
thereof), if any, at which the Securities of the series
will bear interest, the date or dates from which any such
interest will accrue and on which such interest will be
payable, and, with respect to Securities of the series in
registered form, the record date for the interest payable
on any interest payment date, whether and under what
circumstances the Company will pay additional amounts on
the Securities of the series held by a person who is not a
U.S. person in respect of taxes or similar charges withheld
or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such
additional amounts; (viii) the place or places where the
principal of and interest or additional amounts, if any, on
the Securities of the series will be payable; (ix) the
period or periods within which, the price or prices at
which and the terms and conditions upon which the
Securities of the series may be redeemed at the option of
the Company; (x) any redemption or sinking fund provisions;
(xi) the denominations in which Securities of the series
shall be issuable; (xii) if other than the principal amount
thereof, the portion of the principal amount of Securities
of the series which will be payable upon declaration of
acceleration of the maturity thereof; (xiii) the currencies
in which payments of interest, premium or principal are
payable with respect to such Securities; and (xiv) any
additional provisions or other terms not inconsistent with
the provisions of the Indenture, including any terms which
may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing
of Securities of such series. (Sections 3.1 and 3.2.) To
the extent not described herein, principal and interest, if
any, will be payable, and the Securities of a particular
series will be transferable, in the manner described in the
Prospectus Supplement relating to such series. "Principal'
when used herein includes, when appropriate, the premium,
if any, on the Securities.
Securities of any series may be issued as registered
Securities or bearer Securities or both as specified in the
terms of the series. Additionally, Securities of any
series may be represented by one or more global notes
registered in the name of a depositary's nominee and, if so
represented, beneficial interests in such global note will
be shown on, and transfers thereof will be effected only
through, records maintained by a designated depositary and
its participants. Unless otherwise indicated in the
Prospectus Supplement, registered Securities will be issued
in the denomination of $1,000 and integral multiples
thereof and bearer Securities will be issued in the
denomination of $5,000 and integral multiples thereof.
If appropriate, federal income tax consequences
applicable to a series of Securities will be described in
the Prospectus Supplement relating thereto.
Exchange of Securities
Registered Securities may be exchanged for an equal
aggregate principal amount of registered Securities of the
same series and date of maturity in such authorized
denominations as may be requested upon surrender of the
registered Securities at an agency of the Company
maintained for such purpose and upon fulfillment of all
other requirements of such agent. (Section 3.5.)
To the extent permitted by the terms of a series of
Securities authorized to be issued in registered form and
bearer form, bearer Securities may be exchanged for an
equal aggregate principal amount of registered or bearer
Securities of the same series and date of maturity in such
authorized denominations as may be requested upon surrender
of the bearer Securities with all unpaid coupons relating
thereto at an agency of the Company maintained for such
purpose and upon fulfillment of all other requirements of
such agent. (Section 3.5.)
Limitation Upon Liens
The Indenture provides that the Company will not, and
will not permit any Restricted Subsidiary (as defined
below) to, create, incur, issue, assume or guarantee any
indebtedness for borrowed money ("indebtedness") secured by
a mortgage, security interest, pledge or lien (each a
"Lien") of or upon any Principal Manufacturing Property (as
defined below), or any shares of capital stock or
indebtedness of any Restricted Subsidiary (as defined
below), whether owned at the date of the Indenture or
thereafter acquired, without effectively providing that the
<PAGE>
Securities and any other securities issued under the
Indenture shall be secured by such Lien equally and ratably
with (or, at the option of the Company, prior to) such
indebtedness, so long as such indebtedness shall be so
secured. The foregoing restrictions, however, shall not
apply to (i) taxes, assessments or governmental charges
which are not yet delinquent, or are being diligently
contested in good faith and by appropriate proceedings;
(ii) governmental Liens or Liens imposed by law, such as
carriers', warehousemen's, mechanics', materialmen's and
vendors' liens for sums not yet due or which are being
diligently contested in good faith and by appropriate
proceedings; (iii) existing Liens; (iv) any Lien on any
property acquired, constructed or substantially improved by
(or of or upon any shares of capital stock or indebtedness
acquired by) the Company or any Restricted Subsidiary after
the date of the Indenture and created contemporaneously
with or within twelve (12) months of such acquisition,
construction or improvement to secure or provide for all or
a portion of the purchase price of such property or for
such construction or improvement; (v) Liens in connection
with industrial revenue bonds, pollution control bonds or
similar secured financings; (vi) performance of bids,
tenders, contracts (other than for the repayment of or in
connection with borrowed money), or for purposes of like
general nature in the ordinary course of the Company's
business; (vii) Liens in favor of any customer to the
extent necessary to secure partial, progress, advance or
other payments for goods produced or services rendered to
such customer in the ordinary course of business; (viii)
attachment, judgment and other similar Liens arising in
connection with court proceedings, provided the execution
or other enforcement of such Liens is effectively stayed
within thirty (30) days after the Company or a Restricted
Subsidiary receives notice thereof and the claims secured
thereby are being actively contested in good faith by
appropriate proceedings and against which an adequate
reserve has been established; (ix) any Lien existing on the
property, shares of stock or indebtedness of a Person at
the time such Person becomes a Restricted Subsidiary of the
Company or is merged into or consolidated with the Company
or a Restricted Subsidiary or at the time of a sale, lease
or other disposition of the properties of any Person as an
entirety or substantially as an entirety to the Company or
a Restricted Subsidiary (whether or not such Lien is
assumed by the Company or a Restricted Subsidiary); (x)
Liens on the property of a Restricted Subsidiary to secure
indebtedness for borrowed money owed to the Company or
another Subsidiary, (xi) in the case of leased properties,
the terms and conditions of leases or subleases creating
the leasehold estate and, in the case of all real
properties, title exceptions affecting the underlying fee
simple estate; or (xii) Liens created in connection with
the extension or renewal of any secured indebtedness or
other obligations permitted under the terms of the
Indenture.
Notwithstanding the restrictions outlined above, the
Company or any Restricted Subsidiary may, without equally
and ratably securing the Securities, issue, assume or
guarantee indebtedness secured by a Lien not excepted under
clauses (i) through (xii) above, if the aggregate amount of
such indebtedness, together with all other indebtedness
secured by Liens not so excepted, does not at the time
exceed 10% of Consolidated Net Tangible Assets (as defined
below).
The term "Consolidated Net Tangible Assets" means, as of
any particular time, the total amount of assets (less
applicable reserves) after deducting therefrom (i) all
current liabilities (excluding any thereof which are by
their terms extendible or renewable at the option of the
obligor thereon to a time more than twelve (12) months
after the time as of which the amount thereof is being
computed and excluding current maturities of long-term
indebtedness), and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense
and other like intangible assets, all as shown in the
audited consolidated balance sheet of the Company and its
Subsidiaries contained in the Company's then most recent
annual report to stockholders.
The term "Principal Manufacturing Property" means any
manufacturing plant (including fixtures and improvements
but excluding equipment, leases and other contract rights
which might otherwise be deemed real property) owned by the
Company, or any Restricted Subsidiary, whether owned on the
date of the Indenture or thereafter, provided each such
plant has a gross book value (without deduction for any
depreciation reserves) at the date as of which the
determination is being made of in excess of two percent
(2%) of Consolidated Net Tangible Assets, other than any
such plant or portion thereof which, in the opinion of the
Board of Directors (evidenced by a Board Resolution), is
not of material importance to the business conducted by the
Company and its Subsidiaries taken as a whole.
The term "Restricted Subsidiary" means each Subsidiary
(i) substantially all the property of which is located, or
substantially all the business of which is conducted,
within the United States excluding its territories and
possessions, and (ii) which owns or leases a Principal
Manufacturing Property.
<PAGE>
Additional Restrictive Covenants
Reference is made to the Prospectus Supplement relating
to a particular series of Securities for any additional
restrictive covenants which may relate to such series.
Amendment and Waiver
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented by the Company
and the Trustee with the written consent of the Holders of
not less than 66-2/3% in principal amount of the
outstanding Securities of each series affected by the
amendment or supplement (with each series voting as a
class) or compliance with any provision may be waived with
the consent of the Holders of a majority in principal
amount of the outstanding Securities of each series
affected by such waiver (with each series voting as a
class). However, without the consent of each Holder
affected, an amendment or waiver may not, among other
things, (i) reduce the principal of or change the Stated
Maturity of any Security; (ii) reduce the rate of or change
the time for payment of interest on any Security; (iii)
reduce any premium payable upon redemption of any Security;
(iv) change the place of payment where any Security or any
interest thereon is payable; (v) waive a default in the
payment of the principal of or interest on any Security
(Section 5.13); (vi) make any Security payable in money
other than that stated in the Security; (vii) impair the
right to institute suit on or after the Stated Maturity
Date of any Security for the enforcement of any payment on
or with respect to such Security; or (viii) reduce the
percentage in principal amount of Securities whose Holders
must consent to a supplemental indenture, amendment or any
waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their
consequence. (Section 9.2.)
The Indenture may be amended or supplemented without the
consent of any Holder, among other things, (i) to provide
for the assumption of all the obligations of the Company
under the Securities and any coupons appertaining thereto
and under the Indenture by any corporation in connection
with a merger, consolidation, or transfer or lease of the
Company's property and assets substantially as an entirety,
as provided for in the Indenture; (ii) to add to the
covenants of the Company, for the benefits of the Holders
of all or any series of Securities; (iii) to provide for
bearer Securities that are registrable as to principal or
to change or eliminate in certain circumstances any
restrictions on the payment of principal (and interest in
the case of bearer Securities) on the Securities; (iv) to
provide for uncertificated Securities in addition to or in
place of certificated Securities; (v) to make any change
that does not adversely affect the rights of any Holder of
Securities; (vi) to provide for the issuance of and
establish the form and terms and conditions of a series of
Securities or to establish the form of any certifications
required to be furnished pursuant to the terms of the
Indenture or any series of Securities; (vii) to cure any
ambiguity, defect or inconsistency in the Indenture or in
the Securities of any series; (viii) to evidence the
appointment of a successor Trustee; or (ix) to secure the
Securities. (Section 9.1.)
Successor Entity
The Company may consolidate with, or merge into, or be
merged into, or transfer or lease its property and assets
substantially as an entirety to, any other corporation, if
(i) the Company is the continuing corporation, or the
successor is a U.S. corporation which assumes all the
obligations of the Company under the Securities and any
coupons appertaining thereto and under the Indenture, and
(ii) after giving effect thereto, no default under the
Indenture shall have occurred and be continuing.
Thereafter, except in the case of a lease, all such
obligations of the Company shall terminate. (Section 8.1
and Section 8.2.)
Defeasance, Satisfaction and Discharge of the Securities
Prior to Maturity
Defeasance. Unless provided for otherwise in the
applicable Prospectus Supplement, if the Company shall
deposit with the Trustee, in trust, at or before maturity,
lawful money or direct obligations of the United States of
America or obligations the principal of and interest on
which are guaranteed by the United States of America in
such amounts and maturing at such times that the proceeds
of such obligations to be received upon the respective
maturities and interest payment dates of such obligations
will provide funds sufficient, in the opinion of a
nationally-recognized firm of independent public
accountants chosen by the Company, to pay when due the
principal of and interest on the Securities to maturity
(such money or direct obligations of, or obligations
guaranteed by, the United States of America initially
deposited or equivalent cash or securities subsequently
exchanged therefor, to be held as security for the payment
of such principal and interest), then the Company may omit
to comply with certain of the
<PAGE>
terms of the Indenture as they relate to the Securities,
including the restrictive covenants described herein under
the caption "Description of Securities-Securities-Limitation
Upon Liens" and the Event of Default described
in clause (iv) under the caption "Description of
Securities-Securities-Events of Default." Defeasance of
the Securities would be subject to the satisfaction of
certain conditions, including, among others, (i) the
absence of an Event of Default at the date of the deposit,
(ii) the perfection of the Holders' interest in such
deposit and (iii) the condition that such deposit would not
result in a breach of a material instrument by which the
Company is bound. (Section 4.2.)
