EXHIBIT 1.1
U.S. $400,000,000
Maytag Corporation
Medium-Term Notes, Series D
Due From Nine Months to 30 Years From Date of Issue
DISTRIBUTION AGREEMENT
June 3, 1999
[Names of Agents]
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 $400,000,000 of its Medium-Term Notes,
Series D (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 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 1(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. 333-75827) in
respect of debt securities and warrants of the Company, including the
Notes, has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendments thereto, have been declared effective by the Commission.
Copies of the registration statement and any amendments thereto have
been delivered by the Company to the Agents. As used in this
Agreement, "Effective Time" means the respective dates and the times
as of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by the
Commission; and "Effective Date" means the respective applicable dates
of the Effective Time. As provided in Section 3(a), a prospectus
supplement relating to the Notes, the terms of the offering thereof
and the other matters set forth therein has been prepared and filed
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). In
addition, a preliminary prospectus supplement relating to the Notes,
the terms of the offering thereof, and the other matters set forth
therein also may be prepared and filed pursuant to Rule 424 under the
Securities Act. Such prospectus supplement, in the form filed on or
after the date of this Agreement pursuant to Rule 424, is referred to
in this Agreement as the "Prospectus Supplement", and any such
preliminary prospectus supplement in the form filed after the date of
this Agreement pursuant to Rule 424 is referred to as the "Preliminary
Prospectus Supplement." Any prospectus accompanied by a Preliminary
Prospectus Supplement is referred to in this Agreement, collectively
with such Preliminary Prospectus Supplement, as a "Preliminary
Prospectus." The registration statement referred to in this Section
1(a), as amended at the time of the applicable Representation Date,
including the exhibits thereto (but excluding Form T-1) and the
documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that
are incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act (the "Incorporated Documents"), is called the
"Registration Statement"; and the basic prospectus included therein
relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement or a Pricing
Supplement, is called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which
the Prospectus Supplement is first filed pursuant to Rule 424, the
term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in
either case including the Incorporated Documents. Any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual or interim report of the Company or other
documents filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement.
Notwithstanding the foregoing, any prospectus supplement prepared or
filed with respect to an offering pursuant to the Registration
Statement of securities other than the Notes shall not be deemed to
have supplemented the Prospectus. The Commission has not issued any
order suspending the effectiveness of the Registration Statement, and
no stop order has been initiated or threatened by the Commission.
(b) On the Effective Date, the Registration Statement conformed
in all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder (the "Rules and
Regulations"), and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and on each
Representation Date and at all times during each period during which,
in the opinion of counsel for the Agents, a prospectus relating to the
Notes is required to be delivered under the Securities Act (each a
"Marketing Period") and at the time of filing of the Prospectus
pursuant to Rule 424(b), the Prospectus will conform in all material
respects to the requirements of the Securities Act and the Rules and
Regulations, and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the Incorporated Documents, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and did not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and on each Representation Date, the Indenture
conformed and will conform in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations
thereunder; provided that no representation or warranty is made as to
(i) information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf
-2-
of any Agent specifically for inclusion therein or (ii) that part of
the Registration Statement which shall constitute the Form T-1 under
the Trust Indenture Act.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(d) The Notes have been duly authorized by the Company, and,
when the terms of the Notes and of their issuance and sale have been
duly established in accordance with the Indenture, this Agreement and
the applicable Purchase Agreement, if any, and the Notes have been
authenticated, issued and delivered in the manner provided in the
Indenture and paid for in accordance with this Agreement and the
applicable Purchase Agreement, if any, the Notes will be duly and
validly issued and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms;
the Indenture has been duly authorized and qualified under the Trust
Indenture Act and the Indenture constitutes a valid and legally
binding instrument, enforceable against the Company in accordance with
its terms, except to the extent enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles (whether considered in a proceeding in equity or at law);
the Indenture conforms and the Notes will conform to the descriptions
thereof in the Prospectus as amended or supplemented to relate to such
issuance of Notes;
(e) The issue and sale of the Notes, the compliance by the
Company with all of the provisions of the Notes, the Indenture, this
Agreement and any Purchase Agreement, and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(f) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Notes, the issue
