SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 30, 2001
Delaware 1-655 42-0401785
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(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
403 West Fourth Street North, Newton, Iowa 50208
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: 641/792-7000
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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The exhibits accompanying this report are listed in the accompanying Exhibit Index.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
MAYTAG CORPORATION
By: /s/ Steven H. Wood
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Steven H. Wood
Executive Vice President and
Chief Financial Officer
Date: October 30, 2001
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EXHIBIT INDEX
The following exhibits are filed herewith and are exhibits to the Registrant's Registration Statement on Form S-3, Registration No. 333-62980, as noted below:
Registration No. 333-62980
Exhibit No. Exhibit No. Exhibit
----------- ----------- -------
1.1 1.1 Distribution Agreement dated as of
October 30, 2001 among the
Registrant and the Agents named
therein, relating to the
Registrant's Medium-Term Notes,
Series E
4.1 4.6 Ninth Supplemental Indenture dated
as of October 30, 2001 between the
Registrant and Bank One, National
Association
4.2 4.7 Form of Fixed Rate Note relating to
the Registrant's Medium-Term Notes,
Series E
4.3 4.8 Form of Floating Rate Note relating
to the Registrant's Medium-Term
Notes, Series E
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Exhibit 1.1
U.S. $500,000,000
MAYTAG CORPORATION
MEDIUM-TERM NOTES, SERIES E
DUE FROM NINE MONTHS TO 30 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
October 30, 2001
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Banc One Capital Markets, Inc.
One Bank One Plaza
Chicago, Illinois 60670
Deutsche Banc Alex. Brown Inc.
31 West 52nd Street
New York, New York 10019
Lehman Brothers Inc.
101 Hudson Street
Jersey City, New Jersey 07302
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Four World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Maytag Corporation, a Delaware corporation (the "Company"), confirms its agreement with each of you (individually, an "Agent" and collectively, the "Agents") with respect to the issuance and sale by the Company of up to an aggregate initial offering price of $500,000,000 of its Medium-Term Notes, Series E (the "Notes"). The Notes are to be issued from time to time pursuant to an indenture, dated as of June 15, 1987, as supplemented (as it may be supplemented or amended from time to time, the "Indenture"), between the Company and Bank One, National Association, formerly known as The First National Bank of Chicago, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a), as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the
Procedures (as defined in Section 2(f)). This Agreement shall only apply to sales of the Notes and not to sales of any other securities or evidences of indebtedness of the Company and only on the specific terms set forth herein.
Subject to the terms and conditions of this Agreement and to the
reservation by the Company of the right to sell Notes directly on its own
behalf, and to designate and select additional agents in accordance with Section
2(a), the Company hereby (i) appoints each of the Agents as the agent of the
Company during each Marketing Period (as defined in Section l(b)) for the
purpose of soliciting and receiving offers to purchase Notes from the Company
and (ii) agrees that whenever the Company determines to sell Notes directly to
an Agent as principal it will enter into a separate agreement (each, a "Purchase
Agreement"). Each such Purchase Agreement, whether oral (and confirmed in
writing in accordance with Section 2(e)) or in writing, shall be with respect to
such information (as applicable) as specified in Exhibit C, relating to such
sale in accordance with Section 2(e).
1. Representations and Warranties of the Company. The Company represents and warrants to each Agent as of the date of this Agreement, as of the Closing Date (defined in Section 2(g)) and as of the times referred to in Sections 6(a) and 6(b) (the Closing Date and each such time being hereinafter sometimes referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (File No. 333-62980) in respect of debt securities and warrants to purchase debt securities of the Company, including the Notes, has been filed with the Securities and Exchange Commission (the "Commission"); such registration statement and any post-effective amendments thereto, have been declared effective by the Commission. Copies of the registration statement and any amendments thereto have been delivered by the Company to the Agents. As used in this Agreement, "Effective Time" means the respective dates and the times as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; and "Effective Date" means the respective applicable dates of the Effective Time. As provided in Section 3(a), a prospectus supplement relating to the Notes, the terms of the offering thereof and the other matters set forth therein has been prepared and filed pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"). In addition, a preliminary prospectus supplement relating to the Notes, the terms of the offering thereof, and the other matters set forth therein also may be prepared and filed pursuant to Rule 424 under the Securities Act. Such prospectus supplement, in the form filed on or after the date of this Agreement pursuant to Rule 424, is referred to in this Agreement as the "Prospectus Supplement", and any such preliminary prospectus supplement in the form filed after the date of this Agreement pursuant to Rule 424 is referred to as the "Preliminary Prospectus Supplement." Any prospectus accompanied by a Preliminary Prospectus Supplement is referred to in this Agreement, collectively with such Preliminary Prospectus Supplement, as a "Preliminary Prospectus." The registration statement referred to in this Section 1(a), as amended at the time of the applicable Representation Date, including the exhibits thereto (but excluding Form T-1) and the documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act (the "Incorporated Documents"), is called the "Registration Statement"; and the basic prospectus included therein relating to all offerings of securities under the Registration Statement, as supplemented by the Prospectus Supplement or a Pricing Supplement,
is called the "Prospectus", except that, if such basic prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement, in either case including the Incorporated Documents. Any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual or interim report of the Company or other documents filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement. Notwithstanding the foregoing, any prospectus supplement prepared or filed with respect to an offering pursuant to the Registration Statement of securities other than the Notes shall not be deemed to have supplemented the Prospectus. The Commission has not issued any order suspending the effectiveness of the Registration Statement, and no stop order has been initiated or threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder (the "Rules and Regulations"), and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and on each Representation Date and at all times during each period during which, in the opinion of counsel for the Agents, a prospectus relating to the Notes is required to be delivered under the Securities Act (each, a "Marketing Period") and at the time of filing of the Prospectus pursuant to Rule 424(b), the Prospectus will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations, and will not include 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; the Incorporated Documents, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and did not include 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; and any further documents so filed and incorporated by reference in the Prospectus, when such documents become effective or are filed with Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not include 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; and on each Representation Date, the Indenture conformed and will conform in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the applicable rules and regulations thereunder; provided that no representation or warranty is made as to (i) information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Agent specifically for inclusion therein or (ii) that part of the Registration Statement which shall constitute the Form T-1 under the Trust Indenture Act.
(c) 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 power and authority
(corporate and other) to own its properties and conduct its business as described in the Prospectus.
(d) The Notes have been duly authorized by the Company, and, when the terms of the Notes and of their issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and the Notes have been authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, the Notes will be duly and validly issued and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms; the Indenture has been duly authorized and qualified under the Trust Indenture Act and the Indenture constitutes a valid and legally binding instrument, enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); the Indenture conforms and the Notes will conform to the descriptions thereof in the Prospectus as amended or supplemented to relate to such issuance of Notes.
(e) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture, this Agreement and any Purchase Agreement, and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its properties.
(f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the solicitation of offers to purchase Notes, the issue and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or any Purchase Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act or the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase Notes from the Company and with purchases of Notes by an Agent as principal, as the case may be, in each case in the manner contemplated hereby.
(g) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which would reasonably be expected to have a material adverse effect on the business, properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus; and, since such date, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries that would result in a material adverse change in the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus.
(h) Except as described in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which could reasonably be expected to have a material adverse effect on the business, properties, financial position stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and to the knowledge of the Company, no such proceedings are threatened by governmental authorities or by others.
(i) Immediately after any sale of Notes by the Company hereunder or under any Purchase Agreement, the aggregate amount of Notes which shall have been issued and sold by the Company hereunder or under any Purchase Agreement and of any debt securities and warrants of the Company (other than such Notes) that shall have been issued and sold pursuant to the Registration Statement will not exceed the amount of debt securities and warrants registered under the Registration Statement.
(j) As of the date hereof, the Company is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with Cuba.
(a) Appointment. Subject to the terms and conditions of this Agreement, the Company hereby appoints each of the Agents as one of the agents of the Company for the purpose of soliciting or receiving offers to purchase the Notes from the Company by others. On the basis of the representations and warranties in this Agreement, but subject to the terms and conditions of this Agreement, each Agent agrees, as one of the agents of the Company, to use its reasonable efforts to solicit offers to purchase the Notes upon the terms and conditions set forth in the Prospectus. In connection therewith, each Agent will use the Prospectus (as amended or supplemented from time to time) in the form most recently furnished to such Agent by the Company, and will solicit offers to purchase the Notes in accordance with the Securities Act, the Rules and Regulations and the applicable securities laws or regulations of any other applicable jurisdiction in which such Agent solicits offers to purchase any Note.
The Company may, from time to time, accept offers to purchase Notes otherwise than through one of the Agents; provided, however, that so long as this Agreement shall be in effect the Company shall not solicit offers to purchase through any agents other than the Agents. It is understood that if from time to time the Company is approached by a prospective agent offering a specific purchase of Notes, the Company may engage such agent with respect to such specific purchase provided that (i) such agent is engaged on terms substantially similar (including the same commission schedule) to the applicable terms of this Agreement and (ii) the Agents are
given notice of such purchase before it is consummated. The Company expressly reserves the right to sell Notes directly to investors, provided that such sales are made in compliance with all applicable laws, in which case the Agents shall not receive any commission with respect to such sale. Each Agent also may purchase Notes from the Company as principal for purposes of resale, as more fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its sole discretion, to suspend solicitation of offers to purchase the Notes commencing at any time for any period of time or indefinitely. Upon receipt of at least one business day's prior written notice from the Company, the Agents shall 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. For the purpose of this Agreement, "business day" shall mean any day which is not a Saturday or Sunday and which is not a day on which The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Sections 3(a) and 3(j), each Agent shall suspend its solicitation of offers to purchase Notes until such time as the Company shall have furnished such Agent with an amendment or supplement to the Registration Statement or the Prospectus, as the case may be, contemplated by Sections 3(a) and 3(j) and shall have advised such Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any Notes sold by the Company as a result of a solicitation made by or offer to purchase received by an Agent, the Company agrees to pay such Agent a commission, in accordance with the schedule set forth in Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit offers to purchase the Notes only in such denominations as are specified in the Prospectus at a purchase price as shall be specified by the Company. Each Agent shall communicate to the Company promptly, orally or in writing, each offer to purchase Notes received by it as an Agent; provided, however, that each Agent shall have the right, in its discretion reasonably exercised without advising the Company, to reject any offer to purchase the Notes received by it, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. The Company shall have the sole right to accept offers to purchase the Notes and may reject any such offer in whole or in part.
No Note which the Company has agreed to sell pursuant to this Agreement shall be deemed to have been purchased and paid for, or sold by the Company, until such Note shall have been delivered to the purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal, shall be made in accordance with the terms of this Agreement and a Purchase Agreement whether oral (and confirmed in writing by such Agent and the Company which may be by facsimile transmission) or in writing, which will provide for the sale of such Notes to, and the purchase thereof by, such Agent. A Purchase Agreement also may specify certain provisions relating to the reoffering of such Notes by such Agent. The commitment of any Agent to purchase Notes from the Company as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company contained in this Agreement and shall be subject to the terms and conditions of this Agreement. Each Purchase Agreement shall specify the principal amount and terms of the Notes to be purchased by an Agent, the time and date (each such time and date being referred to herein as a "Time of Delivery") and place of delivery of and payment for such Notes and such other information (as applicable) as is set forth in Exhibit C. The Company agrees that if any Agent purchases Notes as principal such Agent shall receive such compensation, in the form of a discount or otherwise, as shall be indicated in the applicable Purchase Agreement or, if no compensation is indicated therein, a commission in accordance with Exhibit A. Any Agent may utilize a selling or dealer group in connection with the resale of such Notes. In addition, the Agents may offer the Notes they have purchased as principal to other dealers. Any Agent may sell Notes to any dealer at a discount. Such Purchase Agreement also shall specify any requirements for delivery of opinions of counsel, accountants' letters and officers' certificates pursuant to Section 5.
(f) Administrative Procedures. Administrative procedures respecting the sale of Notes (the "Procedures") are set forth in Exhibit B and may be amended in writing from time to time by the Agents and the Company. Each Agent and the Company agree to perform the respective duties and obligations specifically provided to be performed by each of them in this Agreement and in the Procedures. The Procedures shall apply to all transactions contemplated hereunder other than sales of Notes to any Agent as principal pursuant to a Purchase Agreement. The Company will furnish to the Trustee a copy of the Procedures as from time to time in effect.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 shall be delivered at the offices of Sidley Austin Brown & Wood LLP,
Bank One Plaza, 10 South Dearborn Street, Chicago, Illinois, not later than
10:00 A.M., Chicago time, on the date of this Agreement or at such later time as
may be mutually agreed upon by the Company and the Agents, which in no event
shall be later than the time at which the Agents commence solicitation of offers
to purchase Notes hereunder (the "Closing Date").
(a) To prepare the Prospectus in a form approved by the Agents and to file such Prospectus, including the Prospectus Supplement, pursuant to Rule 424(b) within the time period prescribed by the Rules and Regulations; to notify the Agents, promptly after it receives notice, of the time when the Registration Statement or any amendment thereto becomes effective or promptly after the filing of any supplement or amendment to the Prospectus (other than any Incorporated Document or any amendment or supplement relating to an offering of securities other than the Notes or a Pricing Supplement) and to furnish the Agents with copies thereof; to notify the Agents, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information, to notify the Agents promptly of any downgrading in the rating accorded the Notes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) of the Rules and Regulations, or any public announcement that any such organization has under surveillance or review, with possible negative implications, its rating of the Notes or any of the Company's debt securities promptly after the Company learns of such downgrading, proposal to downgrade or public announcement; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to each of the Agents and to counsel for the Agents a copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission.
(c) To furnish promptly to each of the Agents copies of the Registration Statement, any Preliminary Prospectus, the Prospectus and all amendments and supplements to such documents (including the Incorporated Documents), in each case as soon as available and in such quantities as are reasonably requested.
(d) To file promptly with the Commission during any Marketing Period any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may be required by the Securities Act, in the reasonable judgment of the Company or the Agents, or requested by the Commission.
(e) Prior to filing with the Commission during any Marketing Period any
(i) amendment to the Registration Statement or supplement to the Prospectus or
(ii) any Prospectus pursuant to Rule 424 of the Rules and Regulations (other
than any Incorporated Document or any amendment or supplement relating to an
offering of securities other than the Notes) to furnish a copy thereof to the
Agents for their review a reasonable time prior to filing and not file any such
amendment or supplement to which any Agent reasonably objects. Promptly after
filing with the Commission any Incorporated Document or any amendment to any
Incorporated Document, to furnish a copy thereof to the Agents and counsel for
the Agents.
(f) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after (i) the effective date of the Registration Statement, (ii) the effective date of each post-effective amendment to the Registration Statement, and (iii) the date of each filing by the Company with the Commission of an Annual Report on Form 10-K that is incorporated by reference in the Registration Statement, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(g) So long as any Notes are outstanding, to furnish to such Agent copies of all reports or other communications (financial or other) furnished to stockholders and deliver to such Agent as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission).
(h) Promptly from time to time, to take such action as the Agents reasonably may request to qualify the Notes for offering and sale under the securities laws of such jurisdictions as the Agents may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(i) Between the date of a Purchase Agreement and the date of delivery of the Notes with respect thereto, not to offer for sale, sell or cause to be offered for sale or sold, without the prior written consent of each Agent which is a party to such Purchase Agreement, any debt securities which are substantially similar to the Notes.
(j) If, during any Marketing Period, any event occurs as a result of which the Prospectus would include 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, or if it is necessary at any time to amend or supplement any Prospectus to comply with the Securities Act, to notify the Agents promptly, in writing, to suspend solicitation of purchases of the Notes; and if the Company shall decide to amend or supplement the Registration Statement or any Prospectus, to advise the Agents promptly by telephone (with confirmation in writing) and to prepare and file with the Commission promptly an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided, however, that if during the period referred to above any Agent shall own any Notes which it has purchased from the Company as principal with the intention of reselling them and the Agent has held such Notes for fewer than 180 days or the Company has accepted an offer to purchase the Notes but the related settlement has not occurred, the Company shall promptly prepare and timely file with the Commission any amendment or supplement to the Registration Statement or any Prospectus that may be required by the Securities Act, in the judgment of the Company or the Agents, or requested by the Commission.
(k) To prepare, with respect to any Notes to be sold through or to the Agents pursuant to this Agreement, a Pricing Supplement with respect to such Notes and to file such Pricing Supplement pursuant to Rule 424 under the Securities Act with the Commission in each case within the applicable time period prescribed for such filing by the Rules and Regulations.
(l) If the Company commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date hereof or if the information reported in the Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will provide the Florida Department of Banking and Finance (the "Department") notice of such business or change, as appropriate, in a form acceptable to the Department.
4. Expenses. The Company agrees to pay (a) the costs incident to the authorization, issuance, sale and delivery of the Notes and any taxes payable in that connection; (b) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement and any amendments and exhibits thereto; (c) the costs of distribution of the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any Incorporated Documents; (d) the costs of reproducing and
distributing this Agreement and any Purchase Agreement; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Notes, if necessary; (f)
any applicable stock exchange listing or other fees; (g) the fees and expenses
of filings, if any, with foreign securities administrators and of qualifying the
Notes under the securities laws of the several jurisdictions as provided in
Section 3(h) and of preparing, reproducing and distributing a Blue Sky
Memorandum (including related fees (in an amount not to exceed $15,000) and
disbursements of counsel to the Agents); (h) the fees paid to rating agencies in
connection with the rating of the Notes; (i) the costs of printing and issuance
of certificates, if any; (j) reasonable fees and disbursements of the Trustee
and any transfer agent, any paying agent, any calculation agent, any exchange
rate agent and any other agents appointed by the Company, and their respective
counsel; (k) the reasonable fees and disbursements of counsel to the Company and
counsel to the Agents; (l) all advertising expenses in connection with the
offering of the Notes incurred with the consent of the Company; and (m) all
other reasonable costs and expenses arising out of the transactions contemplated
hereunder and incident to the performance of the obligations of the Company
under this Agreement or otherwise in connection with the activities of the
Agents under this Agreement.
5. Conditions of the Agents' Obligations. The obligation of the Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of Notes, and the obligation of any Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to the Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Rules and Regulations and in accordance with Sections 3(a) and 3(k); no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the Agents. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
(b) Winston & Strawn, counsel to the Agents, shall have furnished to such Agent such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Indenture, the Notes, the Registration Statement, the Prospectus and
other related matters as such Agent may reasonably request; and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) The General Counsel of the Company or other counsel for the Company satisfactory to the Agents shall have furnished to such Agent their written opinions, dated the Closing Date, in form and substance satisfactory to such Agent, to the effect that:
(i) The Company has the authorized equity capitalization as set forth in the Prospectus;
(ii) 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 its properties and conduct its business as described in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject, other than proceedings which would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, to such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company;
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and of their issuance and sale have been duly established in accordance with the Indenture (including any supplemental indenture thereto), this Agreement and the applicable Purchase Agreement, if any, and when each of the Notes has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture (including any supplemental indenture thereto) and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and will constitute a valid and legally binding obligation of the Company entitled to the benefits of the Indenture (including any supplemental indenture thereto) and enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture (including any supplemental indenture thereto) and the Notes conform in all material respects to the descriptions thereof in the Prospectus;
(vi) The Indenture (including any supplemental indenture thereto) has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture (including any supplemental indenture thereto), this Agreement and any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body is required for the solicitation of offers to purchase the Notes, the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture (including any supplemental indenture thereto), except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase the Notes from the Company and with purchases of the Notes by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) As of the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion), as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said acts;
(x) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed; and
(xi) The Registration Statement was declared effective under the Securities Act on August 1, 2001; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the applicable time period prescribed for such filing by the Rules and Regulations; and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and to such counsel's knowledge, no proceeding for that purpose is pending or threatened by the Commission.
In addition, such counsel shall state that in the course of the preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained in or incorporated by reference in the Registration Statement and Prospectus (except as set forth in the last clause of subparagraph (v) above), and that such counsel has, to the extent such counsel may properly do so in the discharge of its professional responsibilities as experienced securities law practitioners, relied upon the judgment and statements of officers and representatives of the Company with respect to facts necessary to the determination of materiality. As a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement, as of the Effective Time or, if later, as of the date of the Company's most recent filing of an Annual Report on Form 10-K, 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, as of the date of such opinion, includes 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 (except that, in each case, such counsel need not express any belief as to the financial statements and related schedules and other financial data included or incorporated by reference in the Registration Statement or the Prospectus or the Form T-1 under the Trust Indenture Act).