Satisfaction and Discharge. Upon the deposit of money or
securities contemplated above and the satisfaction of
certain conditions, the Company may omit to comply with its
obligations duly and punctually to pay the principal of and
interest on the Securities, or with any Events of Default
with respect thereto, and thereafter the Holders of
Securities shall be entitled only to payment out of the
money or securities deposited with the Trustee. Such
conditions may include, among others, (i) except in certain
limited circumstances involving a deposit made within one
year of maturity, (A) the absence of an Event of Default at
the date of deposit or on the 91st day thereafter, and (B)
the delivery to the Trustee by the Company of an opinion of
nationally-recognized tax counsel to the effect that
Holders of Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such
deposit and discharge and will be subject to 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 deposit and
discharge had not occurred, and (ii) the receipt by the
Company of an opinion of counsel to the effect that such
satisfaction and discharge will not result in a violation
of the rules of any nationally-recognized exchange on which
the Securities are listed. (Section 4.1.)
Events of Default
The following events are defined in the Indenture as
"Events of Default" with respect to a series of Securities:
(i) default in the payment of interest on any Security of
such series which continues for 30 days; (ii) failure by
the Company for two business days after notice to it to pay
the principal of any Security of such series when due;
(iii) failure by the Company for two business days after
notice to it to pay any sinking fund installment required
to be made by the Company with respect to any series of
Securities; (iv) failure by the Company for 60 days after
notice to it to comply with any of its other agreements
with respect to the Securities of such series in the
Indenture or in any supplemental indenture under which the
Securities of that series may have been issued; (v) certain
events of bankruptcy or insolvency and (vi) acceleration of
any indebtedness for money borrowed by the Company or any
Restricted Subsidiary in excess of $10,000,000 in aggregate
principal amount, if such acceleration is not rescinded or
annulled within 10 days after written notice has been
provided to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate
principal amount of outstanding Securities. (Section 5.1.)
If an Event of Default occurs with respect to the
Securities of any series and is continuing, the Trustee or
the Holders of at least 25% in principal amount of all of
the outstanding Securities of that series may declare the
principal (or, if the Securities of that series are
original issue discount Securities, such portion of the
principal amount as may be specified in the terms of that
series) of, and any accrued interest on, all the Securities
of that series to be due and payable. Upon such
declaration, such principal (or, in the case of original
issue discount Securities, such specified amount) and all
accrued interest thereon shall be due and payable
immediately. (Section 5.2.)
Holders of Securities may not enforce the Indenture or
the Securities, except as provided in the Indenture.
(Section 5.7.) The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the
Securities. (Section 6.3 (e).) Subject to certain
limitations, Holders of a majority in principal amount of
the Securities of each series affected (with each series
voting as a class) may direct the Trustee in its exercise
of any trust power. (Section 5.12.) The Trustee may
withhold from Holders notice of any continuing default
(except a default in payment of principal or interest) if
it determines in good faith that withholding notice is in
their interests. (Section 6.2.) The Company is not
required under the Indenture to furnish any periodic
evidence as to the absence of default or as to compliance
with the terms of the Indenture.
Book-Entry Only System
Securities of any series may be issued initially in the
form of one or more global securities under a book-entry
only system operated by a securities depository. Unless
otherwise specified in the Prospectus Supplement, The
Depository Trust Company ("DTC") will act as securities
depository for Securities, which would be registered in the
name of CEDE & Co., as registered security holder and
nominee for DTC. Individual purchases of Book-Entry
<PAGE>
Interests (as herein defined) in any such Securities will
be made in book-entry form. Purchasers of Book-Entry
Interests in such Securities will not receive certificates
representing their interests in such Securities. So long
as CEDE & Co., as nominee of DTC, is the security holder,
references herein to holders of Securities or registered
owners will mean CEDE & Co., rather than the owners of
Book-Entry Interests in Securities.
DTC is a limited purpose trust company organized under
the banking laws of the State of New York and a "banking
organization" within the meaning of that law, a member of
the Federal Reserve System, a "clearing corporation" within
the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities
deposited by its participants (the "DTC Participants") and
facilitates the settlement of securities transactions among
DTC Participants in such securities through electronic
computerized book-entry changes in accounts of the DTC
Participants, thereby eliminating the need for physical
movement of securities certificates. Direct DTC
Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations, some of whom (including, possibly, the
underwriters with respect to the Securities), together with
the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities
Dealers, Inc., own DTC. Access to the DTC system is also
available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial
relationship with a DTC Participant, either directly or
indirectly (the "Indirect Participants").
DTC Participants purchasing Book-Entry Interests (as
defined below) in any Securities will not receive
certificates. Each DTC Participant will receive a credit
balance in the records of DTC in the amount of such DTC
Participant's interest in such Securities, which will be
confirmed in accordance with DTC's standard procedures.
The ownership interest of each actual purchaser of a
Book-Entry Interest in a Security (the "Book-Entry Interests")
will be recorded through the records of the DTC Participant
or through the records of the Indirect Participant. Owners
of Book-Entry Interests should receive from the DTC
Participant or Indirect Participant a written confirmation
of their purchase providing details of the Book-Entry
Interests acquired. Transfers of Book-Entry Interests will
be accomplished by book entries made by the DTC
Participants or Indirect Participants who act on behalf of
the owners of Book-Entry Interests. Owners of Book-Entry
Interests will not receive certificates representing their
ownership of Book-Entry Interests with respect to any
Securities except as described below upon the resignation
of DTC.
Under the Indenture, payments made by the Trustee to DTC
or its nominee will satisfy the Company's obligations under
the Indenture to the extent of the payments so made.
Owners of Book-Entry Interests will not be or be considered
by the Company or the Trustee to be, and will not have any
rights as, holders of Securities under the Indenture.
NEITHER THE COMPANY NOR THE TRUSTEE UNDER THE INDENTURE
WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO ANY DTC
PARTICIPANT, INDIRECT PARTICIPANT OR ANY OWNER OF A BOOK-ENTRY
INTEREST OR ANY OTHER PERSON NOT SHOWN ON THE
REGISTRATION BOOKS OF THE TRUSTEE AS BEING A HOLDER OF
SECURITIES WITH RESPECT TO: (1) ANY SECURITIES; (2) THE
ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC
PARTICIPANT OR INDIRECT PARTICIPANT; (3) THE PAYMENT BY DTC
OR ANY DTC PARTICIPANT OR INDIRECT PARTICIPANT OF ANY
AMOUNT DUE TO ANY OWNER OF A BOOK-ENTRY INTEREST IN RESPECT
OF THE PRINCIPAL OR REDEMPTION PRICE OF OR INTEREST ON SUCH
SECURITIES; (4) THE DELIVERY BY DTC OR ANY DTC PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY OWNER OF A
BOOK-ENTRY INTEREST WHICH IS REQUIRED OR PERMITTED UNDER
THE TERMS OF THE INDENTURE TO BE GIVEN TO HOLDERS OF
SECURITIES; (5) THE SELECTION OF THE OWNERS OF A BOOK-ENTRY
INTEREST TO RECEIVE PAYMENT IN THE EVENT OF ANY PARTIAL
REDEMPTION OF ANY SECURITIES; OR (6) ANY CONSENT GIVEN OR
OTHER ACTION TAKEN BY DTC OR ITS NOMINEE AS HOLDER OF
SECURITIES.
Principal and redemption price of, and interest payments
on, Securities registered in the name of DTC or its nominee
will be made to DTC or such nominee, as registered owner of
such Securities. DTC is responsible for disbursing such
payments to the appropriate DTC Participants and such DTC
Participants, and any Indirect Participants, are in turn
responsible for disbursing the same to the owners of Book-Entry
Interests. Unless it has reason to believe it will
not receive payment, DTC's current practice is to credit
the accounts of the DTC Participants on a payment date in
accordance with their respective holdings shown on the
records of DTC. Payments by DTC Participants and Indirect
Participants to owners of Book-Entry Interests will be
governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of
customers
<PAGE>
in bearer form or registered in "street name", and will be
the responsibility of such DTC Participant or Indirect
Participant and not of DTC, the Company or the Trustee,
subject to any statutory and regulatory requirements as may
be in effect from time to time.
DTC Participants and Indirect Participants carry the
"position" of the ultimate Book-Entry Interest owner on
their records, and will be responsible for providing
information to the ultimate Book-Entry Interest owner as to
the Securities in which the Book-Entry Interest is held,
debt service payments received, and other information.
Each person for whom a DTC Participant or Indirect
Participant acquires an interest in Securities, as nominee,
may desire to make arrangements with such DTC Participant
or Indirect Participant to receive a credit balance in the
records of such DTC Participant or Indirect Participant, to
have all notices of redemption or other communications to
or by DTC which may affect such persons forwarded in
writing by such DTC Participant or Indirect Participant,
and to have notification made of all debt service payments.
Purchases, transfers and sales of Book-Entry Interests by
the ultimate Book-Entry Interest owners may be made through
book entries made by DTC Participants or Indirect
Participants or others who act for the ultimate Book-Entry
Interest owner. The Trustee, the Company and the agents,
dealers or underwriters, as such, have no role in those
purchases, transfers or sales.
Owners of Book-Entry Interests may be charged a sum
sufficient to cover any tax, fee, or other governmental
charge that may be imposed in relation to any transfer or
exchange of a Book-Entry Interest.
The Trustee will recognize and treat DTC (or any
successor securities depository) or its nominee as the
holder of Securities registered in its name or the name of
its nominee for all purposes, including payment of debt
service, notices, enforcement of remedies and voting.
Under DTC's current practice, a proxy will be given to the
DTC Participants holding Book-Entry Interests in Securities
in connection with any matter on which holders of such
Securities are asked to vote or give their consent.
Crediting of debt service payments and transmittal of
notices and other communications by DTC to DTC
Participants, by DTC Participants to Indirect Participants
and by DTC Participants and Indirect Participants to the
ultimate Book-Entry Interest owners are the responsibility
of those persons and will be handled by arrangements among
them and are not the responsibility of the Trustee, the
Company or any agent, dealer or underwriter, as such.
The Trustee, so long as a book-entry system is used for
any series of Securities, will send any notice of
redemption and any other notices required by the Indenture
to be sent to holders of such Securities, only to DTC (or
such successor securities depository) or its nominee. Any
failure of DTC to advise any DTC Participant, or of any DTC
Participant or Indirect Participant to notify the Book-Entry
Interest owner, of any such notice and its content or
effect will not affect the validity of the redemption of
the Securities called for redemption, or any other action
premised on that notice. In the event of a call for
redemption, the Trustee's notification to DTC will initiate
DTC's standard call process, and, in the event of a partial
call, its lottery process by which the call will be
randomly allocated to DTC Participants holding positions in
the Securities to be redeemed. When DTC and DTC
Participants allocate the call for redemption, the owners
of the Book-Entry Interests that have been called should be
notified by the broker or other person responsible for
maintaining the records of those interests and subsequently
credited by that person with the proceeds once such
Securities are redeemed.
The Company, the Trustee and any dealer, underwriter or
agent cannot and do not give any assurances that DTC, DTC
Participants or others will distribute payments of debt
service on Securities made to DTC or its nominee as the
registered owner, or any redemption or other notices, to
the Book-Entry Interest owners, or that they will do so on
a timely basis, or that DTC will serve and act in the
manner described in this Prospectus.
The Company understands that the current "Rules"
applicable to DTC are on file with the Commission, and that
the current "Procedures" of DTC to be followed in dealing
with DTC Participants are on file with DTC.