and sale of the Notes or the consummation by the Company of the other
transactions contemplated by this Agreement or any Purchase Agreement
or the Indenture, except such as have been, or will have been prior to
the Closing Date, obtained under the Securities Act or the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the solicitation by the
Agents of offers to purchase Notes from the Company and with purchases
of Notes by an Agent as principal, as the case may be, in each case in
the manner contemplated hereby;
(g) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would
reasonably be expected to have a material adverse effect on the
business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the capital
stock (other than issuances of common stock pursuant to benefit plans
or stock options, repurchases by the Company, conversion of
outstanding convertible securities or the issuance of an aggregate of
289,239 shares of common stock in connection with certain acquisition
transactions) or long-term debt (except changes as a result of
maturities, sinking fund payments, amortization of debt discount,
currency fluctuations or the
-3-
issuance of $24,000,000 aggregate principal amount of the Company's
Medium Term Notes, Series B) of the Company or any of its subsidiaries
(otherwise than as set forth or contemplated in the Prospectus) or any
material adverse change in or affecting, or any adverse development
which materially affects, 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 others to purchase through any agents other than the Agents.
It is understood that if from time to time the Company is approached
by a prospective agent offering a specific purchase of Notes, the
Company may engage such agent with respect to such specific purchase
provided that (i) such agent is engaged on terms substantially similar
(including the same commission schedule) to the applicable terms of
this Agreement and (ii) the Agents are given notice of such purchase
before it is consummated. The Company expressly reserves the right to
sell Notes directly to investors, provided that such sales are made in
compliance with all applicable laws, in which case the Agents shall
not receive any commission with respect to such sale. Each Agent also
may purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right,
in its sole discretion, to suspend solicitation of offers to purchase
the Notes commencing at any time for any period of time or
indefinitely. Upon receipt of at least one business day's prior
written notice from the Company, the Agents shall suspend solicitation
of offers to purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
For the purpose of
-4-
this Agreement, "business day" shall mean any day which is not a
Saturday or Sunday and which is not a day on which The New York Stock
Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by
Sections 3(a) and 3(j), each Agent shall suspend its solicitation of
offers to purchase Notes until such time as the Company shall have
furnished such Agent with an amendment or supplement to the
Registration Statement or the Prospectus, as the case may be,
contemplated by Sections 3(a) and 3(j) and shall have advised such
Agent that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of
any Notes sold by the Company as a result of a solicitation made by or
offer to purchase received by an Agent, the Company agrees to pay such
Agent a commission, in accordance with the schedule set forth in
Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in such denominations as are
specified in the Prospectus at a purchase price as shall be specified
by the Company. Each Agent shall communicate to the Company promptly,
orally or in writing, each offer to purchase Notes received by it as
an Agent; provided, however, that each Agent shall have the right, in
its discretion reasonably exercised without advising the Company, to
reject any offer to purchase the Notes received by it, in whole or in
part, and any such rejection shall not be deemed a breach of its
agreement contained herein. The Company shall have the sole right to
accept offers to purchase the Notes and may reject any such offer in
whole or in part.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold
by the Company, until such Note shall have been delivered to the
purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, shall be made in accordance with the terms of this
Agreement and a Purchase Agreement whether oral (and confirmed in
writing by such Agent and the Company which may be by facsimile
transmission) or in writing, which will provide for the sale of such
Notes to, and the purchase thereof by, such Agent. A Purchase
Agreement also may specify certain provisions relating to the
reoffering of such Notes by such Agent. The commitment of any Agent to
purchase Notes from the Company as principal shall be deemed to have
been made on the basis of the representations and warranties of the
Company contained in this Agreement and shall be subject to the terms
and conditions of this Agreement. Each Purchase Agreement shall
specify the principal amount and terms of the Notes to be purchased by
an Agent, the time and date (each such time and date being referred to
herein as a "Time of Delivery") and place of delivery of and payment
for such Notes and such other information (as applicable) as is set
forth in Exhibit C. The Company agrees that if any Agent purchases
Notes as principal such Agent shall receive such compensation, in the
form of a discount or otherwise, as shall be indicated in the
applicable Purchase Agreement or, if no compensation is indicated
therein, a commission in accordance with Exhibit A. Any Agent may
utilize a selling or dealer group in connection with the resale of
such Notes. In addition, the Agents may offer the Notes they have
purchased as principal to other dealers. Any Agent may sell Notes to
any dealer at a discount. Such Purchase Agreement also shall specify
any requirements for delivery of opinions of counsel, accountants'
letters and officers' certificates pursuant to Section 5.