In rendering such opinion, such counsel may state that their opinion is limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company and of public officials.
(d) The Company shall have furnished to the Agents on the Closing Date a letter of Ernst & Young LLP, addressed jointly to the Company and the Agents and dated the Closing Date, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72, and covering such additional financial statement items
and procedures (including a review of interim financial statements specified in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 71) as the Agents may reasonably request and in form and substance satisfactory to the Agents.
(e) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of its Chief Financial Officer or Treasurer and its General Counsel or other counsel stating that the representations and warranties of the Company in Section 1 of this Agreement are true and correct as of such date; the Company has performed all of its agreements contained in this Agreement which are required to be performed on or before the date of such certificate and the conditions set forth in subsection 5(f) of this Agreement have been fulfilled; and no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission.
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus and
(ii) since such date there shall not have been any change in the capital stock
(other than issuances of common stock pursuant to benefit plans or stock
options, repurchases by the Company or conversion of outstanding convertible
securities) or long-term debt (except changes as a result of maturities, sinking
fund payments, amortization of debt discount or currency fluctuations) of the
Company or any of its subsidiaries (otherwise than as set forth or contemplated
in the Prospectus or in a supplement thereto) or any change in or affecting, or
any adverse development which affects, the business, properties, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or offers and sales of Notes, or with the purchase of Notes as
principal pursuant to an applicable Purchase Agreement, as the case may be.
(g) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on the New York Stock Exchange, Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this subsection (g) in the judgment of such Agent makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes or the purchase of Notes from the Company as principal pursuant to the applicable Purchase Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any downgrading in the rating accorded the Company's debt securities by Moody's Investor Service, Inc. or Standard & Poor's Rating Services or (ii) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
(a) Acceptance of Offer Affirms Representations and Warranties. Each acceptance by the Company of an offer for the purchase of Notes shall be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any certificate given to the Agents pursuant hereto are true and correct at the time of such acceptance, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the purchaser or his agent of the Notes relating to such acceptance as though made at and as of each such time (and such representations and warranties shall relate to the Registration Statement and the Prospectus as amended or supplemented at each such time).
(b) Subsequent Delivery of Officers' Certificates. During each Marketing Period, each time (i) that the Registration Statement or any Prospectus shall be amended or supplemented (other than by (A) a Pricing Supplement, (B) an amendment or supplement which relates exclusively to an offering of securities other than the Notes, or (C) except as set forth in (ii) and (iii) below, an amendment or supplement by the filing of an Incorporated Document), (ii) the Company files with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K which contains financial information required to be set forth in or incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents reasonably request following the filing by the Company with the Commission of an Incorporated Document (other than as specified in the preceding clause (ii)) or (iv) the Company sells Notes to an Agent as principal and the applicable Purchase Agreement specifies the delivery of an officers' certificate under this Section 6(b) as a condition to the purchase of Notes pursuant to such Purchase Agreement, the Company shall, promptly following such amendment or supplement, filing of such Annual Report, Quarterly Report or Current Report that is incorporated by reference into the Prospectus or request by the Agents, or concurrently with the Time of Delivery relating to such sale, furnish to the Agents a certificate as of the date of such amendment, supplement, filing or Time of Delivery relating to such sale or if such amendment, supplement or filing was not filed during a Marketing Period, on the first day of the next succeeding Marketing Period, representing that the statements contained in the certificate referred to in Section 5(e) which was last furnished to the Agents are true and correct as of the date of such certificate as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and each 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 Section 5(e), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing Period, each time (i) that the Registration Statement or any Prospectus shall be amended or supplemented (other than by (A) a Pricing Supplement, (B) an amendment or supplement which
relates exclusively to an offering of securities other than the Notes, or (C) except as set forth in (ii) and (iii) below, an amendment or supplement by the filing of an Incorporated Document), (ii) the Company files with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K which contains financial information required to be set forth in or incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents reasonably request following the filing by the Company with the Commission of an Incorporated Document (other than as specified in the preceding clause (ii)) or (iv) the Company sells Notes to an Agent as principal and the applicable Purchase Agreement specifies the delivery of a legal opinion under this Section 6(c) as a condition to the purchase of Notes pursuant to such Purchase Agreement, the Company shall, promptly following such amendment or supplement, filing of such Annual Report, Quarterly Report or Current Report that is incorporated by reference into the Prospectus or request by the Agents, or concurrently with the Time of Delivery relating to such sale, or if such amendment, supplement or filing was not filed during a Marketing Period, on the first day of the next succeeding Marketing Period, furnish the Agents and their counsel with the written opinion of counsel to the Company specified in Section 5(c), addressed to the Agents and dated the date of delivery of such opinion, in form satisfactory to the Agents, to the same effect as the opinion referred to in Section 5(c) hereof, but modified, as necessary, to relate to the Registration Statement and each Prospectus as amended or supplemented to the time of delivery of such opinion; provided, however, that in lieu of such opinion, counsel may furnish the Agents with a letter to the effect that the Agents may rely on a prior opinion to the same extent as though such prior opinion were dated the date of such letter authorizing reliance (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and each Prospectus as amended or supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented to include additional financial information (other than
by (A) a Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes, or (C) except as
set forth in (ii) and (iii) below, an amendment or supplement by the filing of
an Incorporated Document), (ii) the Company files with the Commission an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3
under the Securities Act, (iii) the Agents reasonably request following the
filing by the Company with the Commission of an Incorporated Document (other
than as specified in the preceding clause (ii)) or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement specifies the
delivery of a letter under this Section 6(d) as a condition to the purchase of
Notes pursuant to such Purchase Agreement, the Company shall cause Ernst & Young
LLP (or other independent accountants of the Company acceptable to the Agents)
to furnish the Agents, promptly following such amendment or supplement, filing
of such Annual Report, Quarterly Report or Current Report that is incorporated
by reference into the Prospectus or request by the Agents, or concurrently with
the Time of Delivery relating to such sale, or if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed as provided in Section 5(d) and
dated the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, to the same effect as the letter referred to in
Section 5(d) but modified to relate to the Registration
Statement and each Prospectus, as amended and supplemented to the date of such letter, 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 or other relevant corporation.
(a) The Company shall indemnify and hold harmless each Agent (including
its directors, officers and employees) and each person, if any, who controls any
Agent within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Notes), to which that Agent or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by that indemnified party in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Agent specifically
for inclusion therein; and provided further, that as to any Preliminary
Prospectus or supplement thereto this indemnity agreement shall not inure to the
benefit of any Agent or any person controlling that Agent on account of any
loss, claim, damage, liability or action arising from the sale of Notes to any
person by that Agent if that Agent failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus or supplement thereto was corrected
in that Prospectus, unless such failure resulted from non-compliance by the
Company with Section 3(c). For purposes of the second proviso to the immediately
preceding sentence, the term Prospectus shall not be deemed to include the
documents incorporated by reference therein, and no Agent shall be obligated to
send or give any supplement or amendment to any document incorporated by
reference in a Preliminary Prospectus or supplement thereto or the Prospectus to
any person other than a person to whom such Agent has delivered such
incorporated documents in response to a written request therefor. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any indemnified party.
(b) Each Agent, severally and not jointly, shall indemnify and hold harmless the Company, each of its directors (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company), each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of that Agent specifically for inclusion therein, and shall reimburse the Company and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Agent may otherwise have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7 the
indemnified party shall notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve the indemnifying party from any
liability which the indemnifying party may have to an indemnified party (i)
unless and to the extent that such failure results in the forfeiture by the
indemnifying party of rights and defenses and (ii) otherwise than under this
Section 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Agents shall have the right to employ counsel to represent jointly the
Agents and their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Agents against the Company under this Section 7, if, in the reasonable judgment
of the Agents, there are legal defenses available to them which are different
from or in addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only for purposes of
appearing with such counsel in such jurisdictions in which such firm of
attorneys is not licensed to practice)), and in that event the fees and expenses
of such separate counsel shall be paid by the Company. Anything in this Section
7(c) to the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its written consent
which shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Agents on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice required by
the first sentence of Subsection 7(c), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Agents on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof and with respect to the
failure of the indemnified party to give such notice, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and any Agent on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the sale
of the Notes (before deducting expenses) received by the Company bear to the
total commissions received by such Agent with respect to such offering. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or any Agent, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agents agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to in this Section 7(d). The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
through it and distributed to the public was offered to the public exceeds the
amount of any damages which such Agent has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Each Agent's
obligation to contribute as provided in this Section 7(d) is several and not
joint.
(e) The Agents severally confirm that the statements with respect to the public offering of the Notes under the caption "Supplemental Plan of Distribution" in the Prospectus are correct and constitute the only information furnished in writing to the Company by or on behalf of the Agents specifically for inclusion in the Registration Statement and the Prospectus.
8. Status Of Each Agent. In soliciting offers to purchase the Notes from the Company pursuant to this Agreement (other than in respect of any Purchase Agreement), each Agent is acting individually and not jointly and is acting solely as agent for the Company and not
as principal. Each Agent will make reasonable 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 and accepted by the Company but such Agent shall have no liability to the Company in the event any such purchase is not consummated for any reason. If the Company shall default in its obligation to deliver Notes to a purchaser whose offer the Company has accepted, the Company shall (i) hold the Agents harmless against any loss, claim or damage arising from or as a result of such default by the Company and (ii), in particular, pay to the Agents any commission to which they would be entitled in connection with such sale.
9. Termination. This Agreement may be terminated for any reason at any time by any party upon the giving of one day's written notice of such termination to the other parties hereto; provided, however, if such terminating party is an Agent, such termination shall be effective only with respect to such terminating party. If, at the time of a termination, an offer to purchase any of the Notes has been accepted by the Company but the time of delivery to the purchaser has not occurred, the provisions of this Agreement shall remain in effect until such Notes are delivered. The agreements contained in Sections 2(c), 3(f), 3(g), 4, 7 and 8 and the representations and warranties of the Company in Section 1 shall survive the delivery of any Notes and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party. If at the time of termination of this Agreement any Agent shall notify the Company that it continues to own Notes with the intention of selling them, the provisions of Sections 3 and 6 shall remain in effect until the earlier of (a) the date on which such Notes are sold by the Agent and (b) the date which is 90 days after the termination of the Agreement.
10. Notices. Except as otherwise specifically provided herein or in the
Procedures, all statements, requests, notices and advices hereunder shall be in
writing, or by telephone if promptly confirmed in writing, and if to Salomon
Smith Barney Inc., shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Salomon Smith Barney Inc., 388
Greenwich Street, New York, New York 10013, Fax: (212) 816-0949, Attention:
Medium-Term Note Department; if to Banc One Capital Markets, Inc., shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to Banc One Capital Markets, Inc., One Bank One
Plaza, Suite IL1-0595, Chicago, Illinois 60670, Fax: (312) 732-4773, Attention:
Investment Grade Securities; if to Deutsche Banc Alex. Brown Inc., shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to Deutsche Banc Alex. Brown Inc., 31 West 52nd
Street, New York, New York 10019, Fax: (212) 469-7875, Attention: Debt Capital
Markets Syndication Desk; if to Lehman Brothers Inc., shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or registered
mail to Lehman Brothers Inc., 101 Hudson Street, Jersey City, New Jersey 07302,
Attention: Medium Term Note Desk/Fixed Income Syndicate, Fax: (201) 524-5175
(with a copy to the Office of the General Counsel); if to Merrill Lynch & Co. or
Merrill Lynch, Pierce, Fenner & Smith, Incorporated, shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or registered
mail to Four World Financial Center New York, New York 10080, Attention:
Transaction Management Group, Fax: (212) 449-2234; and if to the Company shall
be sufficient in all respects when delivered or sent by facsimile transmission
or registered mail to the address of the Company set forth in the Registration
Statement, Attention: Treasurer, Fax: (515) 787-8578.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Agents and the Company and their respective successors. This Agreement is for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company contained in this Agreement also shall be deemed to be for the benefit of the person or persons, if any, who control any Agent within the meaning of Section 15 of the Securities Act and, with respect to the indemnities in Section 7, officers, directors and employees of the Agents, and (B) the indemnity agreement of the Agents contained in Section 7(b) shall be deemed to be for the benefit of directors of the Company, officers of the Company who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained in this Agreement. No purchaser of Notes shall be deemed to be a successor solely by reason of such purchase.
12. Governing Law. This Agreement and any Purchase Agreement shall be governed by and construed in accordance with the laws of New York (without giving effect to the principles of choice of law).
13. Counterparts. This Agreement and any Purchase Agreement may be executed in counterparts and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
14. Headings. The headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[signature page follows]
If the foregoing correctly sets forth our agreement, please indicate your acceptance of this Agreement in the space provided for that purpose below.
Very truly yours,
MAYTAG CORPORATION
By: /s/ Steven H. Wood
-----------------------------------
Name: Steven H. Wood
Title: Executive Vice President and
Chief Financial Officer
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CONFIRMED AND ACCEPTED, as of the date first above written:
SALOMON SMITH BARNEY INC.
By: /s/ Michael S. Canmann
-------------------------------------
Title: Director
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BANC ONE CAPITAL MARKETS, INC.
By: /s/ Katherine Cokic
-------------------------------------
Title: Associate Director
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DEUTSCHE BANC ALEX. BROWN INC.
By: /s/ Daniel Benton
-------------------------------------
Title: Managing Director
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LEHMAN BROTHERS INC.
By: /s/ Martin Goldberg
-------------------------------------
Title: Senior Vice President
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MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Scott G. Primrose
-------------------------------------
Title: Authorized Signatory
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EXHIBIT A
MAYTAG CORPORATION
MEDIUM-TERM NOTES, SERIES E
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following percentage of the aggregate U.S. dollar equivalent of the principal amount of Notes:
--------------------------------------------- ---------------------------------
TERM COMMISSION RATE
--------------------------------------------- ---------------------------------
9 months to less than 12 months 0.125%
--------------------------------------------- ---------------------------------
12 months to less than 18 months 0.150%
--------------------------------------------- ---------------------------------
18 months to less than 2 years 0.200%
--------------------------------------------- ---------------------------------
2 years to less than 3 years 0.250%
--------------------------------------------- ---------------------------------
3 years to less than 4 years 0.350%
--------------------------------------------- ---------------------------------
4 years to less than 5 years 0.450%
--------------------------------------------- ---------------------------------
5 years to less than 6 years 0.500%
--------------------------------------------- ---------------------------------
6 years to less than 7 years 0.550%
--------------------------------------------- ---------------------------------
7 years to less than 10 years 0.600%
--------------------------------------------- ---------------------------------
10 years to less than 15 years 0.625%
--------------------------------------------- ---------------------------------
15 years to less than 20 years 0.675%
--------------------------------------------- ---------------------------------
20 years to 30 years 0.750%
--------------------------------------------- ---------------------------------
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EXHIBIT B
MAYTAG CORPORATION
MEDIUM-TERM NOTES, SERIES E, ADMINISTRATIVE PROCEDURES
October 30, 2001
The Medium-Term Notes, Series E, Due from Nine Months to 30 Years from Date of Issue (the "Notes") of Maytag Corporation (the "Company") are to be offered on a continuing basis. Salomon Smith Barney Inc., Banc One Capital Markets, Inc., Deutsche Banc Alex. Brown Inc., Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as agents (each, an "Agent"), have agreed to solicit purchases of Notes issued in fully registered form. The Agents will not be obligated to purchase Notes for their own account. The Notes are being sold pursuant to a Distribution Agreement between the Company and the Agents (the "Distribution Agreement"). The Notes will rank equally with all other unsecured and unsubordinated debt of the Company and have been registered with the Securities and Exchange Commission (the "Commission"). The Notes will be issued under an Indenture date as of June 15, 1987, as supplemented from time to time (the "Indenture"), between the Company and Bank One, National Association, formerly known as The First National Bank of Chicago, as trustee (the "Trustee").
The Distribution Agreement provides that Notes may also be purchased by an Agent acting solely as principal and not as agent. In the event of any such purchase, the functions of both the Agent and the beneficial owner under the administrative procedures set forth below shall be performed by such Agent acting solely as principal, unless otherwise agreed to between the Company and such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined hereinafter) delivered to the Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry Note") or a certificate delivered to the Holder thereof or a Person designated by such Holder (a "Certificated Note"). An owner of a Book-Entry Note will not be entitled to receive a certificate representing such Note, except as provided in the Indenture.
The procedures to be followed during, and the specific terms of, the solicitation of orders by the Agents and the sale as a result thereof by the Company are explained below. Administrative and record-keeping responsibilities will be handled for the Company by its Treasury Department. The Company will advise the Agents and the Trustee in writing of those persons handling administrative responsibilities with whom the Agents and the Trustee are to communicate regarding orders to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained below. Book-Entry Notes will be issued in accordance with the administrative procedures set forth in
Part I hereof, as adjusted in accordance with changes in DTC's operating requirements, and Certificated Notes will be issued in accordance with the administrative procedures set forth in Part II hereof. Unless otherwise defined herein, terms defined in the Indenture and the Notes shall be used herein as therein defined. Notes for which interest is calculated on the basis of a fixed interest rate, which may be zero, are referred to herein as "Fixed Rate Notes." Notes for which interest is calculated on the basis of a floating interest rate are referred to herein as "Floating Rate Notes." To the extent the procedures set forth below conflict with the provisions of the Notes, the Indenture, DTC's operating requirements or the Distribution Agreement, the relevant provisions of the Notes, the Indenture, DTC's operating requirements and the Distribution Agreement shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES.
In connection with the qualification of the Book-Entry Notes for eligibility in the book-entry system maintained by DTC, the Trustee will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Company and the Trustee to DTC, dated as of the date hereof, and a Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of May 26, 1989, and its obligations as a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") having an aggregate initial offering price
not to exceed $500,000,000 (or its equivalent in one
or more foreign currencies) of all such Book-Entry
Notes that have the same Original Issue Date,
Specified Currency, original issue discount
provisions, if any, Interest Payment Dates, Regular
Record Dates, redemption, repayment, reset and
extension provisions (if any), Stated Maturity and,
in the case of Fixed Rate Notes, interest rate, or,
in the case of Floating Rate Notes, Initial Interest
Rate, Interest Rate Basis, Index Maturity, Interest
Determination Dates, Reset Period, Interest Reset
Dates, Spread and/or Spread Multiplier (if any),
minimum interest rate (if any), and maximum interest
rate (if any), (collectively, the "Terms") . Each
Global Security will be dated and issued as of the
date of its authentication by the Trustee. Each
Global Security will bear an original issue date,
which will be (i) with respect to an original Global
Security (or any portion thereof), the original issue
date specified in such Global Security, and (ii)
following a consolidation of Global Securities, with
respect to the Global Security resulting from such
consolidation, the most recent Interest Payment Date
to which interest has been paid or duly provided for
on the predecessor Global Securities, regardless of
the date of authentication of such resulting Global
Security. No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes or (ii)
any Certificated Note.
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Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Ratings Group (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers, which series consists of approximately
900 CUSIP numbers and relates to Global Securities
representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with other
series designations. The Company has obtained from
the CUSIP Service Bureau a written list of such
reserved CUSIP numbers and has delivered to the
Trustee and DTC such written list of CUSIP numbers.
The Company will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities. The
Trustee will notify the Company at any time when
fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems
necessary, the Company will reserve additional CUSIP
numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a
list of such additional CUSIP numbers to the Trustee
and DTC.
Registration: Global Securities will be issued only in fully
registered form without coupons. Each Global Security
will be registered in the name of Cede & Co., as
nominee for DTC, on the Security Register maintained
under the Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one
or more participants in DTC (with respect to such
Book-Entry Note, the "Participants") to act as agent
or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such
Book-Entry Note in the account of such Participants.
The ownership interest of such beneficial owner (or
such Participant) in such Book-Entry Note will be
recorded through the records of such Participants or
through the separate records of such Participants and
one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
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Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
(a copy of which shall be attached to the resulting
Global Security described below) specifying (i) the
CUSIP numbers of two or more outstanding Global
Securities that represent (A) Fixed Rate Book-Entry
Notes having the same Terms and for which interest
has been paid to the same date or (B) Floating Rate
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security
and (iii) a new CUSIP number, obtained from the
Company, to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will
send to its participants (including the Trustee) a
written reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will
no longer be valid. On the specified exchange date,
the Trustee will exchange such Global Securities for
a single Global Security bearing the new CUSIP number
and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed $500,000,000
(or its equivalent in one or more foreign currencies)
in aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$500,000,000 (or its equivalent in one or more
foreign currencies) of principal amount of the
exchanged Global Securities and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
than nine months nor more than 30 years after the
settlement date for such Note. A Floating Rate
Book-Entry Note will mature only on an Interest
Payment Date for such Note.
