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
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc One Capital Markets, Inc.
One Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Deutsche Banc Xxxx. Xxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx 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,
2
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
3
(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
4
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.
2. Solicitations as Agent; Purchases as Principal.
----------------------------------------------
(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
5
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
6
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 Xxxxxx Xxxxxx Xxxxx & Xxxx LLP,
Bank Xxx Xxxxx, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 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").
3. Covenants of the Company. The Company agrees:
------------------------
(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
7
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).
8
(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
9
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 & Xxxxxx, 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
10
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;
11
(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;
12
(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 Xxxxx & 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
13
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.
14
(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 Xxxxx'x 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.
6. Additional Covenants of the Company. The Company covenants and agrees
------------------------------------
that:
(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
15
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
16
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.
7. Indemnification and Contribution.
--------------------------------
(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,
17
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.
18
(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
19
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 Xxxxxxx
Xxxxx Xxxxxx Inc., shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000, 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., Xxx Xxxx Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000, Fax: (000) 000-0000, Attention:
Investment Grade Securities; if to Deutsche Banc Xxxx. Xxxxx Inc., shall be
sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to Deutsche Banc Xxxx. Xxxxx Inc., 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax: (000) 000-0000, Attention: Debt Capital
Markets Syndication Desk; if to Xxxxxx Brothers Inc., shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or registered
mail to Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Medium Term Note Desk/Fixed Income Syndicate, Fax: (000) 000-0000
(with a copy to the Office of the General Counsel); if to Xxxxxxx Xxxxx & Co. or
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx, 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: (000) 000-0000; 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: (000) 000-0000.
20
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]
21
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/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Title: Associate Director
DEUTSCHE BANC ALEX. BROWN INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Title: Managing Director
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Authorized Signatory
22
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%
--------------------------------------------- ---------------------------------
A-1
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. Xxxxxxx Xxxxx Xxxxxx Inc., Banc One Capital
Markets, Inc., Deutsche Banc Xxxx. Xxxxx Inc., Xxxxxx Brothers Inc. and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 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
B-1
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").
B-2
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.
B-3
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.
B-4
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.
B-5
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
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.
B-7
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
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.
B-9
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
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.
B-11
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 XXXXX 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
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.
B-13
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
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.
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-15
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).
B-16
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.
B-17
X. 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 Xxxxxx
Trust and Savings Bank, ABA #000000000, Account
Number 000-000-0, 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.
B-18
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
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.
B-19
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 Xxxxxx 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.
B-20
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).
B-21
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.
B-22
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
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
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
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 XXXXX 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
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
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
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.
B-29
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.
B-30
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.
B-31
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.
B-32
EXHIBIT C
PURCHASE AGREEMENT
Maytag Corporation __________, ____
000 Xxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx
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.
C-1
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 Xxxxx'x 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
C-2
"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]
C-3
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:
C-4