(f) Administrative Procedures. Administrative procedures
respecting the sale of Notes (the "Procedures") are set forth in
Exhibit B and may be amended in writing from time to time by the
Agents and the Company. Each Agent and the Company agree to perform
the respective duties and obligations specifically provided to be
performed by each of them in this Agreement and in the Procedures. The
Procedures shall apply to all transactions contemplated hereunder
other than sales of Notes to any Agent as principal pursuant to a
Purchase Agreement. The Company will furnish to the Trustee a copy of
the Procedures as from time to time in effect.
-5-
(g) Delivery of Documents. The documents required to be
delivered by Section 5 shall be delivered at the offices of Sidley &
Austin, One First National Plaza, Chicago, Illinois, not later than
10:00 A.M., Chicago time, on the date of this Agreement or at such
later time as may be mutually agreed upon by the Company and the
Agents, which in no event shall be later than the time at which the
Agents commence solicitation of offers to purchase Notes hereunder
(the "Closing Date").
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 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;
-6-
(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 earning statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) So long as any Notes are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to stockholders and deliver to such Agent as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed
(such financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) Promptly from time to time, to take such action as the
Agents reasonably may request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Notes; provided,
however, that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to subject itself
to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject;
(i) Between the date of a Purchase Agreement and the date
of delivery of the Notes with respect thereto, not to offer for sale,
sell or cause to be offered for sale or sold, without the prior
written consent of each Agent which is a party to such Purchase
Agreement, any debt securities which are substantially similar to the
Notes;
(j) If, during any Marketing Period, any event occurs
as a result of which the Prospectus would include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at
any time to amend or supplement any Prospectus to comply with the
Securities Act, to notify the Agents promptly, in writing, to suspend
solicitation of purchases of the Notes; and if the Company shall
decide to amend or supplement the Registration Statement or any
Prospectus, to advise the Agents promptly by telephone (with
confirmation in writing) and to prepare and file with the Commission
promptly an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance;
provided, however, that if during the period referred to above any
Agent shall own any Notes which it has purchased from the Company as
principal with the intention of reselling them and the Agent has held
such Notes for fewer than 180 days or the Company has accepted an
offer to purchase the Notes but the related settlement has not
occurred, the Company shall promptly prepare and timely file with the
Commission any amendment or supplement to the Registration Statement
or any Prospectus that may be required by the Securities Act, in the
judgment of the Company or the Agents, or requested by the Commission;
(k) To prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes and to file such Pricing
Supplement pursuant to Rule 424 under the Securities Act with the
Commission, in each case within the applicable time period prescribed
for such filing by the Rules and Regulations; and
(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
-7-
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 distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereto (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus and
any Incorporated Documents; (d) the costs of reproducing and distributing this
Agreement and any Purchase Agreement; (e) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of sale of the Notes, if necessary; (f) any applicable stock exchange
listing or other fees; (g) the fees and expenses of filings, if any, with
foreign securities administrators and of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(h) and of
preparing, reproducing and distributing a Blue Sky Memorandum (including related
fees (in an amount not to exceed $15,000) and disbursements of counsel to the
Agents); (h) the fees paid to rating agencies in connection with the rating of
the Notes; (i) the costs of printing and issuance of certificates, if any; (j)
reasonable fees and disbursements of the Trustee and any transfer agent, any
paying agent, any calculation agent, any exchange rate agent and any other
agents appointed by the Company, and their respective counsel; (k) the
reasonable fees and disbursements of counsel to the Company and counsel to the
Agents; (l) all advertising expenses in connection with the offering of the
Notes incurred with the consent of the Company; and (m) all other reasonable
costs and expenses arising out of the transactions contemplated hereunder and
incident to the performance of the obligations of the Company under this
Agreement or otherwise in connection with the activities of the Agents under
this Agreement.