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Denominations: Book-Entry Notes will be issued in principal amounts
of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000 or other denominations
for foreign currencies as indicated on the face of
the Global Security. Global Securities will be
denominated in principal amounts not in excess of
$500,000,000 (or its equivalent in one or more
foreign currencies) or other denominations for
foreign currencies as indicated on the face of the
Global Security. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
$500,000,000 (or its equivalent in one or more
foreign currencies) would, but for the preceding
sentence, be represented by a single Global Security,
then one Global Security will be authenticated and
issued to represent each $500,000,000 (or its
equivalent in one or more foreign currencies)
principal amount of such Book-Entry Note or Notes and
an additional Global Security will be authenticated
and issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In such a
case, each of the Global Securities representing such
Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: General. Interest, if any, on each Book-Entry Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, on the Global Security representing
such Book-Entry Note, and will be calculated and paid
in the manner described in such Book-Entry Note and
in the Prospectus (as defined in the Distribution
Agreement), as supplemented by the applicable Pricing
Supplement relating to such Book-Entry Note. Unless
otherwise specified therein, each payment of interest
on a Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date or to but
excluding Maturity (other than a Maturity of a Fixed
Rate Book-Entry Note occurring on the 31st day of a
month, in which case such payment of interest will
include interest accrued to but excluding the 30th
day of such month). Interest payable at the Maturity
of a Book-Entry Note will be payable to the Person to
whom the principal of such Note is payable. Standard
& Poor's Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or weekly)
bond report published by Standard & Poor's
Corporation.
B-6
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Regular Record Dates. Unless otherwise specified in a
Book-Entry Note, the Regular Record Date with respect
to any Interest Payment Date shall be the date
fifteen calendar days immediately preceding such
Interest Payment Date, whether or not such date is a
Business Day.
Interest Payment Date on Fixed Rate Book-Entry Notes.
Unless otherwise specified pursuant to Settlement
Procedure "A" below, interest payments on Fixed Rate
Book-Entry Notes will be made semiannually on
February 15 and August 15 of each year and at
Maturity; provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record
Date; provided, further, that if an Interest Payment
Date for a Fixed Rate Book-Entry Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date.
Interest Payment Date on Floating Rate Book-Entry
Notes. Interest payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semi-annually or annually. Unless otherwise agreed
upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes that reset daily,
weekly or monthly, on the third Wednesday of each
month; that reset quarterly, on the third Wednesday
of March, June, September and December of each year;
that reset semiannually, on the third Wednesday of
the two months specified pursuant to Settlement
Procedure "A" below; and that reset annually, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however,
that if an Interest Payment Date for a Floating Rate
Book-Entry Note would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except that in the
case of a Floating Rate Book-Entry Note for which the
Interest Rate Basis is LIBOR, if such Business Day is
in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding London
Business Day; and provided further, that in the case
of a Floating Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date or
on an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
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Calculation of Interest: Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual
days elapsed and a year of 360 days, except that in
the case of a Floating Rate Book-Entry Note for which
the Interest Rate Basis is the CMT Rate or the
Treasury Rate, interest will be calculated on the
basis of the actual number of days in the year.
Payments of Principal
and Interest: Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal and
interest to be paid on each Global Security maturing
either at Stated Maturity or otherwise in the
following month. The Company, the Trustee and DTC
will confirm the amounts of such principal and
interest payments with respect to each such Global
Security on or about the fifth Business Day preceding
the Maturity of such Global Security. On or before
Maturity, the Company will pay to the Trustee, as the
paying agent, the principal amount of such Global
Security, together with interest due at such
Maturity. The Trustee will pay such amounts to DTC at
the times and in the manner set forth below under
"Manner of Payment". If any Maturity of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Maturity. Promptly after payment
to DTC of the principal and interest due at Maturity
of such Global Security, the Trustee will cancel such
Global Security in accordance with the terms of the
Indenture and so advise the Company. On the first
Business Day of each month, the Trustee will deliver
to the Company a written statement indicating the
total principal amount of Outstanding Global
Securities for which it serves as trustee as of the
immediately preceding Business Day. If the Maturity
of a Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue
on such payment for the period from and after such
Maturity.
B-8
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Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Maturity shall be paid by the
Company in the Specified Currency to the Trustee in
immediately available funds not later than 9:30 A.M.
(New York City time) for use by the Trustee on such
date. The Company will make such payment on such
Global Securities by wire transfer to the Trustee in
the Specified Currency or by instructing the Trustee
to debit the account of the Company maintained with
the Trustee. The Company will confirm such wire
transfer instructions in writing to the Trustee.
Prior to 10:00 A.M. (New York City time) on the date
of Maturity or as soon as possible thereafter, the
Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on Global Securities on such date. On
each Interest Payment Date (other than at Maturity),
interest payments shall be made to DTC in funds
available for immediate use by DTC, in accordance
with existing arrangements between the Trustee and
DTC. On each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect,
such amounts in funds available for immediate use to
the respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. Neither the Company (either as
issuer or as Paying Agent) nor the Trustee shall have
any direct responsibility or liability for the
payment by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
Procedures upon
Company's Exercise of
Optional Redemption: Company Notice to Trustee Regarding Exercise of
Optional Redemption. At least 45 days prior to the
date on which it intends to redeem a Book-Entry Note,
the Company will notify the Trustee that it is
exercising such option with respect to such
Book-Entry Note on such date.
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Trustee Notice to DTC Regarding Company's Exercise of
Optional Redemption. After receipt of notice that the
Company is exercising its option to redeem a
Book-Entry Note, the Trustee will, at least 30 days
(but not more than 60 days) before the redemption
date for such Book-Entry Note, hand deliver to DTC a
notice identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's exercise of
such option with respect to such Book-Entry Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with the
Trustee the amount of money sufficient to pay the
redemption price, plus interest accrued to (but
excluding) such redemption date, for all the
Book-Entry Notes or portions thereof which are to be
repaid on such redemption date. The Trustee will use
such money to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
Payments of Principal
and Interest upon
Exercise of
Optional Repayment: Trustee Notice to Company of Option to be Repaid.
Upon receipt of notice of exercise of the option for
repayment and the Global Securities representing the
Book-Entry Notes so to be repaid as set forth in such
Notes, the Trustee shall give notice to the Company
not less than 20 days prior to each repayment date of
such repayment date and of the principal amount of
Book-Entry Notes to be repaid on such repayment date.
Deposit of Repayment Price. On or prior to any
repayment date the Company shall deposit with the
Trustee an amount of money sufficient to pay the
optional repayment price, and accrued interest
thereon to (but excluding) such date, of all the
Book-Entry Notes or portions thereof which are to be
repaid on such date. The Trustee will use such money
to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedures upon
Company's Exercise of
Optional Extension of
Maturity: Company Notice to Trustee Regarding Exercise of
Extension Option. At least 45 days (but no more than
60 days) prior to the then current maturity of a
Book-Entry Note, the Company will notify the Trustee
whether it intends to exercise its option with
respect to such Book-Entry Note to extend the
Maturity of such Book-Entry Note.
B-10
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Trustee Notice to DTC Regarding Company's Exercise of
Extension Option. After receipt of notice that the
Company is exercising its option to extend the
maturity of a Book-Entry Note, the Trustee will, at
least 40 days before the then current maturity date
for such Book-Entry Note, hand deliver to DTC a
notice identifying such Book-Entry Note by CUSIP
number and informing DTC of the Company's exercise of
such option with respect to such Book-Entry Note.
Procedures upon
Company's Exercise of
Optional Rate Reset: Company Notice to Trustee Regarding Exercise of Reset
Option. At least 45 days (but no more than 60 days)
prior to an optional reset date of a Book-Entry Note,
the Company will notify the Trustee whether it
intends to exercise its option to reset the interest
rate, in the case of a Fixed Rate Note, and/or Spread
or Spread Multiplier in the case of a Floating Rate
Note, with respect to the Book-Entry Note.
Trustee Notice to DTC Regarding Company's Exercise
of Reset Option. After receipt of notice that the
Company is exercising its option to reset the
interest rate, in the case of a Fixed Rate Note, or
Spread and/or Spread Multiplier in the case of a
Floating Rate Note, of a Book-Entry Note, the
Trustee will, at least 40 days before the optional
reset date, hand deliver to DTC a notice identifying
such Book-Entry Note by CUSIP number and informing
DTC of the Company's exercise of such option with
respect to such Book-Entry Note.
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss from time to
time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
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Acceptance and Rejection
of Offers: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all offers to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed to by the Company
and each of the Agents, the Company has the sole
right to accept offers to purchase Book-Entry Notes
and may reject any such offer in whole or in part.
Preparation of Pricing
Supplement: If any offer to purchase a Book-Entry Note is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to have such Pricing Supplement filed
with the Commission via EDGAR in accordance with the
applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and
additional copies if requested) to the Agent which
presented the offer (the "Presenting Agent"). The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
B-12
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Suspension of
Solicitation; Amendment
or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Distribution
Agreement, the Company may instruct each Agent to
suspend solicitation of purchases of Book-Entry Notes
at any time. Upon receipt of such instructions, each
Agent will forthwith suspend such solicitations until
such time as it has been advised by the Company that
such solicitations may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
Distribution Agreement) or the Prospectus, it will
promptly advise each Agent and will furnish it with
the proposed amendment or supplement and with any
such certificates and opinions as are required, all
to the extent required by and in accordance with the
terms of the Distribution Agreement. Subject to the
provisions of the Distribution Agreement, the Company
may file with the Commission any such supplement to
the Prospectus. The Company will provide the Agents
and the Trustee with copies of any such supplement,
and confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
The Company will, consistent with the obligations
described above, promptly advise each Agent and the
Trustee whether orders outstanding at the time each
Agent suspends solicitation may be settled and
whether copies of such Prospectus as in effect at the
time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection
with the settlement of such orders. The Company will
have the sole responsibility for such decision and
for any arrangements that may be made in the event
that the Company determines that such orders may not
be settled or that copies of such Prospectus and
Pricing Supplement may not be so delivered.
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Procedures For Rate
Changes: When the Company has determined to change the
interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers. The Agents
will telephone the Company with recommendations as to
the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of offers.
Until such time, only "indications of interest" may
be recorded. The Company will file with the
Commission, in accordance with the applicable
paragraph of Rule 424(b) under the Act, a Pricing
Supplement to the Prospectus relating to such Notes
that reflects the applicable interest rates and other
terms and will deliver copies of such Pricing
Supplement to the Agents.
Delivery of Prospectus: A copy of the Prospectus and Pricing Supplement
relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of such
Book-Entry Note or payment for such Book-Entry Note
by its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by an Agent
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is
sent by such Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect
when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, each
Agent will deliver a Prospectus and Pricing
Supplement as herein described with respect to each
Book-Entry Note sold by it. The Company will make
such delivery if such Book-Entry Note is sold
directly by the Company to a purchaser (other than an
Agent).
Confirmation: For each offer to purchase a Book-Entry Note
solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled on
the third Business Day following the date of sale of
such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day, which
shall be no earlier than the next Business Day
following the date of sale.
B-14
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Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through an Agent, as agent,
shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of the following settlement information:
1. Principal amount (including Specified
Currency).
2. Stated Maturity and, if applicable, Final
Maturity.
3. In the case of a Fixed Rate Book-Entry Note,
the interest rate, or, in the case of a
Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time), Interest
Rate Basis, Index Maturity, Interest
Determination Date, Reset Period, Interest
Reset Dates, Spread and/or Spread Multiplier
(if any), minimum interest rate (if any) and
maximum interest rate (if any).
4. Interest Payment Dates and Regular Record
Dates.
5. Redemption, extension and repayment provisions,
if any.
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6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined as provided in Exhibit A to the Distribution Agreement.
9. Whether the Note is issued at an original issue discount and, if so, the total amount of OID, the yield to maturity and the initial accrued period OID.
B. The Company will assign a CUSIP number to the Global Security representing such Book-Entry Note and then advise the Trustee by telephone (confirmed in writing at any time on the same date) or electronic transmission of the information set forth in Settlement Procedure "A" above, such CUSIP number and the name of the Presenting Agent. The Company will also notify the Presenting Agent of such CUSIP number by telephone as soon as practicable. Each such communication by the Company shall constitute a representation and warranty by the Company to the Trustee and each Agent that (i) such Note is then, and at the time of issuance and sale thereof will be, duly authorized for issuance and sale by the Company, (ii) such Note, and the Global Security representing such Note, will conform with the terms of the Indenture pursuant to which such Note and Global Security are issued and (iii) upon authentication and delivery of such Global Security, the aggregate initial offering price of all Notes issued under the Indenture will not exceed $500,000,000 (or its equivalent in one or more foreign currencies).
C. The Trustee will enter a pending deposit message through DTC's Participant Terminal System, providing the following settlement information to DTC (which shall route such information to Standard & Poor's Corporation), the Presenting Agent and, upon request, the Trustee:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry Note, number of days by which such date succeeds the related Regular Record Date and amount of interest payable on such Interest Payment Date.
4. The Reset Period.
5. CUSIP number of the Global Security representing such Book-Entry Note.
6. Whether such Global Security will represent any other Book-Entry Note (to the extent known at such time).
D. To the extent the Company has not already done so, the Company will deliver to the Trustee a Global Security in a form that has been approved by the Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the appropriate legend, as instructed by DTC, if not already set forth thereon, and authenticate the Global Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC to (i) debit such Book-Entry Note to the Trustee's participant account and credit such Book-Entry Note to the Presenting Agent's participant account and (ii) debit the Presenting Agent's settlement account and credit the Trustee's settlement account for an amount equal to the price of such Book-Entry Note less the Presenting Agent's commission. The entry of such a deliver order shall constitute a representation and warranty by the Trustee to DTC that (i) the Global Security representing such Book-Entry Note has been issued and authenticated and (ii) the Trustee is holding such Global Security pursuant to the Medium-Term Note Certificate Agreement between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC (i) to debit such Book-Entry Note to the Presenting Agent's participant account and credit such Book-Entry Note to the participant accounts of the Participants with respect to such Book-Entry Note and (ii) to debit the settlement accounts of such Participants and credit the settlement account of the Presenting Agent for an amount equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures "G" and "H" will be settled in accordance with SDFS operating procedures in effect on the settlement date.
J. The Trustee will, upon receipt of funds from the Presenting Agent in accordance with Settlement Procedure "G", wire transfer to or credit the account of the Company maintained at Harris Trust and Savings Bank, ABA #071000288, Account Number 336-159-9, in funds available for immediate use, in the amount transferred to the Trustee in accordance with Settlement Procedure "G."
K. The Presenting Agent will confirm the purchase of such Book-Entry Note to the purchaser either by transmitting to the Participants with respect to such Book-Entry Note a confirmation order or orders through DTC's institutional delivery system or by mailing a written confirmation to such purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by an Agent,
Timetable: as agent, and accepted by the Company for settlement
on the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the date on which an
offer to purchase has been accepted
(the "sale date")
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
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If a sale is to be settled more than one Business Day after the sale date, Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable but no later than 11:00 A.M. and 12:00 Noon on the first Business Day after the sale date and no later than 2:00 P.M. on the Business Day before the settlement date, respectively. If the Initial Interest Rate for a Floating Rate Book-Entry Note has not been determined at the time that Settlement Procedure "A" is completed, Settlement Procedures "B" and "C" shall be completed as soon as such rate has been determined but no later than 12:00 Noon and 2:00 P.M., respectively, on the Business Day before the settlement date. Settlement Procedure "I" is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the Trustee will deliver to DTC, through DTC's Participant Terminal System, a cancellation message to such effect by no later than 2:00 P.M. on the Business Day immediately preceding the scheduled settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "G", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the withdrawal
message, provided that the Trustee's participant
account contains a principal amount of the Global
Security representing such Book-Entry Note that is at
least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all
the Book-Entry Notes represented by a Global
Security, the Trustee will cancel such Global
Security in accordance with the Indenture, make
appropriate entries in the Trustee's records and so
advise the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all,
of the Book-Entry Notes represented by a Global
Security, the Trustee will exchange such Global
Security for two Global Securities, one of which
shall represent such Book-Entry Note or Notes and
shall be cancelled immediately after issuance and the
other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent for
such Note may enter SDFS deliver orders through DTC's
Participant Terminal System reversing the orders
entered pursuant to Settlement Procedure "H".
Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the
preceding paragraph. If such failure shall have
occurred for any reason other than a default by the
Presenting Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the
Presenting Agent or the Trustee, as applicable, on an
equitable basis for the loss of the use of the funds
during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. If it is
necessary for the Trustee to return funds to DTC by
reason of any failure to settle with respect to any
Book-Entry Note, the Company shall pay to the Trustee
funds immediately available to the Trustee on the
date of failure, and the Trustee is hereby instructed
to withdraw said funds from an account maintained by
the Company at Harris Trust and Savings Bank. The
Trustee shall give the Company notice of said
withdrawal one hour prior thereto or such lesser time
prior thereto as is practicable under the
circumstances. In the event of a failure to settle
with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the Trustee will provide, in accordance
with Settlement Procedure "E" for the authentication
and issuance of a Global Security representing the
other Book-Entry Notes to have been represented by
such Global Security and will make appropriate
entries in its records.
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PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the Original Issue Date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the corporate trust office of the
Trustee. Certificated Notes will be exchangeable for
other Certificated Notes having identical terms but
different authorized denominations without service
charge. Certificated Notes will not be exchangeable
for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date not less
than nine months nor more than 30 years from the
settlement date for such note. A Floating Rate
Certificated Note will mature only on an Interest
Payment Date for such Note.
Denominations: Certificated Notes denominated in U.S. dollars will
be issued in denominations of $1,000 or any amount in
excess thereof that is an integral multiple of
$1,000. Certificated Notes denominated in foreign
currencies will be issued in the denominations
specified on the face of such Certificated Notes.
Interest: General. Interest, if any, on each Certificated Note
will accrue from the original issue date of such Note
for the first interest period or the last date to
which interest has been paid, if any, for each
subsequent interest period, and will be calculated
and paid in the manner described in such Note and in
the Prospectus (as defined in the Distribution
Agreement) and Pricing Supplement relating to such
Note. Unless otherwise specified therein, each
payment of interest on a Certificated Note will
include interest accrued to but excluding the
Interest Payment Date or to but excluding Maturity
(other than a Maturity of a Fixed Rate Certificated
Note occurring on the 31st day of a month, in which
case such payment of interest will include interest
accrued to but excluding the 30th day of such month).
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Regular Record Dates. Unless otherwise specified in a Certificated Note, the Regular Record Dates with respect to any Interest Payment Date shall be the date fifteen calendar days immediately preceding such Interest Payment Date, whether or not such date is a Business Day.
Interest Payment Date on Fixed Rate Certificated Notes. Unless otherwise specified pursuant to Settlement Procedure "A" below, interest payments on Fixed Rate Certificated Notes will be made semiannually on February 15 and August 15 of each year and at Maturity; provided, however, that in the case of a Fixed Rate Certificated Note issued between a Regular Record Date and an Interest Payment Date or on an Interest Payment Date, the first interest payment will be made on the Interest Payment Date following the next succeeding Regular Record Date; provided, further, that if any Interest Payment Date for a Fixed Rate Certificated Note is not a Business Day, the payment due on such day shall be made on the next succeeding Business Day and no interest shall accrue on such payment for the period from and after such Interest Payment Date.
Interest Payment Date on Floating Rate Certificated Notes. Interest payments will be made on Floating Rate Certificated Notes monthly, quarterly, semi-annually or annually. Interest will be payable, in the case of Floating Rate Certificated Notes that reset daily, weekly or monthly, on the third Wednesday of each month; that reset quarterly, on the third Wednesday of March, June, September and December of each year; that reset semiannually, on the third Wednesday of the two months specified pursuant to Settlement Procedure "A" below; and that reset annually, on the third Wednesday of the month specified pursuant to Settlement Procedure "A" below; provided, however, that if an Interest Payment Date for a Floating Rate Certificated Note would otherwise be a day that is not a Business Day with respect to such Floating Rate Certificated Note, such Interest Payment Date will be the next succeeding Business Day with respect to such Floating Rate Certificated Note, except that in the case of a Floating Rate Certificated Note for which the Interest Rate Basis is LIBOR, if such Business Day is in the next succeeding calendar month, such Interest Payment Date will be the immediately preceding London Business Day; and provided further, that in the case of a Floating Rate Certificated Note issued between a Regular Record Date and an Interest Payment Date or on an Interest Payment Date, the first interest payment will be made on the Interest Payment Date following the next succeeding Regular Record Date.