If DTC is at any time unwilling or unable to continue as
depository, and a successor depository is not appointed by
the Company within 90 days, the Company will issue
individual certificates to owners of Book-Entry Interests
in exchange for the Securities held by DTC or its nominee.
In such instance, an owner of a Book-Entry Interest will be
entitled to physical delivery of certificates equal in
principal amount to such Book-Entry Interest and to have
such certificates registered in its name. Individual
certificates so issued will be issued in denominations of
$1,000 or any multiple thereof.
<PAGE>
Neither the Company, the Trustee nor any dealer, agent or
underwriter makes any representation as to the accuracy of
the above description of DTC's business, organization and
procedures, which is based upon information furnished by
DTC.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby:
(i) directly to purchasers, (ii) through agents, (iii)
through underwriters, (iv) through dealers or (v) through a
combination of any such methods of sale.
The distribution of the Securities may be effected from
time to time in one or more transactions either: (i) at a
fixed price or prices, which may be changed, or (ii) at
market prices prevailing at the time of sale, or (iii) at
prices related to such prevailing market prices, or (iv) at
negotiated prices.
Offers to purchase the Securities may be solicited
directly by the Company and sales thereof may be made by
the Company directly to institutional investors or others.
The terms of any such sales, including the terms of any
bidding or auction process, if utilized, will be described
in the Prospectus Supplement relating thereto.
Offers to purchase Securities may be solicited by agents
designated by the Company from time to time. Any such
agent, which may be deemed to be an underwriter as that
term is defined in the Securities Act, involved in the
offer or sale of the 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 best efforts basis for the period of its
appointment.
If an underwriter or underwriters are used in the sale,
the Company will execute an underwriting agreement with
such underwriters at the time of 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 Securities
in respect of which this Prospectus is delivered to the
public.
If a dealer is used in the sale of the Securities in
respect of which this Prospectus is delivered, the Company
will sell such Securities to the dealer as principal. The
dealer may then resell such Securities to the public at
varying prices to be determined by such dealer at the time
of resale. The name of the dealer and the terms of the
transactions will be set forth in the Prospectus Supplement
relating thereto.
In the event the Securities are not listed on a national
securities exchange, certain broker-dealers may make a
market in the Securities, but will not be obligated to do
so and may discontinue any market making at any time
without notice. No assurance can be given that any
broker-dealer will make a market in the Securities or as to the
liquidity of the trading market for the Securities, whether
or not the Securities are listed on a national securities
exchange. The Prospectus Supplement with respect to the
Securities will state, if known, whether or not any
broker-dealer intends to make a market in the Securities. If
no such determination has been made, the Prospectus Supplement
will so state.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase
Securities from the Company at the public offering price
set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be
subject only to those conditions set forth in the
Prospectus Supplement and the Prospectus Supplement will
set forth the commission payable for the solicitation of
such contracts.
Underwriters, dealers, agents and other persons may be
entitled, under agreements which may be entered into with
the Company, to indemnification against certain civil
liabilities, including liabilities under the Securities
Act. Agents, underwriters and dealers, or their
affiliates, may be customers of, engage in transactions
with, or perform services for the Company in the ordinary
course of business.
The place and time of delivery for the Securities in
respect of which this Prospectus is delivered will be set
forth in the accompanying Prospectus Supplement.
<PAGE>
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement,
certain legal matters in connection with the Securities
offered hereby will be passed upon for the Company by the
General Counsel or Associate General Counsel to the
Company. The General Counsel and Associate General
Counsels are employees of the Company and owned as of
February 1, 1998, directly and beneficially, in the
aggregate less than 0.5% of the Company's Common Stock
outstanding as of such date.
EXPERTS
The financial statements incorporated in this Prospectus
by reference to the Company's Annual Report on Form 10-K
for the year ended October 31, 1997 have been so incorporated
in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
An itemized statement of the amount of all expenses,
other than any underwriting discounts, commissions and
other selling compensation, incurred by the Registrant in
connection with the issuance and distribution of the
Securities follows:
Securities and Exchange Commission
Registration Fee $ 59,000
Trustee's Fees and Expenses 20,000
Printing and Engraving Expenses 5,000
Rating Agency Fees 100,000
Accounting Fees and Expenses 8,000
Legal Fees and Expenses 15,000
Blue Sky and Legal Investment
Fees and Expenses 10,000
Miscellaneous Expenses 15,000
------------
Total $ 232,000
All of the above, other than the Securities and Exchange
Commission registration fee, are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State
of Delaware permits indemnification of directors, officers,
employees and agents of corporations under certain
conditions and subject to certain limitations. Section 14
of Article III of the Company's bylaws provides for
indemnification of any director, officer, employee or agent
of the Registrant, or any person serving in the same
capacity in any other enterprise at the request of the
Registrant, under certain circumstances. As permitted by
Section 102(b)(7) of the Delaware General Corporation Law,
Article 6 of the Company's Certificate of Incorporation
eliminates the liability of directors of the Registrant
under certain circumstances for breaches of fiduciary duty
to the Company and its stockholders.
The Registrant is insured against certain liabilities
which it may incur by reason of Article III, Section 14, of
its Bylaws. In addition, officers and directors are
insured, at the expense of the Registrant, against certain
liabilities which might arise out of their employment and
which might not be subject to indemnification under the
Bylaws.
Item 16. Exhibits.
Exhibit
Number Description of Exhibits
1.1 Form of Distribution Agreement relating to the
offer and sale of Debt Securities of the
Registrant, including a list of terms to be
included in the Terms Agreement
4.1 Restated Certificate of Incorporation of
Harnischfeger Industries, Inc. (incorporated by
<PAGE>
reference to Exhibit 3(a) to Report of
Harnischfeger Industries, Inc., on Form 10-Q for
the quarter ended April 30, 1997)
4.2 Bylaws of Harnischfeger Industries, Inc., as
amended on April 15, 1997 (incorporated by
reference to Exhibit 3(b) to Report of
Harnischfeger Industries, Inc. on Form 10-Q for the
quarter ended April 30, 1997)
4.3 Certificate of Designations of Preferred Stock,
Series D, (incorporated by reference to Exhibit
28.1 (b) to Harnischfeger Industries, Inc. Current
Report on Form 8-K dated March 25, 1992)
4.4 Rights Agreement dated as of February 8, 1989
between Harnischfeger Industries, Inc. and the
First National Bank of Boston, as Rights Agent,
which includes as Exhibit A the Certificate of
Designations of Preferred Stock, Series D, setting
forth the terms of the Preferred Stock, Series D;
as Exhibit B the Form of Rights Certificate; and as
Exhibit C the Summary of Rights to Purchase
Preferred Stock, Series D (incorporated by
reference to Exhibit 1 to Harnischfeger Industries,
Inc. Registration Statement on Form 8-A filed on
February 9, 1989)
4.5 Amendment No. 1 to Rights Agreement dated as of
October 9, 1995 (incorporated by reference to
Exhibit 4(j) to Annual Report of Harnischfeger
Industries, Inc. on Form 10-K for the year ended
October 31, 1997, File No. 1-9299)
4.6 Indenture dated as of March 1, 1992 between the
Registrant and First Trust National Association
f.k.a. First Trust of Illinois, National
Association (successor to Continental Bank,
National Association), as Trustee (the "Trustee")
(incorporated by reference to Exhibit 4(f) to
Annual Report of Harnischfeger Industries, Inc. on
Form 10-K for the year ended October 31, 1992, File
No. 1-9299)
4.7 First Supplemental Indenture dated as of June 12,
1992 between the Registrant and Trustee
(incorporated by reference to Exhibit 4(g) to
Annual Report of Harnischfeger Industries, Inc. on
Form 10-K for the year ended October 31, 1992, File
No. 1-9299)
4.8 Letter dated April 4, 1996 of Trustee accepting
appointment as successor trustee (incorporated by
reference to Exhibit 4.3 to Registration Statement
on Form S-3, File No. 333-2401)
4.9 Form of Fixed Rate Note (incorporated by reference
to Exhibit 4.3 to Registration Statement on Form
S-3, File No. 33-51436)
4.10 Form of Floating Rate Note (incorporated by
reference to Exhibit 4.4 to Registration Statement
on Form S-3, File No. 33-51436)
4.11 $500,000,000 Credit Agreement dated as of October
17, 1997 among Harnischfeger Industries, Inc. as
borrower and each other financial institution which
from time to time thereto as lenders, Chase
Manhattan Bank as Administrative Agent, First
Chicago Markets, Inc. as Syndication Agent and
Royal Bank of Canada as Documentation Agent
(incorporated by reference to Exhibit 4(n) to
Report of Harnischfeger Industries, Inc. on Form
10-K for the year ended October 31, 1997, File No.
1-9299).
<PAGE>
5.1 Opinion of Eric B. Fonstad, Associate General
Counsel to the Registrant
12.1 Computation of Consolidated Ratio of Earnings to
Fixed Charges
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Eric B. Fonstad, Esq. (contained in
Exhibit 5.1)
24.1 Powers of Attorney (included in the signature page)
25.1 Form T-1, Statement of Eligibility under the Trust
Indenture Act of 1939 of the Trustee (separately
bound)
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(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, as amended;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
the registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective 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) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or 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, as amended, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be in the
<PAGE>
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) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act of 1933, as amended, each filing of the
Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as
amended, that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933, as amended, may be
permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item
15 above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended, and
is, therefore, unenforceable. In the event 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 defense of any action, suit or
proceeding) is asserted against the Registrant 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 whether such
indemnification by it is against public policy as expressed
in the Securities Act of 1933, as amended, and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, Harnischfeger Industries, Inc. certifies that
it has reasonable grounds to believe that it meets all of
the requirements for filing this Registration Statement 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 St. Francis, State of Wisconsin,
on February 17, 1998.
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ James A. Chokey
-----------------------
James A. Chokey
Executive Vice President for Law and
Government Affairs
Each of the undersigned hereby constitutes and
appoints each of Jeffery T. Grade, Francis M. Corby, Jr.
and James A. Chokey his or her true and lawful attorney-in-fact
and agent, for him or her and in his or her behalf and
his or her name, place and stead, in any and all
capacities, to sign, execute and file any amendment or
amendments to this Registration Statement, with all
exhibits and any and all documents and supplementary
information required to be filed with respect thereto,
granting unto said attorneys, and each of them, full power
and authority to do and perform each and every act and
thing requisite and necessary to be done in order to
effectuate the same as fully to all intents and purposes as
he himself or she herself might or could do if personally
present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by
the following persons in the capacities indicated on
December 8, 1997.
/s/Jeffery T. Grade Jeffery T. Grade
-------------------
Jeffery T. Grade Chairman, Chief Executive Officer
and Director
/s/Francis M. Corby, Jr. Francis M. Corby, Jr.