5. Conditions of the Agents' Obligations. The obligation of
the Agents, as the agents of the Company, under this Agreement to solicit offers
to purchase the Notes, the obligation of any person who has agreed to purchase
Notes to make payment for and take delivery of Notes, and the obligation of any
Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the
accuracy, on each Representation Date, of the representations and warranties of
the Company contained in this Agreement, to the accuracy of the statements of
the Company's officers made in any certificate furnished pursuant to the
provisions of this Agreement, to the performance by the Company of its
obligations under this Agreement and to each of the following additional terms
and conditions:
(a) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to the Notes shall have been filed with
the Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 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) __________, counsel to the Agents, shall have furnished to
such Agent such opinion or opinions, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Indenture, the
Notes, the Registration Statement, the Prospectus and other related matters
as such Agent may reasonably request; and such counsel shall have received
such papers and information as they may reasonably request to enable them
to pass upon such matters;
(c) The General Counsel of the Company or other counsel for the
Company satisfactory to the Agents shall have furnished to such Agent their
written opinions, dated the Closing Date, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has the authorized equity capitalization as
set forth in the Prospectus;
-8-
(ii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(iii) To such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject, other than
proceedings which would not reasonably be expected,
individually or in the aggregate, to have a material adverse
effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase
Agreement have been duly authorized, executed and delivered by
the Company;
(v) The Notes have been duly authorized by the Company
and, when the terms of the Notes and of their issuance and
sale have been duly established in accordance with the
Indenture (including any supplemental indenture thereto), this
Agreement and the applicable Purchase Agreement, if any, and
when each of the Notes has been duly executed, authenticated,
issued and delivered in the manner provided in the Indenture
(including any supplemental indenture thereto) and paid for in
accordance with this Agreement and the applicable Purchase
Agreement, if any, such Note will be duly and validly issued
and will constitute a valid and legally binding obligation of
the Company entitled to the benefits of the Indenture
(including any supplemental indenture thereto) and enforceable
against the Company in accordance with its terms, except to
the extent enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally or by general equitable principles
(whether considered in a proceeding in equity or at law); and
the Indenture (including any supplemental indenture thereto)
and the Notes conform in all material respects to the
descriptions thereof in the Prospectus;
(vi) The Indenture (including any supplemental indenture
thereto) has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and
delivery by the Trustee, the Indenture constitutes a valid and
legally binding obligation of the Company enforceable against
the Company in accordance with its terms, except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally or by general equitable principles (whether
considered in a proceeding in equity or at law); and the
Indenture has been duly qualified under the Trust Indenture
Act;
(vii) The issue and sale of the Notes, the compliance by
the Company with all of the provisions of the Notes, the
Indenture (including any supplemental indenture thereto), this
Agreement and any applicable Purchase Agreement and the
consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject,
nor will such actions result in any violation of the
provisions of the Certificate of Incorporation, as amended, or
By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or any
governmental agency or body is required for the solicitation
of offers to purchase the Notes, the issue and sale of the
Notes or the consummation by the Company of the transactions
contemplated by this Agreement, any applicable Purchase
Agreement, or the Indenture (including
-9-
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 Trust Indenture
Act, the Exchange Act and the applicable rules and regulations
under said Acts;
(x) To such counsel's knowledge, there are no
contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been so filed;
and
(xi) The Registration Statement was declared
effective under the Securities Act on April 30, 1999; 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 our knowledge, no stop order suspending
the effectiveness of the Registration Statement has been
issued, to our 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.