Calculation of Interest: Fixed Rate Certificated Notes. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Certificated Notes, except as otherwise
set forth therein, will be calculated on the basis of
actual days elapsed and a year of 360 days, except
that in the case of a Floating Rate Certificated Note
for which the Interest Rate Basis is the CMT Rate or
the Treasury Rate, interest will be calculated on the
basis of the actual number of days in the year.
Payments of Principal and
Interest: Interest, if any, on each Certificated Note will be
calculated and paid in the manner described in such
Note and in the Prospectus, as supplemented by the
applicable Pricing Supplement. Unless otherwise
provided in the Indenture or the Certificated Note,
the first payment of interest on any Certificated
Note originally issued between a Record Date and an
Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest payable at
the Maturity of a Certificated Note will be payable
to the Person to whom the principal of such Note is
payable. Unless other arrangements are made, all
interest payments (excluding interest payments made
on the Maturity Date) will be made by check mailed to
the person entitled thereto as provided above.
Within 10 days following each Regular Record Date,
the Trustee will inform the Company of the total
amount of the interest payments to be made by the
Company on the next succeeding Interest Payment Date.
The Trustee will provide monthly to the Company a
list of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month.
The Trustee will be responsible for withholding taxes
on interest paid on Certificated Notes as required by
applicable law.
If the Maturity of a Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Maturity.
B-23
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Procedures upon
Company's Exercise of
Optional Redemption: Company Notice to Trustee Regarding Exercise of
Optional Redemption. At least 45 days prior to the
date on which it intends to redeem a Certificated
Note, the Company will notify the Trustee that it is
exercising such option with respect to such
Certificated Note on such date.
Trustee Notice to Holders Regarding Company's
Exercise of Optional Redemption. After receipt of
notice that the Company is exercising its option to
redeem a Certificated Note, the Trustee will, at
least 30 days (but not more than 60 days) before the
redemption date for such Certificated Note, mail a
notice, first class, postage prepaid, to the Holder
of such Certificated Note informing such Holder of
the Company's exercise of such option with respect to
such Certificated Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with the
Trustee an amount of money sufficient to pay the
redemption price, plus interest accrued to (but
excluding) such redemption date, for all the
Certificated Notes or portions thereof and which are
to be repaid on such redemption date. The Trustee
will use such money to repay such Certificated Notes
pursuant to the terms set forth in such Notes.
Payments of Principal and
Interest Upon Exercise of
Optional Repayment: Trustee Notice to Company of Option to be Repaid.
Upon receipt of notice of exercise of the option for
repayment and the Certificated Notes so to be repaid
as set forth in such Notes, the Trustee shall give
notice to the Company not less than 20 days prior to
each repayment date of such repayment date and of the
principal amount of Certificated Notes to be repaid
on such repayment date.
Deposit of Repayment Price. On or prior to any
repayment date the Company shall deposit with the
Trustee an amount of money sufficient to pay the
optional repayment price, and accrued interest
thereon to (but excluding) such date, of all the
Certificated Notes or portions thereof which are to
be repaid on such date. The Trustee will use such
money to repay such Certificated Notes pursuant to
the terms set forth in such Notes.
B-24
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Procedures upon
Company's Exercise of
Optional Extension of
Maturity: Company Notice to Trustee Regarding Exercise of
Extension Option. At least 45 days (but not more than
60 days) prior to the then current maturity of a
Certificated Note, the Company will notify the
Trustee whether it intends to exercise its option
with respect to such Certificated Note to extend the
Maturity of such Certificated Note.
Trustee's Notice to Holders Regarding Company's
Exercise of Extension Option. After receipt of notice
that the Company is exercising its option to extend
the maturity date of a Certificated Note, the Trustee
will, at least 40 days before the redemption date for
such Certificated Note, mail a notice, first class,
postage prepaid, to the Holder of such Certificated
Note, informing such Holder of the Company's exercise
of such option with respect to such Certificated
Note.
Procedures upon
Company's Exercise of
Optional Rate Reset: Company Notice to Trustee Regarding Exercise of Reset
Option. At least 45 days (but not more than 60 days)
prior to an optional reset date of a Certificated
Note, the Company will notify the Trustee whether it
intends to exercise its option to reset the interest
rate, in the case of a Fixed Rate Note, or Spread
and/or Spread Multiplier in the case of a Floating
Rate Note, with respect to the Certificated Note.
Trustee's Notice to Holders Regarding Company's
Exercise of Reset Option. After receipt of a notice
that the Company is exercising its option to reset
the interest rate, in the case of a Fixed Rate Note,
or Spread and/or Spread Multiplier in the case of a
Floating Rate Note, the Trustee will, at least 40
days before the option reset date, mail a notice,
first class, postage prepaid, to the Holder of such
Certificated Note, informing such Holder of the
Company's exercise of such option with respect to
such Certificated Note.
B-25
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Procedure for Rate
Setting and Posting: The Company and the Agents will discuss from time to
time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Certificated Notes that may be sold as a result of
the solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne by,
any Certificated Notes in respect of which the Agents
are to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and Rejection
of Offers: Unless otherwise instructed by the Company, each
Agent will advise the Company promptly by telephone
of all offers to purchase Certificated Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed to by the Company
and each of the Agents, the Company has the sole
right to accept offers to purchase Notes and may
reject any such offer in whole or in part. Before
accepting any offer to purchase a Certificated Note
to be settled in less than three Business Days, the
Company shall verify that the Trustee will have
adequate time to prepare and authenticate such Note.
Preparation of Pricing
Supplement: If any offer to purchase a Certificated Note is
accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to have such Pricing Supplement filed
with the Commission via EDGAR in accordance with the
applicable paragraph of Rule 424(b) under the Act and
will supply at least ten copies thereof (and
additional copies if requested) to the Agent which
presented the order (the "Presenting Agent"). The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of such
Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to
which they are attached (other than those retained
for files), will be destroyed.
B-26
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Suspension of
Solicitation; Amendment
or Supplement: Subject to the Company's representations, warranties
and covenants contained in the Distribution
Agreement, the Company may instruct each Agent to
suspend solicitation of purchases of Certificated
Notes at any time. Upon receipt of such instructions,
each Agent will forthwith suspend such solicitations
until such time as it has been advised by the Company
that such solicitations may be resumed.
If the Company decides to amend or supplement the
Registration Statement (as defined in the
Distribution Agreement) or the Prospectus, it will
promptly advise each Agent and will furnish it with
the proposed amendment or supplement and with any
certificates and opinions as are required, all to the
extent required by and in accordance with the terms
of the Distribution Agreement. Subject to the
provisions of the Distribution Agreement, the Company
may file with the Commission any such supplement to
the Prospectus. The Company will provide the Agents
and the Trustee with copies of any such supplement,
and confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424(b).
The Company will, consistent with the obligations
described above, promptly advise each Agent and the
Trustee whether orders outstanding at the time each
Agent suspends solicitation may be settled and
whether copies of such Prospectus as in effect at the
time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection
with the settlement of such orders. The Company will
have the sole responsibility for such decision and
for any arrangements that may be made in the event
the Company determines that such orders may not be
settled or that copies of such Prospectus and Pricing
Supplement may not be so delivered.
B-27
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Procedure for Rate
Changes: When the Company has determined to change the
interest rates of Certificated Notes being offered,
it will promptly advise the Agents and the Agents
will forthwith suspend solicitation of offers. The
Agents will telephone the Company with
recommendations as to the changed interest rates. At
such time as the Company has advised the Agents of
the new interest rates, the Agents may resume
solicitation of offers. Until such time, only
"indications of interest" may be recorded. The
Company will file with the Commission, in accordance
with the applicable paragraph of Rule 424(b) under
the Act, a Pricing Supplement to the Prospectus
relating to such Notes that reflects the applicable
interest rates and other terms and will deliver
copies of such Pricing Supplement to the Agents.
Delivery of Prospectus: A copy of the Prospectus and Pricing Supplement
relating to a Certificated Note must accompany or
precede the earlier of any written offer of such
Note, delivery of such Note, confirmation of the
purchase of such Note and payment for such Note by
its purchaser. If notice of a change in the terms of
the Certificated Notes is received by an Agent
between the time an order for a Certificated Note is
placed and the time written confirmation thereof is
sent by such Agent to a customer or his agent, such
confirmation shall be accompanied by a Prospectus and
Pricing Supplement setting forth the terms in effect
when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above each
Agent will deliver a Prospectus and Pricing
Supplement as herein described with respect to each
Note sold by it. The Company will make such delivery
if such Certificated Note is sold directly by the
Company to a purchaser (other than any Agent).
Confirmation: For each offer to purchase a Certificated Note
solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Presenting Agent and such
Presenting Agent's delivery of such Note against
receipt of immediately available funds shall, with
respect to such Note, constitute "settlement." All
orders accepted by the Company will be settled on the
third Business Day following the date of sale of such
Certificated Note pursuant to the timetable for
settlement set forth below, unless the Company, the
Trustee and the purchaser agree to settlement on a
later date, which shall be no earlier than the next
Business Day following the date of sale.
B-28
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Settlement Procedures: Settlement Procedures with regard to each
Certificated Note sold by the Company through an
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by
telephone of the following settlement
information, in time for the Trustee to prepare
and authenticate the required Note:
1. Name in which such Certificated Note is to
be registered ("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount (including Specified
Currency).
5. Stated Maturity, and if applicable, Final
Maturity.
6. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Rate Basis, Index Maturity,
Interest Determination Date, Reset Period,
Interest Reset Dates, Spread and/or Spread
Multiplier (if any), minimum interest rate
(if any) and maximum interest rate (if any).
7. Interest Payment Dates and Regular Record
Dates.
8. Redemption, extension and repayment
provisions, if any.
9. Settlement date.
10. Price.
11. Presenting Agent's commission, determined as
provided in Exhibit A to the Distribution
Agreement.
12. Whether such Certificated Note is issued at
an original issue discount, and, if so, the
total amount of OID, the yield to maturity
and the initial accrual period OID.
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B. The Company will advise the Trustee by telephone (confirmed in writing at any time on the sale date) or electronic transmission of the information set forth in Settlement Procedure "A" above and the name of the Presenting Agent. Each such communication by the Company shall constitute a representation and warranty by the Company to the Trustee and each Agent that (i) such Note is then, and at the time of issuance and sale thereof will be, duly authorized for issuance and sale by the Company, (ii) such Note will conform with the terms of the Indenture and (iii) upon authentication and delivery of such Note, the aggregate initial offering price of all Notes issued under the Indenture will not exceed $500,000,000 (or its equivalent in one or more foreign currencies).
C. The Company will deliver to the Trustee a pre-printed four-ply packet for such Certificated Note, which packet will contain the following documents in forms that have been approved by the Company, the Agents and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated Note and authenticate such Certificated Note and deliver it (with the confirmation) and Stubs One and Two to the Presenting Agent, all in accordance with the written directions (or oral instructions confirmed in writing on the next Business Day) of the Company, and the Presenting Agent will acknowledge receipt of the Note by stamping or otherwise marking Stub One and returning it to the Trustee. Such delivery will be made only against such acknowledgment of receipt. In the event that the instructions given by the Presenting Agent for payment to the account of the Company are revoked, the Company will as promptly as possible wire transfer to the account of the Presenting Agent an amount of immediately available funds equal to the amount of such payment made.
E. The Presenting Agent will deliver such Certificated Note (with the confirmation) to the customer against payment in immediately payable funds. The Presenting Agent will obtain the acknowledgment of receipt of such Certificated Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by first-class mail.
Settlement Procedures
Timetable: For offers of Certificated Notes solicited by an
Agent, as agent, and accepted by the Company,
Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times
|
(New York City time) set forth below:
Settlement
Procedure Time:
---------- -----
A 1:00 P.M. on the day before settlement date
B-C 3:00 P.M. on the day before settlement date
D 2:15 P.M. on the settlement date
E 3:00 P.M. on the settlement date
F 5:00 P.M. on the settlement date
|
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the Presenting
Agent will notify the Company and the Trustee by
telephone and return such Certificated Note to the
Trustee. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the
Presenting Agent an amount equal to the amount
previously credited to the account of the Company in
respect of such Certificated Note. Such wire transfer
will be made on the settlement date, if possible, and
in any event not later than the Business Day
following the settlement date. If the failure shall
have occurred for any reason other than a default by
the Presenting Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the
Presenting Agent or the Trustee, as appropriate, on
an equitable basis for its loss of the use of the
funds during the period when they were credited to
the account of the Company. Immediately upon receipt
of the Certificated Note in respect of which such
failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture,
make appropriate entries in the Trustee's records and
so advise the Company.
|
PART III: ADMINISTRATIVE PROCEDURES FOR BOTH
BOOK-ENTRY AND CERTIFICATED NOTES
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with
any payment to the Company, DTC or any Agent or the
purchaser, it being understood by all parties that
payments made by the Trustee to the Company, DTC or
any Agent shall be made only to the extent that funds
are provided to the Trustee for such purpose.
Authenticity of
Signatures: The Company will cause the Trustee to furnish each
Agent from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Notes, but each Agent will have no
obligation or liability to the Company or the Trustee
in respect of the authenticity of the signature of
any officer, employee or agent of the Company or the
Trustee on any Note. The Company will furnish the
Trustee from time to time with the specimen
signatures of persons who have been authorized by the
Company to sign Company Orders.
Payment of Expenses: Each Agent shall forward to the Company, from time to
time (but not more often than monthly), a statement
of the out-of-pocket expenses incurred by such Agent
during that time which are reimbursable to it
pursuant to the terms of the Distribution Agreement.
The Company will remit payment promptly to such
Agent.
Advertising Costs: The Company will determine with each Agent the amount
of advertising that may be appropriate in soliciting
offers to purchase the Notes. Advertising expenses
will be paid by the Company.
Periodic Statements from
the Trustee: Periodically, the Trustee will send to the Company
upon request a statement setting forth the principal
amount of Notes outstanding as of that date and
setting forth a brief description of any sales of
Notes which the Company has advised, but which have
not yet been settled.
|
EXHIBIT C
PURCHASE AGREEMENT
Maytag Corporation __________, ____
403 West Fourth Street North
Newton, Iowa 50208
Attention: Steven J. Klyn
Vice President and Treasurer
|
The undersigned severally agree to purchase the following principal amount of the Notes (the "Notes") described in the Distribution Agreement dated October 30, 2001 (as it may be supplemented or amended from time to time, the "Distribution Agreement") between the Company and the Agents (including the undersigned) named therein:
Specified Currency: __________________ Principal Amount: __________________ Amount Purchased: _________________: __________________ _________________: __________________ _________________: __________________ Interest Rate: ______% Discount: ______% of Principal Amount Aggregate Price to be paid to Company (in immediately available funds): __________________ Settlement Date and Time: __________________ Place of Delivery: __________________ Original Issue Date: __________________ Stated Maturity: __________________ Interest Payment Dates: __________________ Regular Record Dates: __________________ Other Terms: __________________ |
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants and
agreements contained therein, including, without limitation, your obligations
pursuant to Section 6 and Section 7 thereof. Our obligation hereunder is subject
to the conditions set forth in Section 5 of the Distribution Agreement and to
the further condition that we shall receive (1) the opinions referred to in
Section 6(c) of the Distribution Agreement, (2) the applicable letter referred
to in Section 6(d) of the Distribution Agreement, (3) the certificate referred
to in Section 6(b) of the Distribution Agreement (in the case of each of (1),
(2) and (3) above, dated as of the above Settlement Date) and (4) and such
further information, certificates and documents as the undersigned Agents or
counsel to the undersigned Agents may reasonably request. Terms defined in the
Prospectus relating to the Notes and in the Distribution Agreement shall have
the same meanings when used herein.
In further consideration of our agreement hereunder, you agree that between the date hereof and the above Settlement Date, you will not, without our prior written consent, offer or sell, or enter into any agreement to sell, any debt securities of the Company which are substantially similar to the Notes.
We may terminate this Agreement, in our absolute discretion, by notice given to and received by the Company prior to delivery of and payment for the Notes, if prior to that time:
(a)(i) The Company or any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date there shall have been any change in the capital stock (other than issuances of common stock pursuant to benefit plans or stock options, repurchases by the Company or conversion of outstanding convertible securities) or long-term debt (except changes as a result of maturities, sinking fund payments, amortization of debt discount or currency fluctuations) of the Company or any of its subsidiaries (otherwise than as set forth or contemplated in the Prospectus or in a supplement thereto) or any change in or affecting, or any adverse development which affects, the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in our judgment, so material and adverse as to make it impracticable or inadvisable to proceed with our purchase of the Notes as principal pursuant to this Agreement; or
(b) Subsequent to the execution and delivery of this Agreement, there shall have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on The New York Stock Exchange, Inc., (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities, (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this subsection (b), in our judgment, makes it impracticable or inadvisable to proceed with our purchase of the Notes as principal pursuant to this Agreement; or
(c) Subsequent to the execution and delivery of this Agreement, (i) any downgrading shall have occurred in the rating accorded the Company's debt securities by Moody's Investors Service, Inc. and Standard & Poor's Rating Services or (ii) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
[Insert the following if more than one Agent is purchasing Notes --][If any one or more of us shall fail to purchase and pay for all of the Notes agreed to be purchased by such party or parties hereunder (each, a "defaulting party" and collectively, the "defaulting parties") and such failure to purchase shall constitute a default in the performance of our obligations under this Agreement, the remaining undersigned (each, a "non-defaulting party" and collectively, the
"non-defaulting parties") shall be obligated severally to take up and pay for (in the respective proportions that the principal amount of Notes set forth opposite our names in the table above bears to the aggregate principal amount of Notes set forth opposite the names of the non-defaulting parties) the Notes which the defaulting parties agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Notes which the defaulting parties agreed but failed to purchase shall exceed 10% of the aggregate principal amount of the Notes, the non-defaulting parties shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Notes, and if such non-defaulting parties do not purchase all the Notes, this Agreement will terminate without liability to any non-defaulting parties or the Company. In the event of a default by any of us as set forth in this paragraph, the Settlement Date shall be postponed for such period, not exceeding seven days, as shall determine in order that the required changes in the Registration Statement and the final Prospectus or in any other documents or arrangements may be effected. Nothing herein contained shall relieve any defaulting party of its liability, if any, to the Company and any non-defaulting party for damages occasioned by its default hereunder.]
[signature page follows]
This Agreement shall be governed by and construed in accordance with the laws of New York (without giving effect to the principles of choice of law).
[Insert name of Agent(s)]
By: ________________________________ Name:
Title:
Accepted: __________, ____
Maytag Corporation
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
EXHIBIT 4.1
MAYTAG CORPORATION
TO
BANK ONE, NATIONAL ASSOCIATION
Trustee Under Indenture Dated as of June 15, 1987
Ninth Supplemental Indenture
Dated as of October 30, 2001
Providing for issuance of Medium-Term Notes, Series E,
Due from Nine Months to 30 Years from Date of Issue
THIS NINTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as of the 30th day of October, 2001 between Maytag Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), having its principal office at Newton, Iowa, and Bank One, National Association, a national banking association duly organized and existing under the laws of the United States of America (the "Trustee"), Trustee under the Indenture dated as of June 15, 1987 between the Company and the Trustee (the "Original Indenture").