------------------------
Francis M. Corby, Jr. Executive Vice President for
Finance and Administration
(Chief Financial Officer)
and Director
/s/James C. Benjamin James C. Benjamin
--------------------
James C. Benjamin Vice President and Controller
(Chief Accounting Officer)
/s/Donna M. Alvarado Director
--------------------
Donna M. Alvarado
/s/Larry D. Brady Director
--------------------
Larry D. Brady
/s/John D. Correnti Director
--------------------
John D. Correnti
/s/Harry L. Davis Director
--------------------
Harry L. Davis
/s/Robert M. Gerrity Director
--------------------
Robert M. Gerrity
/s/John N. Hanson Director
--------------------
John N. Hanson
/s/Robert B. Hoffman Director
--------------------
Robert B. Hoffman
/s/Ralph C. Joynes Director
--------------------
Ralph C. Joynes
/s/Jean-Pierre Labruyere Director
---------------------
Jean-Pierre Labruyere
/s/L. Donald LaTorre Director
---------------------
L. Donald LaTorre
/s/Leonard Redon Director
---------------------
Leonard Redon
/s/Donald Taylor Director
---------------------
Donald Taylor
<PAGE>
EXHIBIT 1.1
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
DISTRIBUTION AGREEMENT
[Date]
[Agents]
Dear Sirs:
Harnischfeger Industries, Inc., a Delaware
corporation (the "Company"), and
(the "Agents") enter into this agreement ("Agreement")
with respect to the issue and sale by the Company of its
debt securities (the "Notes"). The Notes are to be issued
pursuant to an indenture dated as of March 1, 1992, as
supplemented by a supplemental indenture dated as of June
12, 1992 (collectively, the "Indenture"), between the
Company and First Trust of Illinois, National Association
(successor to Continental Bank, National Association), as
trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance of up to $250,000,000
aggregate principal amount (or, if issued at an original
issue discount, such greater principal amount as shall
result in an aggregate initial offering price of up to
$250,000,000) of Notes for distribution through or sale to
the Agents pursuant to the terms of this Agreement or for
sale by the Company directly to purchasers on its own
behalf. It is understood, however, that the Company may
from time to time authorize the issuance of additional
Notes and that such Notes may be distributed through or
sold to the Agents pursuant to the terms of this Agreement
or sold by the Company directly to purchasers on its own
behalf, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of
Notes by the Company directly to purchasers through the
Agents, in which case the Agents will act as agents of the
Company in soliciting Note purchasers, and (as may from
time to time be agreed to by the Company and the Agents) to
the Agents as principals for resale to purchasers.
Additional terms of any sale of Notes to the Agents as
principals will be set out in a Terms Agreement relating to
such sale, all as more fully provided herein. No Agent is
authorized to appoint sub-agents or to engage the services
of any other broker or dealer in connection with the offer
or sale of the Notes.
Subject to the terms and conditions stated herein
and to the reservation by the Company of the right to sell,
solicit and accept offers to purchase Notes directly on its
own behalf, the Company hereby (i) appoints each of the
Agents to act as the agent of the Company for the purpose
of soliciting purchases of the Notes from the Company by
others and (ii) agrees that whenever the Company determines
to sell Notes directly to any of the Agents as principal
for
<PAGE>
resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance
with the provisions of section 2(b) hereof. In soliciting
purchases of the Notes from the Company, each Agent is
acting solely as agent for the Company and not as
principal. Each Agent will use its reasonable best efforts
to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company
has been solicited by such Agent as agent and accepted by
the Company.
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333- ) for the registration
of the Notes under the Securities Act of 1933 (the "1933
Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has
been qualified under the Trust Indenture Act of 1939 (the
"1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company
for the purpose of registering additional Notes and in
connection with which this Agreement is included as an
exhibit) and the prospectus constituting a part thereof,
and any prospectus supplements (including any pricing
supplements) relating to the Notes, including all documents
incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant
to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and "Prospectus", respectively,
except that if any revised prospectus shall be provided to
the Agents by the Company for use in connection with the
offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first
provided to the Agents for such use.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each of
the Agents as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase of
Notes (whether through any of the Agents as agent or by any
of the Agents as principal), as of the date of each
delivery of Notes (whether through any of the Agents as
agent or to any of the Agents as principal) (the date of
each such delivery to an Agent as principal being hereafter
referred to as a "Settlement Date"), and as of the times
referred to in Section 6(a) hereof (each of the times
referenced above being referred to hereafter as a "Repre-
sentation Date"), as follows:
(i) Due Incorporation and Qualification.
The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware with corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
<PAGE>
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the
Company that is a "significant subsidiary" as defined
in Rule 405 of Regulation C of the 1933 Act
Regulations (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable (except to the extent provided for in
Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted) and,
except as set forth in the Notes to Exhibit 21 to the
Company's Annual Report on Form 10-K for the year
ended October 31, 1995 ("Exhibit 21"), is owned by
the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim.
(iii) Registration Statement and Prospectus.
At the time the Registration Statement became
effective, the Registration Statement complied, and
as of the applicable Representation Date will comply,
in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and the 1939
Act and the rules and regulations of the Commission
promulgated thereunder. The Registration Statement,
at the time it became effective, did not, and at each
time thereafter at which any amendment to the
Registration Statement becomes effective and any
Annual Report on Form 10-K is filed by the Company
with the Commission and as of the applicable
Representation Date, will not, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or neces-
sary to make the statements therein not misleading.
The Prospectus, as of the date hereof does not, and
as of the applicable Representation Date will not,
contain an untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, however, that the
representations and warranties in this subsection
shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in
reliance upon and in conformity with the information
furnished to the Company in writing by the Agents
expressly for use in the Registration Statement or
Prospectus or to that part of the Registration
Statement which constitutes the Trustee's Statement
of Eligibility under the 1939 Act (Form T-1).
(iv) Incorporated Documents. The documents in-
corporated by reference in the Prospectus, at the
time they were or hereafter are filed with the
Commission, complied and
<PAGE>
will comply in all material respects with the
requirements of the 1934 Act and the rules and
regulations thereunder (the "1934 Act Regulations"),
and, when read together and with the other
information in the Prospectus, did not 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,
in the light of the circumstances under which they
were or are made, not misleading.
(v) Accountants. The accountants who
certified the financial statements included or
incorporated by reference in the Prospectus are
independent accountants as required by the 1933 Act
and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements and summary financial information included
or incorporated by reference in the Registration
Statement and the Prospectus present fairly the
consolidated financial position of the Company and
its consolidated subsidiaries as at the dates
indicated and the consolidated results of their
operations for the periods specified; and except as
stated therein, said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a consistent basis
throughout such periods.
(vii) Material Changes or Material
Transactions. Since the respective dates as of which
information is given in the Registration Statement
and Prospectus, except as otherwise stated therein or
contemplated thereby, there has been no material
adverse change in the condition, financial or
otherwise, or in the earnings, results of operations,
assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business.
(viii) No Defaults. Neither the Company
nor any of its subsidiaries is in violation of its
charter or in default in the performance or
observance of any obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or
any of them or their properties may be bound, which
violation or default would have a materially adverse
effect on the Company and its subsidiaries considered
as one enterprise; and the execution and delivery of
this Agreement, the Indenture and each applicable
Terms Agreement, if any, and the consummation of the
transactions contemplated herein and therein have
been duly authorized by all necessary corporate
action and will not conflict with or constitute a
breach of, or a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any
such subsidiary is a party or by which it or any of
them may be bound or to which any of the property or
assets of the Company or any such subsidiary is
subject, except for such of the foregoing which would
not have a material adverse effect on the Company and
its subsidiaries considered as one enterprise, nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company
or any law, administrative regulation or
administrative or court order or decree.
<PAGE>
(ix) Labor Disputes. Except as may be
disclosed in the Registration Statement, no labor
disputes with the employees of the Company or its
subsidiaries exist which could reasonably be expected
to result in any material adverse change in the
condition, financial or otherwise, or in the
earnings, results of operations, assets, or
liabilities of the Company and its subsidiaries
considered as one enterprise.
(x) Legal Proceedings; Contracts. Except as
may be disclosed in the Registration Statement, there
is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting, the Company
or any of its subsidiaries, which is required to be
disclosed in the Registration Statement, or which
could reasonably be expected to result in any
material adverse change in the condition, financial
or otherwise, or in the earnings, results of
operations, assets or liabilities of the Company and
its subsidiaries considered as one enterprise, or
could reasonably be expected to materially and
adversely affect the properties or assets thereof or
could reasonably be expected to materially and
adversely affect the consummation of this Agreement
or any Terms Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xi) No Authorization, Approval or Consent
Required. No authorization, approval or consent of
any court or governmental authority or agency is
necessary in connection with the sale of the Notes
hereunder, except such as may be required under the
1933 Act or the 1933 Act Regulations, the 1939 Act or
state securities laws.
(xii) Regulatory Certificates, Authorities and
Permits. The Company and its subsidiaries possess
such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory
agencies or bodies, necessary to conduct the business
now operated by them, except for such certificates,
authorities or permits the failure to possess which
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its
subsidiaries has received any notice of proceedings
relating to the revocation or modification of any
such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and
adversely affect the condition, financial or
otherwise, or the earnings, results of operations,
assets or liabilities of the Company and its
subsidiaries considered as one enterprise.
(xiii) Authorization and Validity of the
Notes. The Notes have been duly authorized for
issuance and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture
against payment of the consideration therefor
specified in the Prospectus or in any Terms
Agreement, the Notes will constitute valid and
legally binding obligations of the Company
enforceable in accordance with their terms, except as
enforcement thereof may be limited
<PAGE>
by bankruptcy, insolvency, or other laws relating to
or affecting enforcement of creditors' rights or by
general equity principles; the Notes and the
Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all
material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be
entitled to the benefits provided by the Indenture.
(xiv) The Company has complied with all
provisions of Section 1 of Laws of Florida, Chapter
92-198 Securities-Business with Cuba.
(b) Any certificate signed by any officer of the
Company and delivered to any Agent or to counsel for the
Agents in connection with an offering of Notes shall be
deemed a representation and warranty by the Company to such
Agent as to the matters covered thereby.
SECTION 2. Solicitations as Agents: Purchases as
Principal.
(a) Solicitations As Agents. On the basis of the
representations and warranties herein contained, but
subject to the terms and conditions herein set forth and to
the reservation by the Company of the right to sell,
solicit and accept offers to purchase Notes directly on its
own behalf, each of the Agents agrees, as agent of the
Company, to use its reasonable best efforts to solicit
offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus.
The Company reserves the right, in its sole
discretion, to suspend the solicitation of offers to
purchase Notes commencing at any time for any period of
time or permanently by any or all of the Agents. Upon
receipt of instructions from the Company, each of the
Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage
of the principal amount of each Note sold by the Company as
a result of a solicitation made by such Agent as set forth
in Exhibit A hereto.
As agent, each Agent is authorized to solicit offers
to purchase Notes only in denominations of $100,000 or any
amount in excess thereof which is an integral multiple of
$1,000, at a purchase price equal to 100% of their
principal amount, unless otherwise agreed to by the Company
and the Agent soliciting an offer to purchase such Notes.
Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes received
by such Agent as agent. Each Agent shall have the right to
reject, in whole or in part, any offer to purchase Notes
received by such Agent which it does not deem, in its
discretion reasonably exercised, to be reasonable, and any
such rejection shall not be deemed a breach of such Agent's
agreement contained herein. The Company shall have the
sole right to accept offers to purchase Notes and may
reject any such offer in whole or in part. The interest
rate, maturity date and other terms of the Notes shall be
agreed upon by the Company and the Agent soliciting the
offer to purchase such Notes and shall be set forth in a
pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer for
the purchase of Notes.
<PAGE>
The Company will promptly notify each Agent of the
principal amounts of any Notes sold directly by it, and of
the settlement dates of such sales.
Notwithstanding anything to the contrary contained
herein, the Company may authorize any other persons,
partnerships or corporations ("Additional Agents") to act
as its agent to solicit offers for the purchase of all or
part of the Notes of the Company upon thirty days' prior
notice to such Agents as are at such time parties to this
Agreement (subject to the provisions of Section 10(b)
hereof), provided, however, that the appointment of an
Additional Agent shall be on terms no more favorable to
such Additional Agent than the terms of this Agreement,
including, specifically, commissions.
(b) Purchases as Principal. Each sale of Notes to
an Agent as principal shall be made in accordance with the
terms of this Agreement and a separate agreement, which may
be an oral agreement, which will provide for the sale of
such Notes to, and the purchase and reoffering thereof by,
such Agent (a "Terms Agreement"). Each Terms Agreement, if
written, shall be substantially in the form of Exhibit B
hereto and may take the form of an exchange of any standard
form of written telecommunication between such Agent and
the Company and, if oral, shall address the items set forth
in Exhibit B. The Agent's commitment to purchase Notes
pursuant to any Terms Agreement 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 set forth.