-10-
(d) The Company shall have furnished to the Agents on the
Closing Date a letter of Ernst & Young LLP, addressed jointly to the
Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, and covering such additional
financial statement items and procedures (including a review of interim
financial statements specified in the American Institute of Certified
Public Accountants' Statement on Auditing Standards No. 71) as the
Agents may reasonably request and in form and substance satisfactory to
the Agents.
(e) The Company shall have furnished to the Agents a
certificate, dated the Closing Date, of its Chief Financial Officer or
Treasurer and its General Counsel or other counsel stating that the
representations and warranties of the Company in Section 1 of this
Agreement are true and correct as of such date; the Company has
performed all of its agreements contained in this Agreement which are
required to be performed on or before the date of such certificate and
the condition 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;
and
(h) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any downgrading in the
rating accorded the Company's debt securities by Moody's Investor
Service, Inc., Standard & Poors Corporation or Duff and Phelps, Inc. 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
-11-
Company contained in this Agreement and in any certificate given to the Agents
pursuant hereto are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent of the Notes relating to such
acceptance as though made at and as of each such time (and such representations
and warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented at each such time).
(b) Subsequent Delivery of Officers' Certificates. During each
Marketing Period, each time (i) that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by (A) a Pricing
Supplement, (B) an amendment or supplement which relates exclusively to an
offering of securities other than the Notes, or (C) except as set forth in (ii)
and (iii) below, an amendment or supplement by the filing of an Incorporated
Document), (ii) the Company files with the Commission an Annual Report on Form
10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K which
contains financial information required to be set forth in or incorporated by
reference into the Prospectus pursuant to Item 11 of Form S-3 under the
Securities Act, (iii) the Agents reasonably request following the filing by the
Company with the Commission of an Incorporated Document (other than as specified
in the preceding clause (ii)) or (iv) the Company sells Notes to an Agent as
principal and the applicable Purchase Agreement specifies the delivery of an
officers' certificate under this Section 6(b) as a condition to the purchase of
Notes pursuant to such Purchase Agreement, the Company shall, promptly following
such amendment or supplement, filing of such Annual Report, Quarterly Report or
Current Report that is incorporated by reference into the Prospectus or request
by the Agents, or concurrently with the Time of Delivery relating to such sale,
furnish to the Agents a certificate as of the date of such amendment,
supplement, filing or Time of Delivery relating to such sale or if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, representing that the
statements contained in the certificate referred to in Section 5(e) which was
last furnished to the Agents are true and correct as of the date of such
certificate as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and each Prospectus as
amended and supplemented to such time), or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in Section 5(e),
modified as necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented (other than by (A) a Pricing Supplement, (B) an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes, or (C) except as set forth in (ii) and (iii) below, an
amendment or supplement by the filing of an Incorporated Document), (ii) the
Company files with the Commission an Annual Report on Form 10-K, a Quarterly
Report on Form 10-Q or a Current Report on Form 8-K which contains financial
information required to be set forth in or incorporated by reference into the
Prospectus pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the
Agents reasonably request following the filing by the Company with the
Commission of an Incorporated Document (other than as specified in the preceding
clause (ii)) or (iv) the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a legal opinion under
this Section 6(c) as a condition to the purchase of Notes pursuant to such
Purchase Agreement, the Company shall, promptly following such amendment or
supplement, filing of such Annual Report, Quarterly Report or Current Report
that is incorporated by reference into the Prospectus or request by the Agents,
or concurrently with the Time of Delivery relating to such sale, or if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinion of counsel to the Company specified in Section
5(c), addressed to the Agents and dated the date of delivery of such opinion, in
form satisfactory to the Agents, to the same effect as the opinion referred to
in Section 5(c) hereof, but modified, as necessary, to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such opinion; provided, however, that in lieu of such
opinion, counsel may furnish the Agents with a letter to the effect that the
Agents may rely on a prior opinion to the same extent as though such prior
opinion were dated the date of such letter authorizing reliance (except that
statements in such prior opinion shall be deemed to relate to the Registration
Statement and each Prospectus as amended or supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented to include additional financial information (other than
by (A) a Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes, or (C) except as
set forth in (ii) and (iii) below, an amendment or
-12-
supplement by the filing of an Incorporated Document), (ii) the Company files
with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Current Report on Form 8-K which contains financial information
required to be set forth in or incorporated by reference into the Prospectus
pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents
reasonably request following the filing by the Company with the Commission of an
Incorporated Document (other than as specified in the preceding clause (ii)) or
(iv) the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a letter under this Section 6(d) as
a condition to the purchase of Notes pursuant to such Purchase Agreement, the
Company shall cause Ernst & Young LLP (or other independent accountants of the
Company acceptable to the Agents) to furnish the Agents, promptly following such
amendment or supplement, filing of such Annual Report, Quarterly Report or
Current Report that is incorporated by reference into the Prospectus or request
by the Agents, or concurrently with the Time of Delivery relating to such sale,
or if such amendment, supplement, or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, a letter,
addressed as provided in Section 5(d) and dated the date of delivery of such
letter, in form and substance reasonably satisfactory to the Agents, to the same
effect as the letter referred to in Section 5(d) but modified to relate to the
Registration Statement and each Prospectus, as amended and supplemented to the
date of such letter, with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company or other relevant corporation.