W I T N E S S E T H:
WHEREAS, the Original Indenture provides for the issuance from time to time thereunder, in series, of debt securities of the Company to provide funds for its corporate purposes; and
WHEREAS, the Company desires, by this Supplemental Indenture, to create a series of Securities to be issuable under the Original Indenture and to be known as the Company's Medium-Term Notes, Series E, Due from Nine months to 30 Years from Date of Issue (the "Medium Term Notes"), the Medium Term Notes to be limited in aggregate initial offering price as set forth herein and the terms and provisions thereof to be as hereinafter set forth; and
WHEREAS, all things necessary to make the Medium Term Notes, when executed by the Company and authenticated and delivered by the Trustee and duly issued by the Company, the valid obligations of the Company, and to make this Supplemental Indenture a valid agreement of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Medium Term Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of such Holders, as follows:
Section 1. Defined Terms. All terms used in this Supplemental Indenture which are defined in the Original Indenture have the meanings assigned to them in the Original Indenture, except that, for purposes of the Supplemental Indenture and the Medium Term Notes, the term "Business Day" shall mean, unless otherwise indicated in the terms of the particular Medium Term Note, any Monday, Tuesday, Wednesday, Thursday or Friday (a "Weekday") that in The City of New York is not a day on which banking institutions are authorized or obligated by law, regulation or executive order to close; provided, however, that with respect to Medium Term Notes that are denominated or payable in a currency other than U.S. dollars, such Weekday
is also not a day on which commercial banks are authorized or obligated by law, regulation or executive order to close in the Principal Financial Center (as defined in Exhibit A) of the country issuing the Specified Currency (as defined in Exhibit A) (or, if the Specified Currency is euro, such Weekday is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open); provided, further, that with respect to Medium Term Notes as to which LIBOR (as defined in Exhibit B) is the applicable Interest Rate Basis (as defined in Exhibit B), such Weekday is also a London Business Day (as defined in Exhibit B).
Section 2. Designation and Terms of the Medium Term Notes. There is hereby created by this Supplemental Indenture a series of Securities to be known and designated as the "Medium-Term Notes, Series E, Due from Nine Months to 30 Years from Date of Issue" of the Company. The Medium Term Notes shall be limited to $500,000,000 in aggregate initial offering price.
Each Medium Term Note shall have the particular terms (which need not be substantially identical to the terms of any other Medium Term Notes) established in accordance with or as contemplated by this Section 2. Each fixed rate Medium Term Note ("Fixed Rate Note") shall be in substantially the form attached as Exhibit A hereto, and each floating rate Medium Term Note ("Floating Rate Note") shall be in substantially the form attached as Exhibit B hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Original Indenture and this Supplemental Indenture.
Each of the Chairman of the Board, the President, the Chief Financial Officer and the Treasurer of the Company, or any of them individually (each an "Authorized Officer"), may,
at any time and from time to time, on behalf of the Company, authorize the issuance of Medium Term Notes and in connection therewith establish, or, if all of the Medium Term Notes of such series are not originally issued at one time, to the extent deemed appropriate, prescribe the manner of determining within any limitations established by such Authorized Officer (subject in either case to the limitations set forth in this Supplemental Indenture and the Original Indenture), the following:
(1) the currency in which the Medium Term Notes will be denominated;
(2) the date or dates on which the principal of the Medium Term Notes is payable;
(3) the rate or rates (or method by which determined) at which the Medium Term Notes shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Dates for the interest payable on any Interest Payment Date;
(4) the place or places where the principal of (and premium, if any) and interest on Medium Term Notes shall be payable;
(5) the period or periods within which, the price or prices at which and the terms and conditions upon which Medium Term Notes may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;
(6) the obligation, if any, of the Company to redeem or purchase Medium Term Notes pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Medium Term Notes shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(7) if other than denominations of $1,000 and integral multiples of $1,000 in excess thereof the denominations in which Medium Term Notes shall be issuable;
(8) if other than the principal amount thereof, the portion of the principal amount of Medium Term Notes which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 of the Original Indenture;
(9) additional Events of Default with respect to the Medium Term Notes, if any, other than those set forth in the Original Indenture;
(10) whether the Medium Term Notes shall be issued in whole or in part in the form of one or more Global Notes (as defined in Section 4 hereof) and, in such case, the Depositary for such Global Note or Notes, which Depositary must be a clearing agency registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(11) any other terms of the Medium Term Notes (which terms shall not be inconsistent with the provisions of this Supplemental Indenture or the Original Indenture).
In connection with the Medium Term Notes, the officers of the Company specified in the Original Indenture may execute and deliver one or more Officers' Certificates setting forth, or, if all of the Medium Term Notes are not originally issued at one time, to the extent deemed appropriate describing the manner of determining, the foregoing terms of the Medium Term Notes, established or prescribed, as the case may be, in accordance with the foregoing.
Each Medium Term Note will be dated and issued as of the date of its authentication by the Trustee. Each Medium Term Note shall also bear an Original Issue Date (as hereinafter defined) which, with respect to any Medium Term Note (or any portion thereof), shall mean the date of its original issue, as specified in such Medium Term Note (the "Original Issue Date"), and such Original Issue Date shall remain the same if such Medium Term Note is subsequently issued upon transfer, exchange, or substitution of such Medium Term Note regardless of its date of authentication. Principal on any Medium Term Note shall become due and payable from nine months to 30 years from the Original Issue Date of such Medium Term Notes, as specified in such Medium Term Note.
The Places of Payment for the principal of and premium, if any, with respect to Medium Term Notes shall be the City of Chicago, Illinois and The City of New York. Interest, if any, on the Medium Term Notes will be paid by check, draft or wire, as specified in the terms thereof. The Trustee shall be the paying agent ("Paying Agent") for the Medium Term Notes.
Payments of principal of (and premium, if any) and interest on each Medium Term Note will be made in Dollars or such other currency as shall be specified in the particular Medium Term Note. If specified in a particular Medium Term Note, the amount of principal payable on such Medium Term Note will be determined by reference to an index or formula described therein.
Unless otherwise indicated in the terms of a particular Medium Term Note, the "Regular Record Date" with respect to any Floating Rate Note shall be the date 15 calendar days prior to each Interest Payment Date, whether or not such date shall be a Business Day, and the "Regular Record Date" with respect to any Fixed Rate Note shall be the February 1 and August 1 next preceding the February 15 and August 15 Interest Payment Dates.
Unless otherwise indicated in the terms of a particular Medium Term Note and except as provided below, the Interest Payment Dates for Floating Rate Notes will be, in the case of Floating Rate Notes that reset daily, weekly or monthly, the third Wednesday of each month or the third Wednesday of March, June, September and December of each year, as specified on the face thereof; in the case of Floating Rate Notes that reset quarterly, the third Wednesday of March, June, September and December of each year, as specified on the face thereof; in the case of Floating Rate Notes that reset semi-annually, the third Wednesday of each of two months of each year, as specified on the face thereof; and in the case of Floating Rate Notes that reset annually, the third Wednesday of one month of each year, as specified on the face thereof, and in each case, at Maturity.
Notwithstanding the provisions of Section 303 of the Original Indenture, it shall not be necessary to deliver the documents described therein at or prior to the time of authentication of each Medium Term Note, if such documents are delivered at or prior to the
authentication upon original issuance of the first Medium Term Note created by this Supplemental Indenture.
Section 3. Redemption of Medium Term Notes. Each Medium Term Note may be redeemed by the Company in whole or in part if so provided pursuant to the terms of such Medium Term Note issued by the Company. Notwithstanding the provisions of Section 1103 of the Original Indenture, the Company may redeem any Medium Term Note which by its terms is redeemable prior to Stated Maturity without also redeeming any other Medium Term Note which is redeemable prior to Stated Maturity. The selection of Medium Term Notes to be redeemed prior to Stated Maturity shall be in the sole discretion of the Company.
Section 4. Global Notes. For the purposes of this Section 4, the term "Agent Member" means a member of, or participant in, a Depositary; the term "Depositary" means, with respect to Medium Term Notes issuable or issued in whole or in part in the form of one or more Global Notes, the Person designated as Depositary by the Company pursuant to Section 2 hereof, and if at any time there is more than one such Person, "Depositary" as used with respect to the Medium Term Notes shall mean the respective Depositary with respect to the particular Medium Term Notes; and the term "Global Note" means a global certificate evidencing all or part of the Medium Term Notes issued to the Depositary and registered in the name of such Depositary or its nominee.
Notwithstanding Section 305 of the Original Indenture, except as otherwise specified as contemplated by Section 2 hereof, any Global Note shall be exchangeable for Medium Term Notes in certificated form only as provided in this paragraph. A Global Note shall be exchangeable for Medium Term Notes in certificated form pursuant to this Section if (x) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for
such Global Note and a successor depository is not appointed by the Company
within 90 days after the Company receives such notice, or if the Depositary
ceases to be a clearing agency registered pursuant to the provisions of Section
17A of the Exchange Act, (y) the Company in its sole discretion determines not
to have one or more Medium Term Notes represented by one or more Global Notes or
(z) an Event of Default with respect to the Medium Term Notes represented by
such Global Note shall have occurred and be continuing. Any Global Note that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Medium
Term Notes in certificated form, bearing interest (if any) at the same rate or
pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Stated Maturity and other terms and of differing
denominations aggregating a like amount. Such definitive Medium Term Notes shall
be registered in the names of the owners of the beneficial interests in such
Global Note as such names are from time to time provided by the relevant
participants in the Depositary holding such Global Note (as such participants
are identified from time to time by such Depositary).
If at any time the Depositary for the Medium Term Notes notifies the Company that it is unwilling or unable to continue as Depositary for the Medium Term Notes or if at any time the Depositary for the Medium Term Notes shall no longer be eligible under this Section, the Company shall appoint a successor Depositary with respect to the Medium Term Notes. If a successor Depositary for the Medium Term Notes is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Medium Term Notes in certificated form, will authenticate and deliver Medium Term Notes in certificated form in an aggregate principal amount equal to the principal amount
of the Global Note or Notes representing such Medium Term Notes in exchange for such Global Note or Notes.
No Global Note may be transferred except as a whole by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor of the Depositary or a nominee of such successor. Except as provided above, owners solely of beneficial interests in a Global Note shall not be entitled to receive physical delivery of Medium Term Notes in certificated form and will not be considered the Holders thereof for any purpose under the Original Indenture or this Supplemental Indenture.
Any Global Note that is exchangeable pursuant to this Section 4 shall be exchangeable for Medium Term Notes issuable in denominations of $1,000 and integral multiples of $1,000 in excess thereof (in the case of Dollar denominated Medium Term Notes) or the denominations described in the Medium Term Note (in the case of Medium Term Notes denominated in a foreign currency) and registered in such names as the Depositary that is the Holder of such Global Note shall direct.
In the event that a Global Note is surrendered for redemption in part pursuant to the Original Indenture, the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Note, without service charge, a new Global Note in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Note so surrendered.
The Agent Members shall have no rights under the Original Indenture or this Supplemental Indenture with respect to any Global Note held on their behalf by a Depositary, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any Agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Medium Term Note, including without limitation the granting of proxies or other authorization of participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Original Indenture.
Section 5. Determination of Outstanding Medium Term Notes. In determining whether the Holders of the requisite principal amount of the Outstanding Medium Term Notes have given any request, demand, authorization, direction, notice, consent or waiver under the Original Indenture, the principal amount of a Medium Term Note shall be the Dollar or other Specified Currency amount, determined on the date of original issuance of such Medium Term Note, of the initial offering price (or, in the case of a Medium Term Note which is an Original Issue Discount Security, the Dollar or other Specified Currency equivalent on the date of the original issuance of such Note of the amount of principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of the Original Indenture) of such Medium Term Note.
T E S T I M O N I U M
This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
MAYTAG CORPORATION
By: /s/ Steven H. Wood
-------------------
Name: Steven H. Wood
Title: Executive Vice President and
Chief Financial Officer
ATTEST:
/s/ Scott R. Williams
---------------------
(CORPORATE SEAL)
|
BANK ONE, NATIONAL ASSOCIATION
By: /s/ Mietka Collins
------------------
Name: Mietka Collins
Title: Account Representative
ATTEST:
/s/ R. Johnson
--------------
(CORPORATE SEAL)
|
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On this 30th day of October, 2001, before me personally came Mietka Collins to me known, who, being by me duly sworn, did depose and say that such person is Account Representative of Bank One, National Association, one of the corporations described in and which executed the above instrument; that such person knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was affixed by the authority of the Board of Directors of said corporation; and that such person signed such person's name thereto by like authority.
/s/ Joanne J. Salerno --------------------- Notary Public My Commission expires: 6/7/03 ------ |
[Notary Seal]
STATE OF IOWA )
) ss:
COUNTY OF JASPER )
|
On this 30th day of October, 2001 before me personally came Steven H. Wood, to me known, who being by me duly sworn, did depose and say that he is EVP & CFO of Maytag Corporation, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was affixed by the authority of the Board of Directors of said corporation; and that he signed his name thereto by like authority.
/s/ Judy K. Petersen -------------------- Notary Public My Commission expires: July 24, 2004 ------------- |
[Notary Seal]
MAYTAG CORPORATION
CUSIP NO. _______________ PRINCIPAL AMOUNT: $ ________
REGISTERED NO. FX ___
MEDIUM-TERM NOTE, SERIES E
Due from Nine Months to 30 Years from Date of Issue
If this Note is a Book-Entry Note, the registered owner of this Note (as indicated below) is The Depository Trust Company (the "Depositary") or a nominee of the Depositary, and the following legend is applicable: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co., or to such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
The following summary of terms is subject to the information set forth on the reverse hereof:
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: Yes No
INITIAL REDEMPTION DATE:
STATED MATURITY:
INITIAL REDEMPTION PERCENTAGE:
SPECIFIED CURRENCY: United States Dollars ANNUAL PERCENTAGE
Other: ___________ REDEMPTION REDUCTION:
EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATIONS
(If other than $1,000 and REDEMPTION PRICE:
integral multiples of $1,000
in excess thereof):
FORM: BOOK-ENTRY
CERTIFICATED
PAYING AGENT (If other OPTION TO ELECT REPAYMENT: Yes No
than the Trustee):
INTEREST RATE: OPTIONAL REPAYMENT DATE(S):
INTEREST PAYMENT DATES: OPTIONAL REPAYMENT PRICE(S)
REGULAR RECORD DATES: OPTIONAL RESET: Yes No
OVERDUE RATE: OPTIONAL RESET DATE[S]
DEPOSITARY: OPTIONAL EXTENSIONS OF
ORIGINAL MATURITY: Yes No
SINKING FUND: YES NO EXTENSION PERIOD:
AMORTIZING NOTE: YES NO NUMBER OF EXTENSION PERIODS:
FINAL MATURITY:
OTHER PROVISIONS:
ANNEX ATTACHED (and Incorporated
by reference herein): Yes No
|
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
**
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
aggregate principal amount):
YES NO
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID:
**
|
MAYTAG CORPORATION, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to
___________________________________________________________ or registered
assigns, the principal sum specified above on the Stated Maturity shown above,
and to pay interest thereon from and including the Original Issue Date shown
above or from and including the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for, as
the case may be.
Interest will be paid on the Interest Payment Date or Dates specified above, commencing with the first such Interest Payment Date next succeeding the Original Issue Date shown above (except as provided below), at the rate per annum specified above, until the principal hereof is paid or made available for payment and on the Stated Maturity, and, if specified above, interest will accrue on any overdue principal and on any overdue installment of interest (to the extent such interest is legally enforceable) at the Overdue Rate per annum specified above. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Security Register at the close of business on the Regular Record Date specified above next preceding such Interest Payment Date. The first payment of interest on any Note originally issued between a Regular Record Date and the next Interest Payment Date will be made on the Interest Payment Date following the next succeeding Regular Record Date to the Holder on such next succeeding Regular Record Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof is to be given to Holders of Notes not less than 10 calendar days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
If this Note is a Book-Entry Note as specified above, while this Note is represented by one or more Book-Entry Notes registered in the name of the Depositary or its nominee, the Company will cause payments of principal of, premium, if any, and interest on such Book-Entry Notes to be made to the Depositary or its nominee, as the case may be, by wire transfer to the extent, in the funds and in the manner required by agreements with, or regulations or procedures prescribed from time to time by, the Depositary or its nominee, and otherwise in accordance with such agreements, regulations and procedures. If this Note is a Book-Entry Note as specified above, the following legend is applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of interest and, if this Note is an Amortizing Note as specified above, principal on this Note (other than interest, and if this Note is an Amortizing Note, principal payable at Stated Maturity) will be made by mailing a check to the Holder at the address of the Holder appearing in the Security Register on the applicable Regular Record Date. Notwithstanding the foregoing, at the option of the Company, all payments of interest and, if this is an Amortizing Note, principal on this Note may be made by wire transfer of immediately available funds to an account designated by the Holder at a bank located in the United States.
The Company will pay any administrative costs imposed by banks in connection with making payments by wire transfer, but not any tax, assessment or governmental charge imposed upon the Holder of this Note. If this Note is a certificated Note as specified above, payment of the principal, premium, if any, and interest payable at Maturity in respect of this Note will be made in immediately available funds upon surrender of this Note accompanied by wire instructions at the Corporate Trust Office of the Trustee in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York; provided, that, this Note is presented to the Trustee in time for the Trustee to make such payment in such funds in accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, or its successor as Trustee, or its Authenticating Agent, by manual signature of an authorized signatory, this Note will not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MAYTAG CORPORATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture
By:___________________________
Its:__________________________
BANK ONE, NATIONAL ASSOCIATION, Attest:_______________________
as Trustee Its:__________________________
By:______________________________
Authorized Officer
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[Reverse of Note]
MAYTAG CORPORATION
MEDIUM-TERM NOTE, SERIES E
SECTION 1. General. This Note is one of a duly authorized issue of Securities of the Company (herein called the "Notes"), issued and to be issued in one or more series under an Indenture, dated as of June 15, 1987, as supplemented from time to time (herein called the "Indenture"), between the Company and Bank One, National Association, formerly known as The First National Bank of Chicago, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Note is one of the Securities of the series designated on the face hereof. The Notes may bear different dates, mature at different times, bear interest at different rates, be subject to different redemption provisions, if any, may be subject to different sinking funds, purchase or analogous funds, if any, and may otherwise vary, all as provided in the Indenture.
SECTION 2. Payments. Interest on this Note will be payable on the Interest Payment Date or Interest Payment Dates as specified on the face hereof and, in either case, at Maturity.
Unless otherwise specified on the face hereof, payments on this Note with respect to any Interest Payment Date or Maturity will include interest accrued from and including the Original Issue Date, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, to but excluding such Interest Payment Date or Maturity. Interest on this Note will be computed and paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is an Amortizing Note, payments with respect to this Note will be applied first to interest due and payable hereon and then to the reduction of the unpaid principal amount hereof. If this Note is an Amortizing Note, a table setting forth repayment information in respect to this Note will be provided to the original purchaser hereof and will be available, upon request, to subsequent Holders.
All percentages resulting from any calculation with respect to this Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with five one-millionths of a percentage point being rounded upward) and all amounts used in or resulting from any such calculation with respect to this Note will be rounded, in the case of United States dollars, to the nearest cent or, in the case of a foreign currency, to the nearest unit (with one-half cent or unit being rounded upwards).
"Business Day" means, unless otherwise specified on the face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is not a day on which banking institutions are authorized or obligated by law, regulation or executive order to close (a "Regular Weekday"); provided, however, that with respect to Notes denominated in a foreign currency, such Regular Weekday is also not a day on which commercial banks are authorized or obligated by law, regulation or executive order to close in the Principal Financial Center (as defined below) of the country issuing the Specified Currency (or, if the Specified Currency is euro, such Regular Weekday is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open). "Principal Financial Center" means the capital city of the country issuing the currency in which the Notes are denominated, except that with respect to United States dollars and euros, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sidney and (solely in the case of the Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London, Johannesburg and Zurich, respectively. If the Maturity for this Note falls on a day that is not a Business Day, payment of principal, premium, if any, and interest to be made on such Regular Weekday with respect to this Note will be made on the next day that is a Business Day with the same force and effect as if made on the due date, and no additional interest will be payable on the date of payment for the period from and after the due date as a result of such delayed payment.
The Company is obligated to make payment of principal, premium, if any, and interest in respect of this Note in the Specified Currency (or, if the Specified Currency is not at the time of such payment legal tender for the payment of public and private debts, in such other coin or currency of the country which issued the Specified Currency as at the time of such payment is legal tender for the payment of such debts). If the Specified Currency is other than United States dollars, any such amounts so payable by the Company will be converted by the Exchange Rate Agent specified above into United States dollars for payment to the Holder of this Note; provided, however, that the Holder of this Note may elect to receive such amounts in such Specified Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the Holder of this Note shall not have duly made an election to receive all or a specified portion of any payment of principal, premium, if any, and/or interest in respect of this Note in the Specified Currency, any United States dollar amount to be received by the Holder of this Note will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the Company for the purchase by the quoting dealer of the Specified Currency for United States dollars for settlement on such payment date in the aggregate amount of the Specified Currency payable to all Holders of Notes scheduled to receive United States dollar payments and at which the applicable dealer commits to execute a contract. All currency exchange costs will be borne by the Holder of this Note by deductions from such payments. If three such bid quotations are not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the Holder of this Note may elect to receive all or a specified portion of any payment of principal, premium, if any, and/or interest in respect of this Note in the Specified Currency by submitting a written request for such payment to the Trustee at its Corporate Trust Office located in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York on or prior to the applicable Record Date or at least 15 calendar days prior to Maturity, as the case may be. Such written request may be mailed or hand delivered or sent by cable, telex or other form of facsimile transmission. The Holder of this Note may elect to receive all or a specified portion of all future payments in the Specified Currency in respect of such principal, premium, if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of any such revocation must be received by the Trustee on or prior to the applicable Record Date or at least 15 calendar days prior to Maturity, as the case may be.