(c) Administrative Procedures. Administrative
procedures with respect to the sale of Notes shall be as
agreed upon from time to time in writing by the Agents and
the Company (the "Procedures"). The Agents and the Company
agree to perform the respective duties and obligations
specifically provided to be performed by the Agents and the
Company herein and in the Procedures.
SECTION 3. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will
notify the Agents promptly (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the filing
with the Commission of any supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act which
will be incorporated by reference in the Prospectus, (iii)
of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus,
(iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement
to the Prospectus or for additional information with
respect to such amendment or supplement, and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest
possible moment.
<PAGE>
(b) Notice of Certain Proposed Filings. The
Company will give the Agents notice of its intention to
file or prepare any additional registration statement with
respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than the Company's
Quarterly Reports on Form 10-Q, the Company's Annual Report
on Form 10-K or a pricing supplement to the Prospectus
relating solely to the specific interest rate, maturity
dates, redemption provisions and other similar terms of
Notes in respect of which the Company has accepted an offer
to purchase), whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will
furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be.
(c) Copies of the Registration Statement and the
Prospectus. The Company has delivered or will deliver to
the Agents four signed and as many conformed copies of the
Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents
may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so
long as the Agents are required to deliver a Prospectus in
connection with the sales or solicitations of offers to
purchase the Notes.
(d) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (j) of this
Section 3, if, at any time when the Prospectus is required
to be delivered in connection with sales of the Notes, any
event shall occur or condition exist as a result of which
it is necessary, in the written opinion of counsel for the
Agents delivered to the Company or counsel for the Company,
to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in
the opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933
Act Regulations, upon receipt by the Company of any such
opinion of counsel immediate notice shall be given, and
confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the
Agents may then own as principals, and the Company will
promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply
with such requirements.
(e) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection
(j) of this Section 3, on or as soon as practicable after
the date on which there shall be released to the general
public interim financial statement information related to
the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Company shall furnish such information to the Agents, con-
firmed in writing, and (i) if such information reflects a
material adverse change
<PAGE>
in the financial condition or results of operations of the
Company and its subsidiaries considered as one enterprise
in the light of the financial information with respect to
the comparable period of the preceding fiscal year included
or incorporated by reference in the Registration Statement
or the Prospectus or (ii) upon the reasonable request of
any Agent, shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference capsule
financial information with respect thereto and
corresponding information for the comparable period of the
preceding fiscal year, as well as such other information
and explanations as shall be necessary for an understanding
thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(f) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection
(j) of this Section 3, on or as soon as practicable after
the date on which there shall be released to the general
public financial information included in or derived from
the audited financial statements of the Company for the
preceding fiscal year, the Company (i) if such information
reflects a material adverse change in the financial
condition or results of operations of the Company and its
subsidiaries considered as one enterprise in the light of
the financial information with respect to the comparable
period of the preceding fiscal year included or
incorporated by reference in the Registration Statement or
the Prospectus or (ii) upon the reasonable request of any
Agent, shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or
otherwise, to include or incorporate by reference such
financial information, as well as such other information
and explanations as shall be necessary for an understanding
of such financial information or as shall be required by
the 1933 Act or the 1933 Act Regulations.
(g) Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933
Act) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect
to each sale of Notes.
(h) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify the
Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for
the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and
reports as may be required by the laws of each jurisdiction
in which the Notes have been qualified as provided above.
(i) 1934 Act Filings. The Company, during the
period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
<PAGE>
(j) Suspension of Certain Obligations. The Company
shall not be required to comply with the provisions of
subsections (d), (e) or (f) of this Section 3 during any
period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company in accordance
with Section 2(a) and (ii) the Agents shall not then hold
any Notes as principals purchased pursuant to a Terms
Agreement, to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with
the appropriate Agents.
(k) No Sale of Debt Securities Prior to Settlement
Date. Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the
Company will not, without the prior consent of the
respective Agent party to such Terms Agreement, offer or
sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Notes which are
to be sold pursuant to such Terms Agreement and commercial
paper in the ordinary course of business), except as may
otherwise be provided in any such Terms Agreement.
SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement,
including:
(i) The preparation and filing of the
Registration Statement and all amendments thereto and
the Prospectus and any amendments or supplements
thereto;
(ii) The preparation, filing and, if requested
by the Company, printing of this Agreement;
(iii) The preparation, printing, issuance and
delivery of the Notes;
(iv) The fees and disbursements of the
Company's accountants and counsel and of the Trustee;
(v) The reasonable fees and disbursements of
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
(vi) The qualification of the Notes under the
securities laws in accordance with the provisions of
Section 3(h), including filing fees and the
reasonable fees and disbursements of counsel to the
Agents in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal
Investment Survey (such fees of counsel with respect
to the first of such Surveys prepared hereunder not
to exceed $10,000);
(vii) The printing and delivery to the Agents
in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents
of the
<PAGE>
Prospectus and any amendments or supplements thereto
in connection with solicitations or confirmations of
sales of the Notes;
(viii) The preparation, printing (if
requested by the Company) and delivery to the Agents
of copies of the Indenture;
(ix) Any fees charged by rating agencies for
the rating of the Notes;
(x) The fees and expenses, if any, incurred
with respect to any filing with the National
Association of Securities Dealers, Inc.; and
(xi) Any reasonable advertising and other
out-of-pocket expenses of the Agents incurred with
the approval of the Company.
SECTION 5. Conditions of Obligations.
The obligation of each of the Agents to solicit
offers to purchase the Notes as agent of the Company and
the obligation of any of the Agents to purchase Notes
pursuant to any Terms Agreement will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of
the Company's officers made in the most recent certificate
furnished to such Agent pursuant to the provisions of
Section 5(b) or Section 6(a) hereof, to the performance and
observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed
and to the following additional conditions precedent:
(a) Legal Opinions. At Closing Time (as defined in
Section 5(d) hereof) and at each Settlement Date with
respect to any applicable Terms Agreement, if called for by
such Terms Agreement, the Agents shall have received the
following legal opinions, dated as of the Closing Time or
such Settlement Date, as applicable, and in form and
substance satisfactory to the Agents:
(1) Opinion of General Counsel. The opinion
of either the General Counsel or the Associate General
Counsel to the Company, 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 State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and conduct its business as described in the
Registration Statement.
(iii) To the best of such counsel's knowledge,
the Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on
the condition, financial or otherwise, or the
earnings, results of operations, assets or
liabilities of the Company and its subsidiaries
considered as one enterprise.
<PAGE>
(iv) Each Significant Subsidiary of the
Company listed in Exhibit 21 has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and
authority to own, lease and operate its properties
and conduct its business as described in the
Registration Statement, and, to the best of such
counsel's knowledge, is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on
the condition, financial or otherwise, or the
earnings, results of operations, assets or
liabilities of the Company and its subsidiaries
considered as one enterprise; all of the issued and
outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable (except
to the extent provided for in Section 180.0622(2)(b)
of the Wisconsin Business Corporation Law, as
judicially interpreted), and all of such capital
stock, except as set forth in the Notes to Exhibit
21, is owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance or claim. As used herein, the
terms "subsidiaries" and "subsidiary" do not include
any subsidiary that has no material assets or
liabilities.
(v) This Agreement (and, if the opinion is
being given pursuant to Section 6(b) hereof as a
result of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) has been
duly authorized, executed and delivered by the
Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized,
executed and delivered by the Trustee) constitutes a
valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles.
(vii) The Notes are in due and proper form,
have been duly and validly authorized by all
necessary corporate action and, when executed and
authenticated as specified in the Indenture and
delivered against payment of the consideration
therefor determined in accordance with this Agreement
(and the Terms Agreement, if applicable), will be
valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and each holder of Notes will be entitled
to the benefits of the Indenture.
(viii) The statements in the Prospectus
under the captions "Description of Securities" and
"Description of Notes" insofar as they purport to
summarize certain provisions of documents
specifically referred to therein, are accurate
summaries of such provisions in all material
respects.
<PAGE>
(ix) To the best of such counsel's knowledge,
there are no legal or governmental proceedings
pending or threatened which are required to be
disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or of which any of their
property is the subject which are not described in
the Registration Statement, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material.
(x) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan
agreements, notes, deeds of trust, leases or other
instruments required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions
thereof or references thereto are correct in all
material respects, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
deed of trust, lease or other instrument so
described, referred to, filed or incorporated by
reference.
(xi) No consent, approval, authorization,
order or decree of any court or governmental
authority or agency is required in connection with
the sale of the Notes, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities laws; and, except for
such of the following which would not have a material
adverse effect on the Company and its subsidiaries
considered as one enterprise, the execution and
delivery of this Agreement (and, if the opinion is
being given pursuant to Section 6(b) hereof on
account of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) and the
Indenture and the consummation of the transactions
contemplated herein and therein will not conflict
with or constitute a breach of, or a default under,
or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel
and to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or any
law, administrative regulation or administrative or
court order or decree known to such counsel to be
applicable to the Company of any court or
governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(xii) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
(other than the financial statements and the notes
thereto and the supporting schedules and other finan-
cial and statistical data derived therefrom or
included or incorporated by reference therein, as to
which no opinion need be given) complied when filed
as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
<PAGE>
(xiii) The information contained under the
caption "Properties" and under the caption "Legal
Proceedings" in the Company's Annual Report on Form
10-K for the year ended October 31, 1995, to the
extent that such disclosed information constitutes
matters of law or legal conclusions, has been
reviewed by such counsel and is correct in all
material respects.
(ixx) The Indenture is qualified under the 1939
Act.
(xx) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xxi) At the time the Registration Statement
became effective, the Registration Statement (other
than the financial statements and the notes thereto
and the supporting schedules and other financial and
statistical data derived therefrom and included or
incorporated by reference therein, as to which no
opinion need be given) complied as to form in all
material respects with the requirements of the 1933
Act, the 1939 Act and the regulations under each of
those Acts.
(2) Opinion of Counsel to the Agents. The
opinion of , counsel
to the Agents, covering the matters referred to above in
subparagraph (1) under the subheadings (i) and (v) to
(viii), inclusive.
(3) In giving their opinions required by
subparagraph (a)(1) and (a)(2) of this Section, such
counsel shall each additionally state that nothing has come
to their attention that would lead them to believe that the
Registration Statement, at the time it became effective,
and if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company
with the Commission subsequent to the effectiveness of the
Registration Statement (other than the financial statements
and the notes thereto and the supporting schedules and
other financial and statistical data derived therefrom and
included or incorporated by reference therein, as to which
no opinion need be rendered), then at the time such
amendment became effective or at the time of the most
recent such filing, and at the date hereof, 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 or that the
Prospectus (other than the financial statements and the
notes thereto and the supporting schedules and other
financial and statistical data derived therefrom and
included or incorporated by reference therein, as to which
no opinion need be rendered), as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 6(b)
hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contains an untrue statement of a material fact or omits 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.
<PAGE>
Each of [Company's Counsel] and [Agents' Counsel] in
rendering their respective opinion, may rely as to matters
of fact to the extent they deem proper and specify in such
opinion on certificates of responsible officers of the
Company and its subsidiaries and public officials.
Each of [Company's Counsel] and [Agents' Counsel] may
limit his or their opinion to matters relating to United
States federal law, the law of the States of New York,
Illinois and Wisconsin, and the corporate law of the State
of Delaware. Insofar as the opinion expressed in Section
5(a)(1) is covered by the laws of the State of New York,
[Company's Counsel] may assume that the laws of such
jurisdiction are not materially different than the laws of
the State of Wisconsin and the interpretations thereof.