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,
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
-13-
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of that Agent
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Agent may otherwise have to the Company or any such director, officer
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, if a claim
in respect thereof is to be made against the indemnifying party under this
Section 7 the indemnified party shall notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve the indemnifying
party from any liability which the indemnifying party may have to an indemnified
party (i) unless and to the extent that such failure results in the forfeiture
by the indemnifying party of rights and defenses and (ii) otherwise than under
this Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that the Agents shall have the right to employ counsel to represent
jointly the Agents and their respective controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Agents against the Company under this Section 7, if, in the
reasonable judgment of the Agents, there are legal defenses available to them
which are different from or in addition to those available to such indemnifying
party (it being understood that the Company shall not, in connection with any
one such claim or action or separate but substantially similar or related claims
or actions in the same jurisdiction arising out of the same allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (other than local counsel which shall be engaged only
for purposes of appearing with such counsel in such jurisdictions in which such
firm of attorneys is not licensed to practice)), and in that event the fees and
expenses of such separate counsel shall be paid by the Company. Anything in this
Section 7(c) to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without its written
consent which shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Agents on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law or if the indemnified party failed to give the
notice required by the first sentence of Subsection 7(c), in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Agents on the other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof and with
respect to the failure of the indemnified party to give such notice, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and any Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Notes (before deducting expenses) received by the Company
bear to the total commissions received by such Agent with respect to such
offering. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or any Agent, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by
-14-
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) are several and not
joint.
(e) The Agents severally confirm that the statements with
respect to the public offering of the Notes under the caption "Supplemental Plan
of Distribution" in the Prospectus are correct and constitute the only
information furnished in writing to the Company by or on behalf of the Agents
specifically for inclusion in the Registration Statement and the Prospectus.
8. Status Of Each Agent. In soliciting offers to purchase the
Notes from the Company pursuant to this Agreement (other than in respect of any
Purchase Agreement), each Agent is acting individually and not jointly and is
acting solely as agent for the Company and not as principal. Each Agent will
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company has been solicited by
such Agent and accepted by the Company but such Agent shall have no liability to
the Company in the event any such purchase is not consummated for any reason. If
the Company shall default in its obligations 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
__________, shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to __________, Attention: __________,
if to __________, shall be sufficient in all respects when delivered or sent by
telex, facsimile transmission or registered mail to __________, Attention:
__________, Fax: __________, if to __________, shall be sufficient in all
respects when delivered or sent by telex, facsimile transmission or registered
mail to __________, Attention: __________, Fax: __________, if to __________,
shall be sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to __________, Attention: __________, Fax:
__________, and if to the Company shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to the address of
the Company set forth in the Registration Statement, Attention: Treasurer, Fax:
(515) 787-8578.
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Agents and the Company and
their respective successors. This Agreement is for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement also shall be deemed to be
for the benefit of the person or persons, if any, who control
-15-
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.