If the Specified Currency is other than United States dollars and if the Specified Currency is not available due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to the Holder of this Note by making such payment in United States dollars on the basis of the Market Exchange Rate (as defined below) on the second Business Day prior to such payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange Rate" for the Specified Currency means the noon dollar buying rate in The City of New York for cable transfers for the Specified Currency as certified for customs purposes by (or if not so certified, as otherwise determined by) the Federal Reserve Bank of New York. Any payment made under such circumstances in United States dollars will not constitute an Event of Default (as defined in the Indenture).
All determinations referred to above made by the Company or its agent (including the Exchange Rate Agent) shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on the Holder of this Note.
SECTION 3. Redemption. This Note will be redeemable at the option of the Company prior to the Stated Maturity only if an Initial Redemption Date is specified on the face hereof. If so specified, this Note will be subject to redemption at the option of the Company on any date on and after such Initial Redemption Date in whole or from time to time in part in increments of $1,000 or the minimum denomination, if any, specified on the face hereof (provided, that, any remaining principal amount hereof shall be at least $1,000 or such minimum denomination), at the Redemption Price specified on the face hereof, plus accrued and unpaid interest to but excluding the date of redemption, but payments due with respect to this Note prior to the date of redemption will be payable to the Holder of this Note of record at the close of business on the relevant Regular Record Date specified on the face hereof, all as provided in the Indenture. The Company may exercise such option by causing the Trustee to mail a notice of such redemption, at least 30 but not more than 60 calendar days prior to the date of redemption, in accordance with the provisions of the Indenture. In the event of redemption of this Note in part only, this Note will be canceled and a new Note or Notes representing the unredeemed portion hereof will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note will be repayable, in whole or in part, prior to Stated Maturity at the option of the Holder on the Optional Repayment Date or Dates specified on the face hereof at the Optional Repayment Price or Prices specified on the face hereof, plus accrued and unpaid interest to but excluding the date of repayment. In order for this Note to be repaid prior to Stated Maturity, the Paying Agent must receive at least 30 but not more than 45 calendar days prior to an Optional Repayment Date (i) this Note with the form below entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex, facsimile transmission or letter (first class, postage prepaid) from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the Holder of this Note, the principal amount of this Note, the principal amount of this Note to be repaid, the certificate number or a description of the tenor and terms of this Note, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note with the form below entitled "Option to Elect Repayment" duly completed will be received by the Paying Agent not later than five Business Days after the date of such telegram, telex, facsimile transmission or letter. If the procedure described in clause (ii) of the preceding sentence is followed, this Note with such form duly completed must be received by the Paying Agent by such fifth Business Day. Exercise of the repayment option by the Holder of this Note will be irrevocable, except that a Holder who has tendered this Note for repayment may revoke such tender for repayment by written notice to the Paying Agent received prior to the close of business, on the tenth calendar day prior to the Optional Repayment Date. The repayment option may be exercised by the Holder of this Note for less than the entire principal amount of this Note; provided, that, the principal amount of this Note remaining outstanding after such repayment is an authorized denomination. Upon such partial repayment this Note will be cancelled and a new Note or Notes for the remaining principal amount hereof will be issued in the name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof, while this Note is represented by one or more Book-Entry Notes registered in the name of the Depositary or its nominee, the option for repayment may be exercised by a participant that has an account with the Depositary, on behalf of the beneficial owner of this Note, by delivering a written notice substantially similar to the form below entitled "Option to Elect Repayment" duly completed to the Trustee at its Corporate Trust Office (or such other address of which the Company will from time to time notify the Holders), at least 30 but not more than 60 calendar days prior to an Optional Repayment Date. A notice of election from a participant on behalf of the beneficial owner of this Note to exercise the option to have this Note repaid must be received by the Trustee prior to 5:00 P.M., New York City time, on the last day for giving such notice. In order to ensure that a notice is received by the Trustee on a particular day, the beneficial owner of this Note must so direct the applicable participant before such participant's deadline for accepting instructions for that day. Different firms may have different deadlines for accepting instructions from their customers. Accordingly, the beneficial owner of this Note should consult the participant through which such beneficial owner owns its interest herein for the deadline for such participant. All notices shall be executed by a duly authorized officer of such participant (with signatures guaranteed) and will be irrevocable. In addition, the beneficial owner of this Note shall effect delivery at the time such notice of election is given to the Depositary by causing the applicable participant to transfer such beneficial owner's interest in this Note, on the Depositary's records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face hereof, the
interest rate specified on the face hereof may be reset by the Company on the
Optional Reset Date or Dates specified on the face hereof. The Company may
exercise such option by notifying the Trustee of such exercise at least 45 but
not more than 60 calendar days prior to an Optional Reset Date. If the Company
so notifies the Trustee of such exercise, not later than 40 calendar days prior
to such Optional Reset Date, the Trustee will send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of this Note a notice (the "Reset Notice") indicating (I) that the
Company has elected to reset the interest rate, (ii) such new interest rate and
(iii) the provisions, if any, for redemption during the period from such
Optional Reset Date, to the Stated Maturity of this Note (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an Optional Reset Date, the Company may, at its option, revoke the interest rate provided for in the Reset Notice and establish a higher interest rate for the Subsequent Interest Period commencing on such Optional Reset Date by causing the Trustee to send by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) notice of such higher interest rate to the Holder of this Note. Such notice will be irrevocable. All Notes with respect to which the interest rate is reset on an Optional Reset Date to a higher interest rate will bear such higher interest rate, whether or not tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Reset Date to reset the interest rate of this Note, the Holder of this Note will have the option to elect repayment of this Note, in whole but not in part, by the Company on such Optional Reset Date at a price equal to the principal amount hereof plus accrued and unpaid interest to but excluding such Optional Reset Date. In order for this Note to be so repaid on an Optional Reset Date, the Holder must follow the procedures specified under Section 4 for optional repayment, except that the period for deliver of this Note or notification to the Trustee will be at least 25 but not more than 35 calendar days prior to such Optional Reset Date. If the Holder has tendered his Note for repayment following receipt of a Reset Notice, the Holder may revoke such tender for repayment by written notice to the Trustee received prior to the close of business, on the tenth calendar day prior to such Optional Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face hereof, the Stated Maturity of this Note may be extended at the option of the Company for one or more periods of one or more years, as specified on the face hereof (each an "Extension Period"), up to but not beyond the date (the "Final Maturity") specified on the face hereof. The Company may exercise such option with respect to this Note by notifying the Trustee of such exercise at least 45 but not more than 60 calendar days prior to the Stated Maturity of this Note in effect prior to the exercise of such option (the "Original Maturity") or, if the Maturity of this Note has already been extended, prior to the Maturity then in effect (an "Extended Maturity"). If the Company so notifies the Trustee of such exercise, the Trustee will send, not later than 40 calendar days prior to the Original Maturity or an Extended Maturity (each a "Maturity Date"), by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) to the Holder of this Note a notice (the "Extension Notice") relating to such Extension Period indicating (i) that the Company has elected to extend the Original Maturity or Extended Maturity, as applicable, of this Note, (ii) the new Maturity Date, (iii) the interest rate applicable to such Extension Period and (iv) the provisions, if any, for redemption during such Extension Period, including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during such Extension Period. Upon the Trustee's sending of the Extension Notice, the Maturity Date of this Note will be extended automatically and, except as modified by the Extension Notice and as described in the next two paragraphs, this Note will have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to the Maturity Date of this Note which was in effect prior to the mailing of an Extension Notice, the Company may, at its option, revoke the interest rate provided for in the Extension Note and establish a higher interest rate for the Extension Period by causing the Trustee to send by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) notice of such higher interest rate to the Holder of this Note. Such notice will be irrevocable. All Notes with respect to which the Maturity Date is extended will bear such higher interest rate for the Extension Period, whether or not tendered for repayment as provided in the next paragraph.
If the Company extends the Maturity Date of this Note, the Holder will have the option to elect repayment of this Note, in whole but not in part by the Company on the Maturity Date in effect prior to the mailing of the Extension Notice at a price equal to the principal amount hereof, plus accrued and unpaid interest to but excluding such date. In order for this Note to be so repaid on the Maturity Date in effect prior to the mailing of the Extension Notice, the Holder of this Note must follow the procedures specified under Section 4 for optional repayment, except that the period for delivery of this Note or notification to the Trustee will be at least 25 but not more than 35 calendar days prior to the Maturity Date in effect prior to the mailing of the Extension Notice. If the Holder has tendered this Note for repayment following receipt of an Extension Notice, the Holder may revoke such tender for repayment by written notice to the Trustee received prior to 5:00 p.m., New York City time, on the tenth calendar day prior to the Maturity Date in effect prior to the mailing of the Extension Notice.
SECTION 7. Sinking Fund. This Note is not subject to a sinking fund unless otherwise specified on the face hereof.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything herein to the contrary, if this Note is an Original Issue Discount Note as specified on the face hereof, the amount payable in the event the principal amount hereof is declared to be due and payable immediately by reason of an Event of Default or in the event of redemption or repayment hereof prior to the Stated Maturity hereof, in lieu of the principal amount due at the Stated Maturity hereof, will be the Amortized Face Amount of this Note as of the date of declaration, redemption or repayment, as the case may be. The "Amortized Face Amount" of this Note will be the amount equal to (a) the principal amount of this Note multiplied by the Issue Price specified on the face hereof plus (b) the portion of the difference between the dollar amount determined pursuant to the preceding clause (a) and the principal amount hereof that has accreted at the Yield to Maturity specified on the face hereof (computed in accordance with generally accepted United States bond yield computation principles) to such date of declaration, redemption or repayment but in no event will the Amortized Face Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, that notwithstanding anything herein to the contrary, if this Note is an Original Issue Discount Note, the amount so declared to be due and payable will be the Amortized Face Amount of this Note as of the date of such declaration as specified under Section 8.
SECTION 10. Modification or Waiver; Obligation of the Company Absolute. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than 66K% in principal amount of the Outstanding Securities of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities of each series, on behalf of the Holders of all Securities of such series, to waive, with respect to the Securities of such series, compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note will be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture will alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest on this Note at the times, places and rates herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Note and (b) certain restrictive covenants and the related Events of Default upon compliance by the Company with certain conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise specified on the face hereof, the Notes of this series are issuable only in global or certificated registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein specified and to the limitations described below, if applicable, Notes of this series are exchangeable for Notes of this series of like aggregate principal amount and like Stated Maturity and with like terms and conditions of a different authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and subject to certain limitations therein specified and to the limitations described below, if applicable, the transfer of this Note is registerable in the Security Register upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for that purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar (which will initially be the Trustee at its Corporate Trust Office located in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York), duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series with like terms and conditions of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this Note is exchangeable for certificated Notes only upon the terms and conditions provided in the Ninth Supplemental Indenture dated as of October 30, 2001. Except as provided in the Indenture, owners of beneficial interests in this Book-Entry Note will not be entitled to receive physical delivery of Notes in certificated registered form and will not be considered the Holders thereof for any purpose under the Indenture.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing hereon, and none of the Company, the Trustee or any such agent will be affected by notice to the contrary.
SECTION 15. Governing Law. The Indenture and the Notes will be governed by and construed in accordance with the laws of the State of Illinois.
SECTION 16. Defined Terms. All terms used in this Note which are defined in the Indenture will have the meanings assigned to them in the Indenture unless otherwise defined in the Ninth Supplemental Indenture dated as of October 30, 2001 or herein; and all references in the Indenture to "Security" or "Securities" will be deemed to include the Notes.
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the Company repay the principal amount of this Note or portion hereof below designated at the applicable Optional Repayment Price indicated on the face hereof plus accrued and unpaid interest to but excluding the date of repayment pursuant to Section 4 of this Note.
Dated:
----------------------------- ----------------------------------------
Signature
Sign exactly as name appears on the
front of this Note.
Indicate address where check is to be
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sent, if repaid:
SOCIAL SECURITY OR OTHER TAXPAYER ID
NUMBER
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, will be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT Custodian
========================================================
(Cust) (Minor)
Under Uniform Gifts to Minors Act
=========================================================
(State)
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Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ________________________________attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
Dated:
------------------ -------------------------------
Signature
Sign exactly as name appears on
the front of this Note
[SIGNATURE MUST BE GUARANTEED by
a commercial bank, a trust
company or by a member of the New
York Stock Exchange]
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NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
MAYTAG CORPORATION
CUSIP NO. _______________ PRINCIPAL AMOUNT: $ _________
REGISTERED NO. FL ___
MEDIUM-TERM NOTE, SERIES E
Due from Nine Months to 30 Years from Date of Issue
If this Note is a Book-Entry Note, the registered owner of this Note (as indicated below) is The Depository Trust Company (the "Depositary") or a nominee of the Depositary, and the following legend is applicable: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co., or to such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
The following summary of terms is subject to the information set forth on the reverse hereof:
ORIGINAL ISSUE:
STATED MATURITY:
SPECIFIED CURRENCY: United States Dollars
Other: ___________ CALCULATION AGENT:
EXCHANGE RATE AGENT:
AUTHORIZED DENOMINATIONS
(If other than $1,000 and
integral multiples of $1,000
in excess thereof):
FORM: BOOK-ENTRY AMORTIZING NOTE: Yes No
CERTIFICATED
PAYING AGENT (If other OPTIONAL REDEMPTION: Yes No
than the Trustee):
INTEREST RATE BASIS: INITIAL REDEMPTION DATE:
INDEX MATURITY: INITIAL REDEMPTION
PERCENTAGE:
INTEREST PAYMENT DATES: ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
REGULAR RECORD DATES:
REDEMPTION PRICE:
INITIAL INTEREST RATE:
OPTION TO ELECT REPAYMENT: Yes No
MAXIMUM INTEREST RATE:
OPTIONAL REPAYMENT DATE(S):
MINIMUM INTEREST RATE:
OPTIONAL REPAYMENT PRICE(S): Yes No
SPREAD:
OPTIONAL RESET:
SPREAD MULTIPLIER:
OPTIONAL RESET DATE(S): Yes No
RESET PERIOD:
OPTIONAL EXTENSIONS OF
INTEREST RESET DATES: ORIGINAL MATURITY:
INTEREST DETERMINATION DATES: EXTENSION PERIOD:
NUMBER OF EXTENSION PERIODS:
OVERDUE RATE: FINAL MATURITY: Yes No
OTHER PROVISIONS: Yes No
SINKING FUND:
ANNEX ATTACHED (and Incorporated
by reference herein):
|
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE
(expressed as a percentage
of aggregate principal
amount):
Yes No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID:
MAYTAG CORPORATION, a corporation duly organized and existing under the laws of Delaware (herein called the "Company," which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to ___________________________________________ _________ or registered assigns, the principal sum specified above on the Stated Maturity shown above, and to pay interest thereon from and including the Original Issue Date shown above or from and including the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates specified above, at the rate per annum determined in accordance with the provisions on the reverse hereof, depending on the Interest Rate Basis, the Spread, if any, and/or the Spread Multiplier, if any, specified above, commencing with the first such Interest Payment Date next succeeding the Original Issue Date shown above (except as provided below) until the principal hereof is paid or made available for payment and on the Stated Maturity, and, if specified above, interest will accrue on any overdue principal and on any overdue installment of interest (to the extent such interest is legally enforceable) at the Overdue Rate per annum specified above. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Security Register at the close of business on the Regular Record Date specified above next preceding such Interest Payment Date. The first payment of interest on any Note originally issued between a Regular Record Date and the next Interest Payment Date will be made on the Interest Payment Date following the next succeeding Regular Record Date to the Holder on such next succeeding Regular Record Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof is to be given to Holders of Notes not less than 10 calendar days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
If this Note is a Book-Entry Note as specified above, while this Note is represented by one or more Book-Entry Notes registered in the name of the Depositary or its nominee, the Company will cause payments of principal of, premium, if any, and interest on such Book-Entry Notes to be made to the Depositary or its nominee, as the case may be, by wire transfer to the extent, in the funds and in the manner required by agreements with, or regulations or procedures prescribed from time to time by, the Depositary or its nominee, and otherwise in accordance with such agreements, regulations and procedures. If this Note is a Book-Entry Note as specified above, the following legend is applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of interest and, if this Note is an Amortizing Note as specified above, principal on this Note (other than interest, and if this Note is an Amortizing Note, principal payable at Stated Maturity) will be made by mailing a check to the Holder at the address of the Holder appearing in the Security Register on the applicable Regular Record Date. Notwithstanding the foregoing, at the option of the Company, all payments of interest and, if this is an Amortizing Note, principal on this Note may be made by wire transfer of immediately available funds to an account designated by the Holder at a bank located in the United States.
The Company will pay any administrative costs imposed by banks in connection with making payments by wire transfer, but not any tax, assessment or governmental charge imposed upon the Holder of this Note. If this Note is a certificated Note as specified above, payment of the principal, premium, if any, and interest payable at Maturity in respect of this Note will be made in immediately available funds upon surrender of this Note accompanied by wire instructions at the Corporate Trust Office of the Trustee in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York, provided that this Note is presented to the Trustee in time for the Trustee to make such payment in such funds in accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, or its successor as Trustee, or its Authenticating Agent, by manual signature of an authorized signatory, this Note will not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MAYTAG CORPORATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
By:____________________________
Its:___________________________
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
Attest:________________________
Its:___________________________
By:____________________________
Authorized Officer
|
[Reverse of Note]
MAYTAG CORPORATION
MEDIUM-TERM NOTE, SERIES E
SECTION 1. General. This Note is one of a duly authorized issue of Securities of the Company (herein called the "Notes"), issued and to be issued in one or more series under an Indenture, dated as of June 15, 1987, as supplemented from time to time (herein called the "Indenture"), between the Company and Bank One, National Association, formerly known as The First National Bank of Chicago, as Trustee (herein called the "Trustee," which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Note is one of the Securities of the series designated on the face hereof. The Notes may bear different dates, mature at different times, bear interest at different rates, be subject to different redemption provisions, if any, may be subject to different sinking funds, purchase or analogous funds, if any, and may otherwise vary, all as provided in the Indenture.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on this
Note will be equal to the interest rate calculated by reference to the Interest
Rate Basis specified on the face hereof (i) plus or minus the Spread, if any,
(ii) multiplied by the Spread Multiplier, if any, or (iii) plus or minus the
Spread, if any and multiplied by the Spread Multiplier, if any. The "Spread" is
the number of basis points (one basis point equals one one-hundredth of a
percentage point) specified on the face hereof as being applicable to this Note,
and the "Spread Multiplier" is the percentage specified on the face hereof as
being applicable to this Note. Specified on the face hereof is the Interest Rate
Basis and the Spread and/or Spread Multiplier, if any, and the maximum or
minimum interest rate, if any, applicable to this Note. Specified on the face
hereof are particulars as to the Calculation Agent (unless otherwise specified,
Bank One, National Association (in such capacity, the "Calculation Agent")),
Index Maturity, Original Issue Date, the interest rate in effect for the period
from the Original Issue Date to the first Interest Reset Date specified on the
face hereof (the "Initial Interest Rate"), Interest Determination Dates,
Interest Payment Dates, Regular Record Dates and Interest Reset Dates with
respect to this Note.
Except as provided below, the Interest Payment Dates for the payment of
interest and, if this Note is an Amortizing Note, principal on this Note will be
(i) if this Note resets daily, weekly or monthly, the third Wednesday of each
month or the third Wednesday of March, June, September and December of each
year, as specified on the face hereof; (ii) if this Note resets quarterly, the
third Wednesday of March, June, September and December of each year, as
specified on the face hereof; (iii) if this Note resets semi-annually, the third
Wednesday of the two months of each year specified on the face hereof; and (iv)
if this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof and, in each case, at Maturity. If any Interest
Payment Date, other than Maturity, for this Note is not a Business Day for this
Note, such Interest Payment Date will be postponed to the next day that is a
Business Day for this Note, except that if the Interest Rate Basis specified on
the face hereof is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the immediately preceding
London Business Day. If the Maturity for this Note falls on a day that is not a
Business Day, payment of principal, premium, if any, and interest to be made on
such day with respect to this Note will be made on the next day that is a
Business Day with the same force and effect as if made on the due date, and no
additional interest will be payable on the date of payment for the period from
and after the due date as a result of such delayed payment.