(b) Officer's Certificate. At Closing Time and at
each Settlement Date with respect to any Terms Agreement,
there shall not have been, since the respective dates as of
which information is given in the Registration Statement
and the Prospectus or since the date of such Terms
Agreement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, results
of operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as
contemplated or set forth in the Prospectus; and at Closing
Time and, if called for by the applicable Terms Agreement,
at the Settlement Date with respect thereto the Agents
shall have received a certificate of the Chairman of the
Board, the President, the Chief Financial Officer or any
Vice President of the Company, substantially in the form of
Appendix I hereto and dated as of the Closing Time or such
Settlement Date, to the effect that, to the best knowledge
of such person, after reasonable investigation, (i) there
has been no such material adverse change, (ii) the other
representations and warranties of the Company contained in
Section 1 are true and correct with the same force and
effect as though expressly made at and as of the date of
such certificate, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to this Agreement or any
applicable Terms Agreement at or prior to the date of such
certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or
threatened by the Commission.
(c) Comfort Letter. At the Closing Time and, if
called for by any Terms Agreement, at each Settlement Date
with respect to such Terms Agreement, the Agents shall have
received a letter from Price Waterhouse LLP, dated as of
such date and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within
the meaning of the 1933 Act and the 1933 Act
Regulations.
(ii) In their opinion, the consolidated finan-
cial statements of the Company and its subsidiaries
audited by them and included or incorporated by
reference in the Registration Statement comply as to
form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to registration
statements on Form S-3 and the 1934 Act and the 1934
Act Regulations.
<PAGE>
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the
latest available unaudited interim financial data of
the Company and its consolidated subsidiaries, a
reading of the minute books of the Company since the
end of the most recent fiscal year with respect to
which an audit report has been issued, inquiries of
and discussions with certain officials of the Company
responsible for financial and accounting matters with
respect to the unaudited consolidated financial data
included in the Registration Statement and Prospectus
and the latest available unaudited interim financial
data of the Company and its subsidiaries, and such
other inquiries and procedures as may be specified in
such letter, and on the basis of such inquiries and
procedures nothing came to their attention that
caused them to believe that (A) the unaudited
consolidated financial data included or incorporated
by reference in the Registration Statement and
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations or,
unless otherwise disclosed, were not stated on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference therein, or (B) at a specified date not
more than five business days prior to the date of
such letter (or, if no consolidated financial data as
of such date is available, at the most recent date
for which consolidated financial data is available),
there was any change that can be determined in the
consolidated capital stock or any increase in
consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net
assets or shareholders equity of the Company and its
subsidiaries, in each case as compared with the
amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration
Statement and Prospectus or, during the period from
the date of such balance sheet to the most recent for
which consolidated financial data is available, there
were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated revenues or net income of the Company
and its subsidiaries, except in each such case as set
forth in or contemplated by the Registration
Statement and Prospectus or except for such
exceptions enumerated in such letter as shall have
been agreed to by the Agents and the Company.
(iv) In addition to the audit referred to in
their report included or incorporated by reference in
the Registration Statement and the Prospectus, and
the limited procedures referred to in clause (iii)
above, they have carried out certain other specified
procedures, not constituting an audit, with respect
to certain amounts, percentages and financial
information which are included or incorporated by
reference in the Registration Statement and
Prospectus and which are specified by the Agents and
agreed to by the independent accountants which are of
a nature customarily the subject of accountants'
comfort letters, and have found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries
identified in such letter.
(d) Other Documents. At Closing Time and on each
Settlement Date with respect to any applicable Terms
Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such
<PAGE>
counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory
in form and substance to the Agents and to counsel to the
Agents.
If any condition specified in this Section 5 shall
not have been fulfilled when and as required to be
fulfilled, this Agreement and any Terms Agreement may be
terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of
any party to any other party, except that the covenant set
forth in Section 3(g) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth
in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
The documents required to be delivered by this Sec-
tion 5 hereof shall be delivered at the office of [Agent's
Counsel], on the date hereof, or at such other time and
place as the Agents and the Company may agree upon in
writing (the "Closing Time").
SECTION 6. Subsequent Documentation Requirements of
the Company.
The Company covenants and agrees that:
(a) Subsequent Delivery of Certificates. Each time
that 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 of Notes or similar changes), or (unless the Agents
shall have suspended solicitation of purchases of Notes in
their capacity as agents pursuant to a request from the
Company in accordance with Section 2(a)) there is filed
with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form
8-K relating exclusively to the issuance of debt securities
under the Registration Statement, unless the Agents shall
otherwise specify) or (unless waived by the relevant Agent
with respect to a particular Terms Agreement) the Company
sells Notes to an Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to such
Agent forthwith a certificate in form satisfactory to such
Agent to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the
case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred
to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such
certificate.
(b) Subsequent Delivery of Legal Opinions. Each
time that 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 of the Notes or similar changes or
solely for the inclusion of additional financial
information), or (unless the Agents shall have suspended
<PAGE>
solicitation of purchases of Notes in their capacity as
agents pursuant to a request from the Company in accordance
with Section 2(a)) there is filed with the Commission any
document incorporated by reference into the Prospectus, or
(unless waived by the relevant Agent with respect to a
particular Terms Agreement) the Company sells Notes to an
Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to the Agents
and to counsel to the Agents an opinion, dated the date of
delivery of such opinion and in form satisfactory to the
Agents, of either the General Counsel or the Senior
Corporate Counsel to the Company covering the matters
referred to above in Section 5(a)(1) under the subheadings
(i), (v) (with respect to any applicable Terms Agreement),
(ix), (xi) (with respect to any applicable Terms Agreement)
and (xii) and in Section 5(a)(3), but modified in each
case, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time
of delivery of such opinion.
(c) Subsequent Delivery of Comfort Letters. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional
financial information or (unless the Agents shall have
suspended solicitation of purchases of Notes in their
capacity as agents pursuant to a request from the Company
in accordance with Section 2(a)) there is filed with the
Commission any document incorporated by reference into the
Prospectus which contains additional financial information
or (unless waived by the relevant Agent with respect to a
particular Terms Agreement) the Company sells Notes to an
Agent pursuant to a Terms Agreement, the Company shall
cause Price Waterhouse LLP forthwith to furnish the Agents
a letter, dated the date of filing of such amendment,
supplement or document with the Commission, or the date of
such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof
but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such
letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other
information derived from the accounting records of the
Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a
fiscal quarter, Price Waterhouse LLP may limit the scope of
such letter to the unaudited financial data included in
such amendment or supplement unless any other information
included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment
of the Agents and with the agreement of Price Waterhouse
LLP, such letter should cover such other information.
SECTION 7. Indemnification.
(a) Indemnification of the Agents. The Company
agrees to indemnify and hold harmless the Agents and each
person, if any, who controls the Agents within the meaning
of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement (or any amendment thereto), or
the omission or
<PAGE>
alleged omission therefrom of a material fact
required to be stated therein or necessary to make
the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (or
any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such
alleged untrue statement or omission, if such
settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel
chosen by the Agents), as incurred, reasonably
incurred in investigating, preparing or defending
against any litigation, or investigation or
proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished
to the Company by the Agents expressly for use in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or
made in reliance upon the Trustee's Statement of
Eligibility under the 1939 Act filed as an exhibit to the
Registration Statement.
(b) Indemnification of Company. The Agents agree,
severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers
who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section
15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by the Agents expressly for use in
the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give
prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of
this indemnity agreement. An
<PAGE>
indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of
such action with counsel chosen by it and reasonably
acceptable to the indemnified parties to such action,
unless such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses
available to them which are different from or in addition
to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all
indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution.
In order to provide for just and equitable contri-
bution in circumstances in which the indemnity agreement
provided for in Section 7 is for any reason held to be
unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and
the Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the
Company and the Agents, as incurred, in such proportions
that the Agents are responsible for that portion
represented by the percentage that the total commissions
and underwriting discounts received by the Agents to the
date of such liability bears to the total sales price
received by the Company from the sale of Notes to the date
of such liability, and the Company is responsible for the
balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
person, if any, who controls an Agent within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the
Company, each officer of the Company who signed the Regi-
stration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the
Company.
SECTION 9. Representations, Warranties and
Agreements to Survive Delivery.
All representations, warranties and agreements con-
tained in this Agreement or any Terms Agreement, or
contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made
by or on behalf of any of the Agents or any controlling
person of any Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the
Notes.
SECTION 10. Termination.
<PAGE>
(a) Termination of this Agreement. This Agreement
may be terminated for any reason, at any time by either the
Company or the Agents upon the giving of 30 days' written
notice of such termination to the other party hereto.
(b) Termination of a Terms Agreement. An Agent may
terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date
relating thereto (i) if there has been, since the date of
such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement
(as amended and supplemented to the date of the Terms
Agreement), any material adverse change in the condition,
financial or otherwise, or in the earnings, results of
operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business or, (ii) if
there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak
or escalation of hostilities or other national or
international calamity or crisis, in all cases the effect
of which shall be such as to make it, in the reasonable
judgment of an Agent, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if
trading in any securities of the Company shall have been
suspended by the Commission or a national securities
exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said
exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall
have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any
nationally recognized securities rating agency to any
senior debt securities of the Company or any subsidiary
thereof as of the date of the applicable Terms Agreement
shall have been lowered since that date or if any such
rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading, or
(v) if there shall have come to an Agent's attention any
facts that would cause an Agent to believe that the
Prospectus, at the time it was required to be delivered to
such Agent as principal, contained an untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not
misleading; provided that in such case the Company may
immediately authorize Additional Agents to solicit offers
for the purchase of Notes in accordance with the provisions
of Section 2(a) hereof notwithstanding the requirement to
give the Agents prior notice of such authorization.
(c) General. In the event of any such termination,
neither party will have any liability to the other party
hereto, except that (i) the Agents shall be entitled to any
commissions earned in accordance with the third paragraph
of Section 2(a) hereof, (ii) if at the time of termination
(a) an Agent shall own any Notes purchased pursuant to a
Terms Agreement with the intention of reselling them or (b)
an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 3 and 6
hereof shall remain in effect until such Notes are so re-
sold or delivered, as the case may be, and (iii) the
covenant set forth in Section 3(g) hereof, the provisions
of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the
provisions of Sections 9 and 13 hereof shall remain in
effect.
<PAGE>
SECTION 11. Notices.
All notices and 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 Agents shall be directed
to . Notices
to the Company shall be directed to it at Harnischfeger
Industries, Inc., 3600 S. Lake Dr., St. Francis, Wisconsin
53235, attention of Executive Vice President for Finance
and Administration.
SECTION 12. Parties.
This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the Agents (or in the
case of any Terms Agreement, the Agent which is a party
thereto) and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections
7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any
provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons
and officers and directors and their heirs and legal
representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement and any Terms Agreement and the rights
and obligations of the parties created hereby and thereby
shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made
and to be performed in such State.
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its
terms.
Very truly yours,
HARNISCHFEGER INDUSTRIES, INC.
By:
-----------------------------
Title:
<PAGE>
CONFIRMED AND ACCEPTED, AS OF
THE DATE FIRST ABOVE WRITTEN:
[AGENTS]
BY:
By:
- -------------------------
Name:
Title:
<PAGE>
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
-----------------------------
HARNISCHFEGER INDUSTRIES, INC.
I, , of
Harnischfeger Industries, Inc., a Delaware corporation (the
"Company"), pursuant to Section 5(b) of the Distribution
Agreement dated , 199 (the "Distribution
Agreement") between the Company and [Agents], hereby
certify that, to the best of my knowledge, after reasonable
investigation:
1. Since , 199 , there has been no
material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered
as one enterprise, or in the earnings, results of
operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as
contemplated or set forth in the Prospectus or the
Registration Statement (as defined in the Distribution
Agreement);
2. The representations and warranties of the
Company contained in Section 1 of the Distribution
Agreement are true and correct with the same force and
effect as though expressly made at and as of the date
hereof;
3. The Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to the Distribution
Agreement and the Terms Agreement at or prior to the date
hereof; and
4. No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my
name and affixed the seal of the Company.
Dated: , 199
--------------- -
-----------------------------
[Title]
<PAGE>
<PAGE>
EXHIBIT A
Maturity Ranges Commission
--------------- ----------
From 9 months but less than 1 year %
----
From 1 year but less than 18 months
----
From 18 months but less than 2 years
----
From 2 years but less than 3 years
----
From 3 years but less than 4 years
----
From 4 years but less than 5 years
----
From 5 years but less than 6 years
----
From 6 years but less than 7 years
----
From 7 years but less than 8 years
----
From 8 years but less than 9 years
----
From 9 years but less than 10 years
----
From 10 years but less than 15 years
----
From 15 years but less than 20 years
----
From 20 years to 30 years
----
<PAGE>
EXHIBIT B
$
---------------
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
TERMS AGREEMENT
[DATE]
Harnischfeger Industries, Inc.
3600 S. Lake Dr.
St. Francis, Wisconsin 53235
Re: Distribution Agreement dated , 199
---------- -
Ladies and Gentlemen:
Section 1. Agreement to Purchase; Terms of the Notes.
Subject in all respects to the terms and conditions of
the Distribution Agreement (the "Agreement"), dated
, 199 among [Agents] and you (the "Company"), the
undersigned (collectively, the "Underwriters") agree to be
bound by and to perform all provisions of this Terms
Agreement and further agree to purchase, severally and not
jointly, the following securities (the "Debentures") of the
Company having the following terms and in the amounts
indicated opposite their respective names under the caption
"Underwriting Commitment":
The terms of such securities shall be as follows:
Title: % Debentures due ,
___ -------------- ----
Specified Currency: United States Dollars
Aggregate Principal Amount: $
------------
Interest Rate: %
-------
Date of Maturity: , 19
----------------- --
Interest Payment Dates: and
-----------
----------- of each year,
commencing on , 199
------------------- -
<PAGE>
Regular Record Dates: and
-----------
----------- of each year
Redemption Provisions:
Sinking Fund Provisions:
Price to Public: % of the principal amount of
the purchased Debentures, plus accrued interest
from , 199 to the date of delivery
---------- -
Underwriting Discount: %
-----
Settlement Date: , 199
--------------- -
Place for Delivery of Documents, Debentures and Payment Therefor:
Documents: [Agents' Counsel]
Debentures:
Payment: [Borrower's Bank]
Method of Payment:FED Funds in immediately available funds
Underwriting Commitment:
Underwriter Amount
$
------------
Total $
Exceptions, if any, to Section 3(k) of the Agreement:
<PAGE>
Section 2. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation
to purchase the Debentures which it has agreed to purchase
hereunder, we may in our discretion arrange for ourselves
or another party or other parties to purchase such
Debentures on the terms contained herein. If within
thirty-six hours after such default by any Underwriter we
do not arrange for the purchase of such Debentures, then
the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or
other parties reasonably satisfactory to us to purchase
such Debentures on such terms. In the event that, within
the respective prescribed period, we notify the Company
that we have so arranged for the purchase of such
Debentures, or the Company notifies us that it has so
arranged for the purchase of such Debentures, we or the
Company shall have the right to postpone the Settlement
Date for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement
or the Prospectus which in the mutual opinion of the
Company and the Underwriters may thereby be made necessary.
The term "Underwriter" as used in this Terms Agreement
shall include any person substituted under this provision
with like effect as if such person had originally been a
party to this Terms Agreement with respect to such
Debentures.
(b) If, after giving effect to any arrangements for the
purchase of the Debentures of a defaulting Underwriter or
Underwriters by us and the Company as provided in section
2(a) hereof, the aggregate principal amount of such
Debentures which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all of the
Debentures, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the
principal amount of Debentures which such Underwriter
agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Debentures which
such Underwriter agreed to purchase hereunder) of the
Debentures of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Debentures of a defaulting Underwriter or
Underwriters by us and the Company as provided in Section
2(a) hereof, the aggregate principal amount of Debentures
which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Debentures, or if the
Company shall not exercise the right described in Section
2(b) hereof to require non-defaulting Underwriters to
purchase Debentures of a defaulting Underwriter or
Underwriters, then this Terms Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the
indemnity and contribution agreements in Sections 7 and 8
of the Agreement, and Sections 4, 9 and 13 of the
Agreement, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
Section 3. Additional Agreements.
<PAGE>
(a) All references to Agents and Notes in the
Agreement shall refer to the Underwriters and the
Debentures, respectively, hereunder. The Company
understands and agrees that the Underwriters are "agents
purchasing as principals" within the meaning of the
Agreement and intend to sell the Debentures in a public
offering as described in the Prospectus Supplement of the
Company dated , 199 . The Company further
understands and agrees that the Underwriters shall have no
obligations to solicit offers to purchase any securities
pursuant to Section 2(a) of the Agreement or otherwise,
other than pursuant to this Terms Agreement.
(b) The references to the Company's Annual Report on
Form 10-K for the year ended October 31, 1995 shall be
changed to references to the Company's Annual Report on
Form 10-K for the year ended October 31, 199 in Sections
1(a)(ii) and 5(a)(1)(xiii).
(c) At the Settlement Date under the Terms Agreement,
and as additional conditions to the obligations of the
Underwriters to take delivery of and pay for the
Debentures, the Underwriters shall receive:
(i) the certificate referred to in Section 5(b) ;
and
(ii) the legal opinions called for by Sections
5(a)(1) and (2) of the Agreement; it being understood
that in rendering their opinion, [Agents' Counsel] may
rely on the opinion of [Company's Counsel] as to matters
of Wisconsin law.
(d) The accountants' letter referred to in Section 5(c)
of the Agreement shall be given in the form attached hereto
as Schedule I at the time of execution of this Terms
Agreement, and a "bring down" comfort letter satisfactory
to the Underwriters shall be delivered at, and as a
condition to, the closing on the Settlement Date.
(e) The references in the Agreement to "Administrative
Procedures" or "Procedures" shall have no effect on the
obligations of the Underwriters with respect to the offer
and sale of the Debentures.
(f) Anything in the Agreement to the contrary
notwithstanding, the provisions of Section 6(a), (b) or (c)
of the Agreement shall not apply to the amending or
supplementing of the Registration Statement or Prospectus
by the filing of documents incorporated by reference
therein, but the Company shall not amend or supplement,
during the time that the delivery of a Prospectus is
required, the Registration Statement or Prospectus, by the
filing of documents incorporated by reference therein or
otherwise, without the consent of the Underwriters (which
shall not be unreasonably withheld).
(g) Anything in Section 4 of the Agreement to the
contrary notwithstanding, the Underwriters shall pay the
fees and expenses of counsel to the Underwriters.
(h) The parties hereby agree that no indemnifying party
(as such term is used in Section 7 of the Agreement) shall,
without the prior written consent of the indemnified party
(as such term is used in Section 7 of the Agreement),
effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and
<PAGE>
indemnity could have been sought under the Agreement by
such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability or claims that are the subject of such
proceeding.
Section 4. Counterparts. This Terms Agreement may be
executed in one or more counterparts, all of which shall be
considered one and the same agreement and each of which
shall be deemed an original
[UNDERWRITERS]
BY:
By:
-------------------------
Name:
Title:
Accepted:
HARNISCHFEGER INDUSTRIES, INC.
By:
---------------------------
Name:
Title:
EXHIBIT 5.1
February , 1998
--
Harnischfeger Industries, Inc.
3600 S. Lake Dr.
St. Francis, Wisconsin 53235
Ladies and Gentlemen:
I am Associate General Counsel for Harnischfeger
Industries, Inc., a Delaware corporation (the "Company"),
and have acted as the Company's counsel in connection with
the proposed registration by the Company of up to $200
million aggregate principal amount of debt securities
("Debt Securities"), pursuant to a Registration Statement
on Form S-3 filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended
(the Registration Statement, as the same may be amended or
supplemented, is hereinafter referred to as the
"Registration Statement").
In connection therewith, I have examined and relied
upon the original, or copies certified to my satisfaction,
of (i) the Certificate of Incorporation and By-laws, as
amended, of the Company; (ii) minutes and records of the
corporate proceedings of the Company with respect to the
issuance of the Debt Securities; (iii) the Registration
Statement and exhibits thereto; (iv) the form of
distribution agreement relating to the Debt Securities (the
"Distribution Agreement") to be entered into between the
Company and one or more agents or underwriters; (v) the
indenture dated as of March 1, 1992, as supplemented by the
First Supplemental Indenture dated as of June 12, 1992,
between the Company and First Trust National Association
(f.k.a. First Trust of Illinois, National Association)
(successor to Continental Bank, National Association), as
Trustee (the "Trustee"), relating to the Debt Securities
(collectively, the "Indenture"), and (vi) such other
documents and instruments as I have deemed necessary for
the expression of the opinions contained herein.
Based upon the foregoing, I am of opinion that:
When the Registration Statement shall have become
effective, the Board of Directors of the Company, or the
officers so authorized by the Board, has designated the
type, terms and amount of Debt Securities to be issued and
take all necessary further action to authorize the issuance
and sale thereof as contemplated by the Registration
Statement and the Indenture, and such Debt Securities have
been duly executed on behalf of the Company, authenticated
by the Trustee under the Indenture and issued and paid for
in accordance with the terms of the Distribution Agreement
(and any applicable Terms Agreement), the Debt Securities
will constitute valid and binding obligations of the
Company enforceable in accordance with their terms and will
be entitled to the benefits of the Indenture, subject to
the qualification that the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws
affecting enforcement of creditors' rights
<PAGE>
February , 1998
--
Page two
generally, and Harnischfeger Industries, Inc. enforcement
thereof may be limited by general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
I do not find it necessary for the purposes of this
opinion, and accordingly I do not purport to cover herein,
the application of securities or "Blue Sky" laws of the
various states to the sale of the Debt Securities.
I am a member of the bar of the State of Wisconsin
and the opinions expressed herein are limited to the laws
of the State of Wisconsin, the federal laws of the United
States and the General Corporation Law of the State of
Delaware.
I hereby consent to the filing of this opinion with
the Securities and Exchange Commission as an exhibit to the
Registration Statement and to the reference to this office
under the caption "Legal Matters" in the Prospectus forming
a part of such Registration Statement.
Very truly yours,
Eric B. Fonstad
Associate General Counsel and
Assistant Secretary
EXHIBIT 12.1
Harnischfeger Industries, Inc.
Computation of Ratio of Earnings to Fixed Charges
(In thousands, except for ratios)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Year Ended October 31,
----------------------------------------------------
1997 1996 1995 1994 1993
Income (loss) from continuing
operations before provision
(credit) for income taxes
and minority interest $246,729 $181,761 $152,850 $52,796 ($48,746)
Add:
Interest Expense 76,001 68,763 51,748 54,504 56,169
Rental Expense 9,102 9,296 6,941 6,776 6,674
Undistributed (earnings) loss
of equity investees 397 232 20 738 1,309
-------- -------- -------- ------- ------
Earnings adjusted for
fixed charges $332,229 $260,052 $211,559 $114,814 $15,406
======== ======== ======== ======== =======
Fixed Charges
Interest Expense 76,001 68,763 51,748 54,504 56,169
Rental Expense 9,102 9,296 6,941 6,776 6,674
-------- -------- -------- -------- -------
Total fixed charges $ 85,103 $ 78,059 $ 58,689 $ 61,280 $62,843
======== ======== ======== ======== =======
Ratio of earnings to
fixed charges (1) 3.90 3.33 3.60 1.87 - (2)
======== ======== ======== ======== ========
Notes
- --------------------------------------------
(1) The ratio of earnings to fixed charges is defined as income from continuing operations
before provision (credit) for income taxes and minority interest plus interest expense
(including amortization of debt issuance expense), the portion of rental expense which
represents interest (deemed to be one-third of rentals ) and dividends received on
less-than-fifty-percent-owned companies, reduced (increased) by equity income (loss) recorded
on less-than-fifty-percent-owned companies, divided by fixed charges. Fixed charges include
interest expense (including amortization of debt issuance expense) and the portion of rental
expense which represents interest.