The rate of interest on this Note will be reset daily, weekly, monthly, quarterly, semiannually or annually (such period being the "Reset Period" for this Note, and the first day of each Reset Period being an "Interest Reset Date"), as specified on the face hereof. Unless otherwise specified on the face hereof, the Interest Reset Date will be, if this Note resets daily, each Business Day for this Note; if this Note resets weekly (unless the Interest Rate Basis specified on the face hereof is the Treasury Rate), the Wednesday of each week; if this Note resets weekly and the Interest Rate Basis specified on the face hereof is the Treasury Rate, the Tuesday of each week (except as specified below); if this Note resets monthly (unless the Interest Rate Basis specified on the face hereof is the 11th District Cost of Funds Rate), the third Wednesday of each month; if this Note resets monthly and the Interest Rate Basis specified on the face hereof is the 11th District Cost of Funds Rate, the first calendar day of the month; if this Note resets quarterly, the third Wednesday of each March, June, September and December; if this Note resets semi-annually, the third Wednesday of the two months of each year specified on the face hereof; and if this Note resets annually, the third Wednesday of the one month of each year specified on the face hereof; provided, however, that the interest rate in effect from the Original Issue Date to but excluding the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof. If the Interest Reset Date is not a Business Day for this Note, the Interest Reset Date will be postponed to the next day that is a Business Day for this Note, except that if the Interest Rate Basis specified on the face hereof is LIBOR, if such Business Day is in the next succeeding calendar month, such Interest Reset Date will be the immediately preceding London Business Day. Each adjusted rate will be applicable on and after the Interest Reset Date to which it relates to but excluding the next succeeding Interest Reset Date or until Maturity.
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent on the Calculation Date (as defined below) pertaining to the
Interest Determination Date pertaining to the Interest Reset Date for such Reset
Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date (a) if the Interest
Rate Basis specified on the face hereof is Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (b) if the Interest Rate Basis
specified on the face hereof is CD Rate (the "CD Interest Determination Date"),
(c) if the Interest Rate Basis specified on the face hereof is CMT Rate (the
"CMT Interest Determination Date"), (d) if the Interest Rate Basis specified on
the face hereof is Federal Funds Rate (the "Federal Funds Interest Determination
Date"), or (e) if the Interest Rate Basis specified on the face hereof is Prime
Rate (the "Prime Interest Determination Date"), will be the second Business Day
prior to such Interest Reset Date as specified on the face hereof. Unless
otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date, if the Interest Rate Basis specified on
the face hereof is 11th District Cost of Funds Rate (the "11th District Interest
Determination Date"), will be the last Business Day of the month immediately
preceding such Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below
under "Determination of 11th District Cost of Funds Rate"). Unless otherwise
specified on the face hereof, the Interest Determination Date pertaining to an
Interest Reset Date, if the Interest Rate Basis specified on the face hereof is
LIBOR (the "LIBOR Interest Determination Date"), will be the second London
Business Day immediately preceding such Interest Reset Date. Unless otherwise
specified on the face hereof, the Interest Determination Date pertaining to an
Interest Reset Date, if the Interest Rate Basis specified on the face hereof is
Treasury Rate (the "Treasury Interest Determination Date"), will be the day of
the week in which such Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on the following Tuesday, except that such auction may be held on
the preceding Friday. If an auction is so held on the preceding Friday, such
Friday will be the Treasury Interest Determination Date pertaining to the Reset
Period commencing in the next succeeding week. Unless otherwise specified on the
face hereof, the "Calculation Date" pertaining to any Interest Determination
Date will be the earlier of (i) the tenth calendar day after the
Interest Determination Date or, if such day is not a Business Day, the next day that is a Business Day, or (ii) the Business Day preceding the applicable Interest Payment Date or Maturity, as the case may be.
"Business Day" means, unless otherwise specified on the face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is not a day on which banking institutions are authorized or obligated by law, regulation or executive order to close (a "Regular Weekday"); provided, however, that with respect to Notes denominated in a foreign currency, such Regular Weekday is also not a day on which commercial banks are authorized or obligated by law, regulation or executive order to close in the Principal Financial Center (as defined below) of the country issuing the Specified Currency (or, if the Specified Currency is euro, such Regular Weekday is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open); provided, further, that with respect to Notes as to which LIBOR is the applicable Interest Rate Basis such Regular Weekday is also a London Business Day (as defined below). "London Business Day" means any day on which dealings in deposits in the Designated LIBOR Currency are transacted in the London interbank market. "Principal Financial Center" means (i) the capital city of the country issuing the Specified Currency or (ii) the capital city of the country to which the Designated LIBOR Currency relates, as applicable, except, in the case of (i) or (ii) above, that with respect to United States dollars and euros, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney and (solely in the case of the Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London, Johannesburg and Zurich, respectively.
"Index Maturity" means the period to maturity of the instrument or obligation on which the interest rate formula is based, as specified on the face hereof.
Unless otherwise specified on the face hereof, if this Note is an Amortizing Note, payments with respect to this Note will be applied first to interest due and payable hereon and then to the reduction of the unpaid principal amount hereof. If this Note is an Amortizing Note, a table setting forth repayment information in respect to this Note will be provided to the original purchaser hereof and will be available, upon request, to subsequent Holders.
Unless otherwise specified on the face hereof, payments on this Note with respect to any Interest Payment Date or Maturity will include interest accrued from and including the Original Issue Date, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, to but excluding such Interest Payment Date or Maturity. Accrued interest is calculated by multiplying the principal amount of this Note by an accrued interest factor. This accrued interest factor is computed by adding the interest factors calculated for each day from and including the Original Issue Date, or from and including the last date to which interest has been paid or duly provided for, to but excluding the date for which accrued interest is being calculated. The interest factor for each such day is computed by dividing the interest rate applicable to such day by 360, if the Interest Rate Basis specified on the face hereof is Commercial Paper Rate, CD Rate, Federal Funds Rate, 11th District Cost of Funds Rate, LIBOR or Prime Rate, or by the actual number of days in the year, if the Interest Rate Basis specified on the face hereof is CMT Rate or Treasury Rate.
The Calculation Agent will calculate the interest rate on this Note, as provided below. The Calculation Agent will, upon the request of the Holder of this Note, provide the interest rate then in effect and, if then determined, the interest rate which will become effective as a result of a determination made with respect to the most recent Interest Determination Date with respect to this Note. For purposes of calculating the rate of interest payable on this Note, the Company has entered into or will enter into an agreement with the Calculation Agent. The Calculation Agent's determination of any interest rate will be final and binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided below, the interest rate on this Note for any interest period will not be greater than the maximum interest rate, if any, or less than the minimum interest rate, if any, specified on the face hereof. The interest rate on this Note will in no event be higher than the maximum rate permitted by Illinois or other applicable law, as the same may be modified by United States law of general application.
Determination of Commercial Paper Rate. If the Interest Rate Basis specified on the face hereof is Commercial Paper Rate, the interest rate determined with respect to any Commercial Paper Interest Determination Date will be the Commercial Paper Rate on such Commercial Paper Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "Commercial Paper Rate" means, with respect to any Commercial Paper Interest Determination Date, the Money Market Yield (calculated as described below) of the rate on such date for commercial paper having the Index Maturity specified on the face hereof as published by the Board of Governors of the Federal Reserve System in "Statistical Release H.15(519), Selected Interest Rates" or any successor publication of the Board of Governors ("H.15(519)") under the heading "Commercial Paper-Nonfinancial." In the event that such rate is not published prior to 3:00 P.M., New York City time, on the Calculation Date pertaining to such Commercial Paper Interest Determination Date, then the Commercial Paper Rate with respect to such Commercial Paper Interest Determination Date will be the Money Market Yield of the rate on such Commercial Paper Interest Determination Date for commercial paper having the Index Maturity specified on the face hereof as published by the Board of Governors of the Federal Reserve System in its daily update of H.15(519), available through the web site of the Board of Governors of the Federal Reserve System at www.federal.reserve.gov/releases/h15/update, or any successor site or publication ("H.15 Daily Update") under the caption "Commercial Paper-Nonfinancial." If by 3:00 P.M., New York City time, on such Calculation Date such rate is not published in either H.15(519) or H.15 Daily Update, then the Commercial Paper Rate with respect to such Commercial Paper Interest Determination Date will be calculated by the Calculation Agent and will be the Money Market Yield of the arithmetic mean of the offered rates (quoted on a bank discount basis) as of 11:00 A.M., New York City time, on such Commercial Paper Interest Determination Date of three leading dealers of commercial paper in The City of New York selected by the Calculation Agent for commercial paper having the Index Maturity specified on the face hereof placed for an industrial issuer whose bond rating is "AA," or the equivalent, from a nationally recognized statistical rating agency; provided, however, that if the dealers selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, the Commercial Paper Rate with respect to such Commercial Paper Interest Determination Date will be the Commercial Paper Rate in effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" will be a yield (expressed as a percentage rounded, if necessary, to the nearest one one hundred-thousandth of a percent) calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
|
where "D" refers to the per annum rate for commercial paper, quoted on a bank discount basis and expressed as a decimal; and "M" refers to the actual number of days in the period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face hereof is CD Rate, the interest rate determined with respect to any CD Interest Determination Date will be the CD Rate on such CD Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CD Rate" means, with respect to any CD Interest Determination Date, the rate on such date for negotiable certificates of deposit having the Index Maturity specified on the face hereof as published in H.15(519) under the heading "CDs (Secondary Market)." In the event that such rate is not published prior to 3:00 P.M., New York City time, on the Calculation Date pertaining to such CD Interest Determination Date, then the CD Rate with respect to such CD Interest Determination Date will be the rate on such CD Interest Determination Date for negotiable certificates of deposit having the Index Maturity specified on the face hereof as published in H.15 Daily Update under the heading "CDs (Secondary Market)." If by 3:00 P.M., New York City time, on such Calculation Date such rate is not published in either H.15(519) or H.15 Daily Update, then the CD Rate with respect to such CD Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York City time, on such CD Interest Determination Date of three leading nonbank dealers in negotiable U.S. dollar certificates of deposit in The City of New York selected by the Calculation Agent for negotiable certificates of deposit of major United States money market banks (in the market for negotiable certificates of deposit) with a remaining maturity closest to the Index Maturity specified on the face hereof in a denomination of $5,000,000; provided, however, that if the dealers selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate with respect to such CD Interest Determination Date will be the CD Rate in effect on such CD Interest Determination Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the face hereof is CMT Rate, the interest rate determined with respect to any CMT Interest Determination Date will be the CMT Rate on such CMT Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CMT Rate" means, with respect to any CMT Interest Determination Date, the rate displayed on the Designated CMT Telerate Page (as defined below) under the caption "Treasury Constant Maturities" under the column for the Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is 7051, such CMT Interest Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as specified on the face hereof, ended immediately preceding the week in which the applicable CMT Interest Determination Date occurs. If such rate is no longer displayed on the relevant page, or if not displayed by 3:00 P.M., New York City time, on the Calculation Date pertaining to such CMT Interest Determination Date, then the CMT Rate with respect to such CMT Interest Determination Date will be such treasury constant maturity rate for the Designated CMT Maturity Index as published in the relevant H.15(519). If such rate is no longer published, or if not published by 3:00 P.M., New York City time, on the Calculation Date pertaining to such CMT Interest Determination Date, then the CMT Rate with respect to such CMT Interest Determination Date will be such treasury constant maturity rate for the Designated CMT Maturity Index (or other United States Treasury rate for the Designated CMT Maturity Index) for the CMT Interest Determination Date with respect to such Interest Reset Date as may then be published by either the Board of Governors of the Federal Reserve System or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate formerly displayed on the Designated CMT Telerate Page and published in the relevant H.15(519). If such information is not provided by 3:00 P.M., New York City time, on the Calculation Date pertaining to such CMT Interest Determination Date, then the CMT Rate with respect to such CMT Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity, based on the arithmetic mean of the secondary market closing offer side prices as of approximately 3:30 P.M., New York City time, on the CMT Interest Determination Date reported, according to their written records, by three leading primary United States government securities dealers (each, a "Reference Dealer") in The City of New York selected by the Calculation Agent (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for the most recently issued direct noncallable fixed rate obligations of the United States ("Treasury Notes") with an original maturity of approximately the Designated CMT Maturity Index and a remaining term to maturity of not less than such Designated CMT Maturity Index minus one year. If the Calculation Agent cannot obtain three such Treasury Note quotations, the CMT Rate with respect to such CMT Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity based on the arithmetic mean of the secondary market offer side prices as of approximately 3:30 P.M., New York City time, on the CMT Interest Determination Date of three Reference Dealers in The City of New York (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for Treasury Notes with an original maturity of the number of years that is the next highest to the Designated CMT Maturity Index and a remaining term to maturity closest to the Designated CMT Maturity Index and in an amount of at least $100,000,000. If three or four (and not five) of such Reference Dealers are quoting as described above, then the CMT Rate with respect to such CMT Interest Determination Date will be based on the arithmetic mean of the offer prices obtained and neither the highest nor the lowest of such quotes will be eliminated; provided, however, that if fewer than three Reference Dealers selected by the Calculation Agent are quoting as described herein, the CMT Rate will be the CMT Rate in effect on such CMT Interest Determination Date. If two Treasury Notes with an original maturity as described in the second preceding sentence have remaining terms to maturity equally close to the Designated CMT Maturity Index, the quotes for the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate Service on the page specified on the face hereof (or any other page as may replace such page on that service for the purpose of displaying Treasury Constant Maturities as published in H.15(519)), for the purpose of displaying Treasury Constant Maturities as published in H.15(519). If no such page is specified on the face hereof, the Designated CMT Telerate Page will be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of the Treasury Notes (either one, two, three, five, seven, ten, twenty or thirty years) specified on the face hereof with respect to which the CMT Rate will be calculated. If no such maturity is specified on the face hereof, the Designated CMT Maturity Index will be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis specified on the face hereof is Federal Funds Rate, the interest rate determined with respect to any Federal Funds Interest Determination Date will be the Federal Funds Rate on such Federal Funds Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Federal Funds Rate" means, with respect to any Federal Funds Interest Determination Date, the rate on such date for Federal Funds as published in H.15(519) under the heading "Federal Funds (Effective)." In the event that
such rate is not published prior to 3:00 P.M., New York City time, on the Calculation Date pertaining to such Federal Funds Interest Determination Date, then the Federal Funds Rate will be the rate on such Federal Funds Interest Determination Date as published in H.15 Daily Update under the heading "Federal Funds (Effective)" as such rate is displayed on Telerate Page 120 (or any other page as may replace such page or such service) ("Telerate Page 120"). If such rate does not appear on Telerate 120 by 3:00 P.M., New York City time, on such Calculation Date, then the Federal Funds Rate with respect to such Federal Funds Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean (rounded, if necessary, to the nearest one hundred-thousandth of a percent, with five millionths of a percentage point rounded upwards) of the rates as of 9:00 A.M., New York City time, on such Federal Funds Interest Determination Date for the last transaction in overnight Federal Funds arranged by three leading brokers of Federal Funds transactions in The City of New York selected by the Calculation Agent; provided, however, that if the brokers selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, the Federal Funds Rate with respect to such Federal Funds Interest Determination Date will be the Federal Funds Rate in effect on such Federal Funds Interest Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate Basis specified on the face hereof is 11th District Cost of Funds Rate, the interest rate determined with respect to any 11th District Interest Determination Date will be the 11th District Cost of Funds Rate on such 11th District Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "11th District Cost of Funds Rate" means, with respect to any 11th District Interest Determination Date, the rate equal to the monthly weighted average cost of funds for the calendar month preceding such 11th District Interest Determination Date as set forth under the caption "11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such 11th District Interest Determination Date. If such rate does not appear on Telerate Page 7058 on such 11th District Interest Determination Date, the 11th District Cost of Funds Rate for such 11th District Interest Determination Date will be the monthly weighted average cost of funds paid by member institutions of the Eleventh Federal Home Loan Bank District that was most recently announced (the "Index") by the FHLB of San Francisco as such cost of funds for the calendar month immediately preceding the date of such announcement. If the FHLB of San Francisco fails to announce such rate for the calendar month immediately preceding such 11th District Interest Determination Date, then the 11th District Cost of Funds Rate with respect to such 11th District Interest Determination Date will be the 11th District Cost of Funds Rate then in effect on such 11th District Interest Determination Date.
Determination of LIBOR. If the Interest Rate Basis specified on the face hereof is LIBOR, the interest rate determined with respect to any LIBOR Interest Determination Date will be LIBOR on such LIBOR Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, LIBOR means, with respect to any LIBOR Interest Determination Date, the rate determined by the Calculation Agent in accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will be either: (a) if "LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the offered rates (unless the specified Designated LIBOR Page (as defined below) by its terms provides only for a single rate, in which case such single rate will be used) for deposits in the Designated LIBOR Currency (as defined below) having the Index Maturity specified on the face hereof, commencing on the second London Business Day immediately following such LIBOR Interest Determination Date, which appear on the Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London time, on that LIBOR Interest Determination Date, if at least two such offered rates appear (unless, as aforesaid, only a single rate is required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the face hereof, the rate for deposits in the Designated LIBOR Currency having the Index Maturity specified on the face hereof, commencing on the second London Business Day immediately following such LIBOR Interest Determination Date, which appears on the Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London time, on that LIBOR Interest Determination Date. Notwithstanding the foregoing, if fewer than two offered rates appear on the Designated LIBOR Page with respect to LIBOR Reuters (unless the specified Designated LIBOR Page by its terms provides only for a single rate, in which case such single rate will be used), or if no rate appears on the Designated LIBOR Page with respect to LIBOR Telerate, whichever may be applicable, LIBOR with respect to such LIBOR Interest Determination Date will be determined as if the parties had specified the rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which fewer than two offered rates appear on the Designated LIBOR Page with respect to LIBOR Reuters (unless the Designated LIBOR Page by its terms provides only for a single rate, in which case such single rate will be used), or if no rate appears on the Designated LIBOR Page with respect to LIBOR Telerate, as the case may be, the Calculation Agent will request the principal London office of each of four major banks in the London interbank market selected by the Calculation Agent to provide the Calculation Agent with its offered rate quotation for deposits in the Designated LIBOR Currency for the period of the Index Maturity specified on the face hereof, commencing on the second London Business Day immediately following such LIBOR Interest Determination Date, to prime banks in the London interbank market as of 11:00 A.M., London time, on such LIBOR Interest Determination Date and in a principal amount that is representative for a single transaction in such Designated LIBOR Currency in such market at such time. If at least two such quotations are provided, LIBOR with respect to such LIBOR Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR with respect to such LIBOR Interest Determination Date will be the arithmetic mean of the rates quoted as of 11:00 A.M. in the applicable Principal Financial Center (as defined below), on such LIBOR Interest Determination Date by three major banks in such Principal Financial Center selected by the Calculation Agent for loans in the Designated LIBOR Currency to leading European banks, commencing on the second London Business Day immediately following such LIBOR Interest Determination Date having the Index Maturity specified on the face hereof in a principal amount that is representative for a single transaction in such Designated LIBOR Currency in such market at such time; provided, however, that if the banks so selected by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR with respect to such LIBOR Interest Determination Date will be LIBOR in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a composite currency), if any, designated on the face hereof as the Designated LIBOR Currency. If no such currency is designated on the face hereof, the Designated LIBOR Currency will be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters Monitor Money Rates Service for the purpose of displaying the London interbank rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR Reuters" is specified on the face hereof), or (b) the display on the Dow Jones Telerate Service for the purpose of displaying the London interbank rates of major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is specified on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the applicable Designated LIBOR Currency will be determined as if LIBOR Telerate (and, if the U.S. dollar is the Designated LIBOR Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the face hereof, the capital city of the country that issues as its legal tender the Designated LIBOR Currency of this Note, except that with respect to U.S. dollars and ECUs, the Principal Financial Center will be The City of New York and Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on the face hereof is Prime Rate, the interest rate determined with respect to any Prime Interest Determination Date will be the Prime Rate on such Prime Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Prime Rate" means, with respect to any Prime Interest Determination Date, the rate on such date as published in H.15(519) under the heading "Bank Prime Loan." In the event that such rate is not published prior to 3:00 P.M., New York City time, on the Calculation Date pertaining to such Prime Interest Determination Date, then the Prime Rate with respect to such Prime Interest Determination Date will be the rate as published in H.15 Daily Update under the caption "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New York City time, on the Calculation Date pertaining to such Prime Interest Determination Date, then the Prime Rate with respect to such Prime Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen US PRIME 1 as such bank's prime rate or base lending rate as in effect as of 11:00 A.M., New York City time, with respect to such Prime Interest Determination Date. If fewer than four such rates appear on the Reuters Screen US PRIME 1 with respect to such Prime Interest Determination Date, the Prime Rate with respect to such Prime Rate Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the prime rates quoted on the basis of the actual number of days in the year divided by 360 as of the close of business on such Prime Interest Determination Date by at least two of the three major money center banks in The City of New York selected by the Calculation Agent. If fewer than two quotations are provided, the Prime Rate with respect to such Prime Interest Determination Date will be determined on the basis of the rates furnished in The City of New York by the appropriate number of substitute banks or trust companies organized and doing business under the laws of the United States, or any state thereof, having total equity capital of at least U.S. $500,000,000 and being subject to supervision or examination by Federal or state authority, selected by the Calculation Agent to provide such rate or rates; provided, however, that if the appropriate number of substitute banks or trust companies selected as aforesaid are not quoting as mentioned in this sentence, the Prime Rate with respect to such Prime Interest Determination Date will be the Prime Rate in effect on such Prime Interest Determination Date. "Reuters Screen US PRIME 1" means the display designated as page "US PRIME 1" on the Reuters Monitor Money Rate Service (or such other page as may replace the US PRIME 1 page on the service for the purpose of displaying the prime rate or base lending rate of major banks).