(2) Earnings did not cover fixed charges by $47,437 in 1993.
</TABLE>
EXHIBIT 23.1
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 November 18, 1997, which
appears in the 1997 Annual Report to Shareholders of
Harnischfeger Industries, Inc. ("Harnischfeger"), which is
incorporated by reference in Harnischfeger's Annual Report
on Form 10-K for the year ended October 31, 1997. We also
consent to the incorporation by reference of our report
on the Financial Statement Schedule, which appears in such
Annual Report on Form 10-K. We also consent to the references
to us under the headings "Experts" and "Selected Finanical Data"
in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Selected
Financial Data".
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
February 17, 1998
EXHIBIT 25.1
=========================================================
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)
--------------
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
36-4046888
(I.R.S. Employer
Identification Number)
111 E. Wacker Drive, Suite 3000
Chicago, Illinois 60601
(Address of principal executive offices) (Zip Code)
Martha L. Sanders
111 East Wacker Drive, Suite 3000
Chicago, Illinois
Telephone (312) 228-9452
(Name, address, and telephone number of agent for service)
HARNISCHFEGER INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 39-1566457
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3600 S. Lake Dr.
St. Francis, Wisconsin 53235
(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 the Currency, Washington, D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee,
describe each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each
class of voting securities of the trustee:
As of February 17, 1998
Col. A Col. B
Title of class Amount outstanding
-------------- ------------------
Not applicable by virtue of response to Item
13.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another
indenture under which any other securities, or
certificates of interest or participation in
any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under
each such other indenture.
Not applicable by virtue of response to
Item 13.
(b) A brief statement of the facts relied
upon as a basis for the claim that no
conflicting interest within the meaning
of Section 310(b)(1) of the Act arises as
a result of the trusteeship under any
such other indenture, including a
statement as to how the indenture
securities will rank as compared with the
securities issued under such other
indenture.
Not applicable by virtue of response to
Item 13.
Item 5. Interlocking Directorates and Similar
Relationships with the Obligor or Underwriters.
If the trustee or any of the directors or
executive officers of the trustee is a
director, officer, partner, employee,
appointee, or representative of the obligor or
of any underwriter for the obligor, identify
each such person having any such connection and
state the nature of each such connection.
Not applicable by virtue of response to Item
13.
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the
Obligor or its Officials.
Furnish the following information as to the
voting securities of the trustee owned
beneficially by the obligor and each director,
partner, and executive officer of the obligor:
As of February 17, 1998
Col. A Col. B Col. C Col. D
Percentage
of voting
securities
Amount represented
owned by amount
Name of Title of benefi- given
Owner Class cially in Col. C
------- -------- ------- ----------
Not applicable by virtue of response to Item
13.
Item 7. Voting Securities of the Trustee Owned by
Underwriters or their Officials.
Furnish the following information as to the
voting securities of the trustee owned
beneficially by each underwriter for the
obligor and each director, partner, and
executive officer of each such underwriter.
As of February 17, 1998
Col. A Col. B Col. C Col. D
Percentage
of voting
securities
Amount represented
owned by amount
Name of Title of benefi- given
Owner Class cially in Col. C
------- -------- ------- ----------
Not applicable by virtue of response to Item
13.
Item 8. Securities of the Obligor Owned or Held by the
Trustee.
Furnish the following information as to
securities of the obligor owned beneficially or
held as collateral security for obligations in
default by the trustee:
As of February 17, 1998
Col. A Col. B Col. C Col. D
Amount
Owned
benefi-
cially
Whether or held
the secu- as col Percent
rities lateral of class
are vot- security represented
ing or for obli- by amount
Title of nonvoting gations in given in
Class securities default Col C
-------- --------- ---------- -----------
Not applicable by virtue of response to Item
13.
<PAGE>
Item 9. Securities of Underwriters Owned or Held by the
Trustee.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of an underwriter for the
obligor, furnish the following information as
to each class of securities of such underwriter
any of which are so owned or held by the
trustee:
As of February 17, 1998
Col. A Col. B Col. C Col. D
Amount Owned
beneficially
or held as
collateral Percent
security of class
Name of for obliga- represented
Issuer and tions in by amount
Title of Amount default given in
Class outstanding by trustee Col C
-------- ---------- ---------- -----------
Not applicable by virtue of response to Item 13.
Item 10. Ownership or Holdings by the Trustee of Voting
Securities of Certain Affiliates or Security
Holders of the Obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default
voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or
more of the voting securities of the obligor or
(2) is an affiliate, other than a subsidiary,
of the obligor, furnish the following
information as to the voting securities of such
person:
As of February 17, 1998
Col. A Col. B Col. C Col. D
Amount Owned
beneficially
or held as
collateral Percent
security of class
Name of for obliga- represented
Issuer and tions in by amount
Title of Amount default given in
Class outstanding by trustee Col C
-------- ---------- ---------- -----------
Not applicable by virtue of response to Item 13.
Item 11. Ownership or Holdings by the Trustee of any
Securities of a Person Owning 50 Percent or
More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as
collateral security for obligations in default
any securities of a person who, to the
knowledge of the trustee, owns 50 percent or
more of the voting securities of the obligor,
furnish the following information as to each
class of securities of such person any of which
are so owned or held by the trustee:
<PAGE>
As of February 17, 1998
Col. A Col. B Col. C Col. D
Amount Owned
beneficially
or held as
collateral Percent
security of class
Name of for obliga- represented
Issuer and tions in by amount
Title of Amount default given in
Class outstanding by trustee Col C
-------- ---------- ---------- -----------
Not applicable by virtue of response to Item 13.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the
obligor is indebted to the trustee, furnish the
following information:
As of February 17, 1998
Col. A Col. B Col. C
Nature of Amount
Indebtedness Outstanding Due Date
------------ ----------- --------
Not applicable by virtue of response to Item 13.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a
default with respect to the securities
under this indenture. Explain the nature
of any such default.
There is not nor has there been a default with
respect to the securities under this indenture.
(b) If the trustee is a trustee under another
indenture under which any other
securities, or certificates of interest
or participation in any other securities,
of the obligor are outstanding, or is
trustee for more than one outstanding
series of securities under the indenture,
state whether there has been a default
under any such indenture or series,
identify the indenture or series
affected, and explain the nature of any
such default.
The trustee is not a trustee under any other
indenture under which any other securities or
certificates of interest or participation in
any other securities of the obligor are
outstanding. There is not nor has there been a
default with respect to securities issued under
this indenture.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the
trustee, describe each such affiliation.
Not applicable by virtue of response to Item
13.
Item 15. Foreign Trustee.
<PAGE>
Identify the order or rule pursuant to which
the foreign trustee is authorized to act as
sole trustee under indentures qualified or to
be qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this
statement of eligibility.
1. A copy of the Articles of Association of
First Trust National Association as now
in effect, incorporated herein by
reference to Exhibit 1 to T-1;
Registration No. 333-19025.
2. A copy of the certificate of authority of
the trustee to commence business,
incorporated herein by reference to
Exhibit 2 to T-1; Registration No. 33-64175.
3. A copy of the certificate of authority of
the trustee to exercise corporate trust
powers, incorporated herein by reference
to Exhibit 3 to T-1; Registration No. 33-64175.
4. A copy of the existing bylaws of First
Trust National Association as now in
effect, incorporated herein by reference
to Exhibit 4 to T-1; Registration No.
333-29571.
5. Not applicable by virtue of response to
Item 13.
6. The consent of the trustee required by
Section 321(b) of the Trust Indenture Act
of 1939, incorporated herein by reference
to Exhibit 6 to T-1; Registration No. 33-64175.
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, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939, the trustee, First Trust National Association,
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, as of the 17th day of
February, 1998.
FIRST TRUST NATIONAL ASSOCIATION
By: /s/ Martha L. Sanders
--------------------------------
Martha L. Sanders
Vice President and Assistant Secretary
<PAGE>
EXHIBIT 7
(Form T-1)
FIRST TRUST NATIONAL ASSOCIATION
400 North Michigan Avenue
Chicago, IL 60611
CONSOLIDATED REPORT OF CONDITIONS FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS
FOR SEPTEMBER 30, 1997
Schedule RC - Balance Sheet
ASSETS
1. Cash and Balances Due From Depository Institutions:
a. Noninterest-bearing balances
and currency and coin(1) $ 53,981,000
b. Interest-bearing balances (2) 0
2. Securities:
a. Held-to-maturity securities 0
b. Available-for-Sale Securities 3,219,000
3. Federal funds sold and securities
purchased under agreements to resell 0
4. Loans and Lease financing receivables: 0
a. Loans and Leases, net of unearned income
b. LESS: Allowance for Loan and Lease Losses 0
c. LESS: Allocated transfer risk reserve 0
d. Loans and Leases, net of unearned income,
allowance, and reserve 0
5. Trading assets 0
6. Premises and Fixed Assets 112,000
7. Other real estate owned 0
8. Investments in unconsolidated
subsidiaries and associated companies 0
9. Customers' Liability to this bank
on acceptances outstanding 0
10. Intangible Assets 49,390,000
11. Other Assets 2,277,000
12. Total Assets $108,979,000
LIABILITIES
13. Deposits:
a. In domestic offices 0
(1) Noninterest-bearing 0
(2) Interest-bearing 0
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and
securities sold under agreements to
repurchase 0
15. a. Demand notes issued to the U.S. Treasury 0
b. Trading Liabilities 0
16. Other borrowed money (includes mortgage
indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one
year or less 0
b. With a remaining maturity of more
than one year through three years 0
c. With a remaining maturity of more
than three years 0
17. Not applicable
18. Bank's Liability on acceptances executed
and outstanding 0
19. Subordinated notes and debentures 0
20. Other Liabilities 1,791,000
21. Total Liabilities $1,791,000
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus 0
24. Common Stock 1,000,000
25. Surplus (exclude all surplus related
to preferred stock) 106,712,000
26. a. Undivided Profits and Capital
Reserves ( 524,000)
b. Net unrealized holding gains
(losses) on available-for-sale
securities 0
27. Cumulative foreign currency
translation adjustments 0
28. Total Equity Capital 107,188,000
29. Total Liabilities and
Equity Capital $108,979,000
Schedule RC-A - Cash and Balances Due From Depository Institutions
CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
1. Cash items in process of collection, unposted debits,
and currency and coin:
a. Cash items in process of
collection and unposted debits 0
b. Currency and coin 0
2. Balances Due from Depository Institutions in the U.S.:
a. U.S. branches and agencies
of foreign banks 0
b. Other commercial banks in the
U.S. and other depository
institutions in the U.S. 53,981,000
3. Balances due from banks in foreign
countries and foreign central banks:
a. Foreign branches of U.S. banks 0
b. Other banks in foreign countries
and foreign central banks 0
4. Balances due from Federal Reserve Banks 0
5. Total $53,981,000
Memorandum
1. Noninterest-bearing balances due
from commercial banks in the U.S $53,981,000