Determination of Treasury Rate. If the Interest Rate Basis specified on the face hereof is Treasury Rate, the interest rate determined with respect to any Treasury Interest Determination Date will be the Treasury Rate on such Treasury Interest Determination Date plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Treasury Rate" means, with respect to any Treasury Interest Determination Date, the rate set at the most recent auction held on the Treasury Rate Interest Determination Date of direct obligations of the United States ("Treasury bills") having the Index Maturity specified on the face hereof under the caption "INVESTMENT RATE" on the display on Bridge Telerate, Inc. (or any successor service) on page 56 (or any other page as may replace that page on such service) ("Telerate Page 56") or page 57 (or any other page as may replace that page on such service) ("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time, on the Calculation Date pertaining to such Treasury Interest Determination Date, the Bond Equivalent Yield (as defined below) or the rate for Treasury Bills as published in H.15 Daily Update, or the other recognized electronic source used for the purpose of displaying the rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High."
In the event that such rate is not so published in H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the Calculation Date pertaining to such Treasury Interest Determination Date, then the Treasury Rate with respect to such Treasury Interest Determination Date shall be the Bond Equivalent Yield of the auction rate of the Treasury Bills as announced by the United States Department of Treasury. In the event that the auction rate is not so announced by the United States Department of the Treasury on the Calculation Date pertaining to such Treasury Interest Determination Date, or if no auction of Treasury Bills is held, then the Treasury Rate with respect to such Treasury Interest Determination Date shall be the Bond Equivalent Yield of the rate on such Treasury Interest Determination Date of Treasury Bills having the index maturity as published in H.15(519) under the caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00 P.M., New York City time, on the Calculation Date, the rate on the Treasury Interest Determination Date of such Treasury Bills as published in H.15 Daily Update, or the other recognized electronic source used for the purpose of displaying the rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary Market."
If the rate is not yet published in H.15(519), H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York City time, on the Calculation Date, the Treasury Rate on the Treasury Interest Determination Date will be calculated by the Calculation Agent and will be the Bond Equivalent Yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 P.M., New York City time, on such Treasury Interest Determination Date, of three leading primary U.S. government securities dealers selected by the Calculation Agent for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity specified on the face hereof; provided, however, that if the dealers selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, the Treasury Rate with respect to such Treasury Interest Determination Date will be the Treasury Rate in effect on such Treasury Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated in accordance with the following formula:
D X N
Bond Equivalent Yield = ----------- x 100 360-(D X M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the case may be, and "M" refers to the actual number of days in the applicable interest reset period.
This Note may be issued with the principal amount payable at Maturity and/or with interest payable hereon on an Interest Payment Date to be determined by reference to the price or prices of specified securities or commodities, securities or commodities exchange indices, the relationship between two or more specified currencies or other factors (each an "Indexed Note"), as shall be indicated above under "Other Provisions." Specific information pertaining to the method for determining the principal amount payable at Maturity or the amount of interest to be paid on an Interest Payment Date with reference to the specified index shall be included above under "Other Provisions."
The Calculation Agent will calculate the interest rate on this Note in accordance with the foregoing no later than the Calculation Date. The Calculation Agent's determination of any interest rate shall be final and binding in the absence of manifest error.
All percentages resulting from any calculation with respect to this Note will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with five one-millionths of a percentage point being rounded upward) and all amounts used in or resulting from any such calculation with respect to this Note will be rounded, in the case of United States dollars, to the nearest cent or in the case of a foreign currency, to the nearest unit (with one-half cent or unit being rounded upwards).
The Company is obligated to make payment of principal, premium, if any, and interest in respect of this Note in the Specified Currency (or, if the Specified Currency is not at the time of such payment legal tender for the payment of public and private debts, in such other coin or currency of the country which issued the Specified Currency as at the time of such payment is legal tender for the payment of such debts). If the Specified Currency is other than United States dollars, any such amounts so payable by the Company will be converted by the Exchange Rate Agent specified above into United States dollars for payment to the Holder of this Note; provided, however, that the Holder of this Note may elect to receive such amounts in such Specified Currency pursuant to the provisions set forth below.
If the Specified Currency is other than United States dollars and the Holder of this Note shall not have duly made an election to receive all or a specified portion of any payment of principal, premium, if any, and/or interest in respect of this Note in the Specified Currency, any United States dollar amount to be received by the Holder of this Note will be based on the highest bid quotation in The City of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the Company for the purchase by the quoting dealer of the Specified Currency for United States dollars for settlement on such payment date in the aggregate amount of the Specified Currency payable to all Holders of Notes scheduled to receive United States dollar payments and at which the applicable dealer commits to execute a contract. All currency exchange costs will be borne by the Holder of this Note by deductions from such payments. If three such bid quotations are not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the Holder of this Note may elect to receive all or a specified portion of any payment of principal, premium, if any, and/or interest in respect of this Note in the Specified Currency by submitting a written request for such payment to the Trustee at its Corporate Trust Office located in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York on or prior to the applicable Record Date or at least 15 calendar days prior to Maturity, as the case may be. Such written request may be mailed or hand delivered or sent by cable, telex or other form of facsimile transmission. The Holder of this Note may elect to receive all or a specified portion of all future payments in the Specified Currency in respect of such principal, premium, if any, and/or interest and need not file a separate election for each payment. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of any such revocation must be received by the Trustee on or prior to the applicable Record Date or at least 15 calendar days prior to Maturity, as the case may be.
If the Specified Currency is other than United States dollars and if the Specified Currency is not available due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to the Holder of this Note by making such payment in United States dollars on the basis of the Market Exchange Rate (as defined below) on the second Business Day prior to such payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange Rate" for the Specified Currency means the noon dollar buying rate in The City of New York for cable transfers for the Specified Currency as certified for customs purposes by (or if not so certified, as otherwise determined by) the Federal Reserve Bank of New York. Any payment made under such circumstances in United States dollars will not constitute an Event of Default (as defined in the Indenture).
All determinations referred to above made by the Company or its agent (including the Exchange Rate Agent) shall be at its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and binding on the Holder of this Note.
SECTION 3. Redemption. This Note will be redeemable at the option of the Company prior to the Stated Maturity only if an Initial Redemption Date is specified on the face hereof. If so specified, this Note will be subject to redemption at the option of the Company on any date on and after such Initial Redemption Date in whole or from time to time in part in increments of $1,000 or the minimum denomination, if any, specified on the face hereof (provided that any remaining principal amount hereof shall be at least $1,000 or such minimum denomination), at the Redemption Price specified on the face hereof, plus accrued and unpaid interest to but excluding the date of redemption, but payments due with respect to this Note prior to the date of redemption will be payable to the Holder of this Note of record at the close of business on the relevant Regular Record Date specified on the face hereof, all as provided in the Indenture. The Company may exercise such option by causing the Trustee to mail a notice of such redemption, at least 30 but not more than 60 calendar days prior to the date of redemption, in accordance with the provisions of the Indenture. In the event of redemption of this Note in part only, this Note will be canceled and a new Note or Notes representing the unredeemed portion hereof will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note will be repayable, in whole or in part, prior to Stated Maturity at the option of the Holder on the Optional Repayment Date or Dates specified on the face hereof at the Optional Repayment Price or Prices specified on the face hereof, plus accrued and unpaid interest to but excluding the date of repayment. In order for this Note to be repaid prior to Stated Maturity, the Paying Agent must receive at least 30 but not more than 45 calendar days prior to an Optional Repayment Date (i) this Note with the form below entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex, facsimile transmission or letter (first class, postage prepaid) from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the Holder of this Note, the principal amount of this Note, the principal amount of this Note to be repaid, the certificate number or a description of the tenor and terms of this Note, a statement that the option to elect repayment is being exercised thereby and a guarantee that this Note with the form below entitled "Option to Elect Repayment" duly completed will be received by the Paying Agent not later than five Business Days after the date of such telegram, telex, facsimile transmission or letter. If the procedure described in clause (ii) of the preceding sentence is followed, this Note with such form duly completed must be received by the Paying Agent by such fifth Business Day. Exercise of the repayment option by the Holder of this Note will be irrevocable, except that a Holder who has tendered this Note for repayment may revoke such tender for repayment by written notice to the Paying Agent received prior to the close of business, on the tenth calendar day prior to the Optional Repayment Date. The repayment option may be exercised by the Holder of this Note for less than the entire principal amount of this Note provided that the principal amount of this Note remaining outstanding after such repayment is an authorized denomination. Upon such partial repayment this Note will be canceled and a new Note or Notes for the remaining principal amount hereof will be issued in the name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof, while this Note is represented by one or more Book-Entry Notes registered in the name of the Depositary or its nominee, the option for repayment may be exercised by a participant that has an account with the Depositary, on behalf of the beneficial owner of this Note, by delivering a written notice substantially similar to the form below entitled "Option to Elect Repayment" duly completed to the Trustee at its Corporate Trust Office (or such other address of which the Company will from time to time notify the Holders), at least 30 but not more than 60 calendar days prior to an Optional Repayment Date. A notice of election from a participant on behalf of the beneficial owner of this Note to exercise the option to have this Note repaid must be received by the Trustee prior to 5:00 P.M., New York City time, on the last day for giving such notice. In order to ensure that a notice is received by the Trustee on a particular day, the beneficial owner of this Note must so direct the applicable participant before such participant's deadline for accepting instructions for that day. Different firms may have different deadlines for accepting instructions from their customers. Accordingly, the beneficial owner of this Note should consult the participant through which such beneficial owner owns its interest herein for the deadline for such participant. All notices shall be executed by a duly authorized officer of such participant (with signatures guaranteed) and will be irrevocable. In addition, the beneficial owner of this Note shall effect delivery at the time such notice of election is given to the Depositary by causing the applicable participant to transfer such beneficial owner's interest in this Note, on the Depositary's records, to the Trustee.
SECTION 5. Optional Interest Reset. If so specified on the face hereof, the interest rate, the Spread, if any, and/or the Spread Multiplier, specified on the face hereof may be reset by the Company on the Optional Reset Date or Dates specified on the face hereof. The Company may exercise such option by notifying the Trustee of such exercise at least 45 but not more than 60 calendar days prior to an Optional Reset Date. If the Company so notifies the Trustee of such exercise, not later than 40 calendar days prior to such Optional Reset Date, the Trustee will send by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) to the Holder of this Note a notice (the "Reset Notice") indicating (I) that the Company has elected to reset the interest rate, the Spread, if any, and/or the Spread Multiplier, (ii) such new interest rate, the Spread, if any, and/or the Spread Multiplier, and (iii) the provisions, if any, for redemption during the period from such Optional Reset Date, to the Stated Maturity of this Note (each such period a "Subsequent Interest Period"), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an Optional Reset Date, the Company may, at its option, revoke the interest rate, the Spread, if any, and/or the Spread Multiplier, provided for in the Reset Notice and establish a higher interest rate, the Spread, if any, and/or the Spread Multiplier, for the Subsequent Interest Period commencing on such Optional Reset Date by causing the Trustee to send by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) notice of such higher interest rate to the Holder of this Note. Such notice will be irrevocable. All Notes with respect to which the interest rate, the Spread, if any, and/or the Spread Multiplier, is reset on an Optional Reset Date to a higher interest rate, the Spread, if any, and/or the Spread Multiplier, will bear such higher interest rate, the Spread, if any, and/or the Spread Multiplier, whether or not tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Reset Date to reset the interest rate, the Spread, if any, and/or the Spread Multiplier, of this Note, the Holder of this Note will have the option to elect repayment of this Note, in whole but not in part, by the Company on such Optional Reset Date at a price equal to the principal amount hereof plus accrued and unpaid interest to but excluding such Optional Reset Date. In order for this Note to be so repaid on an Optional Reset Date, the Holder must follow the procedures specified under Section 4 for optional repayment, except that the period for deliver of this Note or notification to the Trustee will be at least 25 but not more than 35 calendar days prior to such Optional Reset Date. If the Holder has tendered his Note for repayment following receipt of a Reset Notice, the Holder may revoke such tender for repayment by written notice to the Trustee received prior to the close of business, on the tenth calendar day prior to such Optional Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face hereof, the Stated Maturity of this Note may be extended at the option of the Company for one or more periods of one or more years, as specified on the face hereof (each an "Extension Period"), up to but not beyond the date (the "Final Maturity") specified on the face hereof. The Company may exercise such option with respect to this Note by notifying the Trustee of such exercise at least 45 but not more than 60 calendar days prior to the Stated Maturity of this Note in effect prior to the exercise of such option (the "Original Maturity") or, if the Maturity of this Note has already been extended, prior to the Maturity then in effect (an "Extended Maturity"). If the Company so notifies the Trustee of such exercise, the Trustee will send, not later than 40 calendar days prior to the Original Maturity or an Extended Maturity (each a "Maturity Date"), by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) to the Holder of this Note a notice (the "Extension Notice") relating to such Extension Period indicating (i) that the Company has elected to extend the Original Maturity or Extended Maturity, as applicable, of this Note, (ii) the new Maturity Date, (iii) the interest rate, the Spread and/or Spread Multiplier applicable to such Extension Period and (iv) the provisions, if any, for redemption during such Extension Period, including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during such Extension Period. Upon the Trustee's sending of the Extension Notice, the Maturity Date of this Note will be extended automatically and, except as modified by the Extension Notice and as described in the next two paragraphs, this Note will have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to the Maturity Date of this Note which was in effect prior to the mailing of an Extension Notice, the Company may, at its option, revoke the interest rate, the Spread, if any, and/or the Spread Multiplier, provided for in the Extension Note and establish a higher interest rate, the Spread, if any, and/or the Spread Multiplier, for the Extension Period by causing the Trustee to send by telegram, telex, facsimile transmission, hand delivery or letter (first class, postage prepaid) notice of such higher interest rate, the Spread, if any, and/or the Spread Multiplier, to the Holder of this Note. Such notice will be irrevocable. All Notes with respect to which the Maturity Date is extended will bear such higher interest rate, the Spread, if any, and/or the Spread Multiplier, for the Extension Period, whether or not tendered for repayment as provided in the next paragraph.
If the Company extends the Maturity Date of this Note, the Holder will have the option to elect repayment of this Note, in whole but not in part by the Company on the Maturity Date in effect prior to the mailing of the Extension Notice at a price equal to the principal amount hereof, plus accrued and unpaid interest to but excluding such date. In order for this Note to be so repaid on the Maturity Date in effect prior to the mailing of the Extension Notice, the Holder of this Note must follow the procedures specified under Section 4 for optional repayment, except that the period for delivery of this Note or notification to the Trustee will be at least 25 but not more than 35 calendar days prior to the Maturity Date in effect prior to the mailing of the Extension Notice. If the Holder has tendered this Note for repayment following receipt of an Extension Notice, the Holder may revoke such tender for repayment by written notice to the Trustee received prior to 5:00 p.m., New York City time, on the tenth calendar day prior to the Maturity Date in effect prior to the mailing of the Extension Notice.
SECTION 7. Sinking Fund. This Note is not subject to a sinking fund unless otherwise specified on the face hereof.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything herein to the contrary, if this Note is an Original Issue Discount Note as specified on the face hereof, the amount payable in the event the principal amount hereof is declared to be due and payable immediately by reason of an Event of Default or in the event of redemption or repayment hereof prior to the Stated Maturity hereof, in lieu of the principal amount due at the Stated Maturity hereof, will be the Amortized Face Amount of this Note as of the date of declaration, redemption or repayment, as the case may be. The "Amortized Face Amount" of this Note will be the amount equal to (a) the principal amount of this Note multiplied by the Issue Price specified on the face hereof plus (b) the portion of the difference between the dollar amount determined pursuant to the preceding clause (a) and the principal amount hereof that has accreted at the Yield to Maturity specified on the face hereof (computed in accordance with generally accepted United States bond yield computation principles) to such date of declaration, redemption or repayment but in no event will the Amortized Face Amount of this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture; provided, however, that notwithstanding anything herein to the contrary, if this Note is an Original Issue Discount Note, the amount so declared to be due and payable will be the Amortized Face Amount of this Note as of the date of such declaration as specified under Section 8.
SECTION 10. Modification or Waiver; Obligation of the Company Absolute. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than 66K% in principal amount of the Outstanding Securities of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Outstanding Securities of each series, on behalf of the Holders of all Securities of such series, to waive, with respect to the Securities of such series, compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note will be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture will alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest on this Note at the times, places and rates, herein prescribed.
SECTION 11. Discharge, Legal Defeasance and Covenant Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Note and (b) certain restrictive covenants and the related Events of Default upon compliance by the Company with certain conditions specified therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise specified on the face hereof, the Notes of this series are issuable only in global or certificated registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein specified and to the limitations described below, if applicable, Notes of this series are exchangeable for Notes of this series of like aggregate principal amount and like Stated Maturity and with like terms and conditions of a different authorized denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and subject to certain limitations therein specified and to the limitations described below, if applicable, the transfer of this Note is registerable in the Security Register upon surrender of this Note for registration of transfer at the office or agency of the Company maintained for that purpose duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar (which will initially be the Trustee at its Corporate Trust Office located in The City of Chicago, Illinois or the Borough of Manhattan, The City of New York) duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series with like terms and conditions, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this Note is exchangeable for certificated Notes only upon the terms and conditions provided in the Ninth Supplemental Indenture dated as of October 30, 2001. Except as provided in the Indenture, owners of beneficial interests in this Book-Entry Note will not be entitled to receive physical delivery of Notes in certificated registered form and will not be considered the Holders thereof for any purpose under the Indenture.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing hereon, and none of the Company, the Trustee or any such agent will be affected by notice to the contrary.
SECTION 15. Governing Law. The Indenture and the Notes will be governed by and construed in accordance with the laws of the State of Illinois.
SECTION 16. Defined Terms. All terms used in this Note which are defined in the Indenture will have the meanings assigned to them in the Indenture unless otherwise defined in the Ninth Supplemental Indenture dated as of October 30, 2001 or herein; and all references in the Indenture to "Security" or "Securities" will be deemed to include the Notes.
OPTION TO ELECT REPAYMENT
[to be completed only if this Note
is repayable at the option of the Holder
and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the Company repay the principal amount of this Note or portion hereof below designated at the applicable Optional Repayment Price indicated on the face hereof, plus accrued and unpaid interest to but excluding the date of repayment, pursuant to Section 4 of this Note:
Date:
------------------------- ---------------------------
Signature
Sign exactly as name appears on
the front of this Note.
Indicate address where check is
to be sent, if repaid:
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SOCIAL SECURITY OR OTHER TAXPAYER
ID NUMBER
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, will be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT Custodian
====================================================
(Cust) (Minor)
Under Uniform Gifts to Minors Act
====================================================
(State)
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Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE **
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Dated: ___________________ ______________________________________________
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange]
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NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN
INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.