-16-
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:___________________________
Title:
Name:
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:_________________________________________
Title:
By: ________________________________________
Title:
By:_________________________________________
Title:
By: _________________________________________
Title:
-17-
Exhibit A
Maytag Corporation
Medium-Term NOTES, Series D
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 months 0.200%
======================================================
2 years to less than 3 months 0.250%
======================================================
3 years to less than 4 months 0.350%
======================================================
4 years to less than 5 months 0.450%
======================================================
5 years to less than 6 months 0.500%
======================================================
6 years to less than 7 months 0.550%
======================================================
7 years to less than 10 months 0.600%
======================================================
10 years to less than 15 months 0.625%
======================================================
15 years to less than 20 months 0.675%
======================================================
20 years to 30 year 0.750%
======================================================
-18-
EXHIBIT B
MAYTAG CORPORATION
MEDIUM-TERM NOTES, SERIES D, ADMINISTRATIVE PROCEDURES
___________
June 3, 1999
The Medium-Term Notes, Series D, Due from Nine Months to 30 Years from
Date of Issue (the "Notes") of Maytag Corporation (the "Company") are to be
offered on a continuing basis. Salomon Smith Barney Inc., Goldman, Sachs & Co.,
Lehman Brothers Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated as agents (each an "Agent"), have agreed to solicit purchases
of Notes issued in fully registered form. The Agents will not be obligated to
purchase Notes for their own account. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents (the "Distribution
Agreement"). The Notes will rank equally with all other unsecured and
unsubordinated debt of the Company and have been registered with the Securities
and Exchange Commission (the "Commission"). The Notes will be issued under an
Indenture date as of June 15, 1987, as supplemented from time to time (the
"Indenture"), between the Company and 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
19
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are
explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture and the
Notes shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes." Notes for which interest is calculated
on the basis of a floating interest rate are referred to herein as "Floating
Rate Notes." To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture, DTC's operating requirements or the
Distribution Agreement, the relevant provisions of the Notes, the Indenture,
DTC's operating requirements and the Distribution Agreement shall control.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES.
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC, dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of
May 26, 1989, and its obligations as a participant in DTC, including DTC's Same-
Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") having an aggregate
initial offering price not to exceed $400,000,000 (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
20
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.
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
21
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.
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
22
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 $200,000,000 (or its equivalent in one or more
foreign currencies) in aggregate principal amount, one
Global Security will be authenticated and issued to
represent each $200,000,000 (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.
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 $200,000,000 (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
23
aggregate principal amount in excess of $200,000,000 (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 $200,000,000 (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.
Regular Record Dates. Unless otherwise specified in a Book-
Entry Note, the Regular Record Date with respect to any
Interest
24
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
25
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.
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
26
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.
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
27
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.
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
28
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 not 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.
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
29
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 50 days (but not 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, or Spread and/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.
Acceptance and
Rejection of
Offers: Unless otherwise instructed by the Company, each Agent will
advise the Company promptly by
30
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 by the Company and each
of the Agents, the Company has the sole right to accept
offers to purchase Book-Entry Notes and may reject any such
offer in whole or in part.
Preparation
of Pricing
Supplement: If any offer to purchase a Book-Entry Note is accepted by or
on behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of
such Note and will arrange to have such Pricing Supplement
filed with the Commission via EDGAR in accordance with the
applicable paragraph of Rule 424(b) under the Act and will
supply at least ten copies thereof (and additional copies if
requested) to the Agent which presented the offer (the
"Presenting Agent"), The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to the
purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
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 Statements (as defined in the Distribution
Agreement) or the Prospectus, it will promptly advise each
Agent and will
31
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.
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.
32
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.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry Note
sold by the Company through an Agent, as agent, shall be as
follows:
33
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 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. 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
34
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 $400,000,000 (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).
35
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.
36
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
J. The Trustee will, upon receipt of funds from the
Presenting Agent in accordance with Settlement
Procedure "G", wire transfer to or credit the account
of the Company maintained at Harris Trust and Savings
Bank, ABA #071000288, Account Number 336-159-9, in
funds available for immediate use, in the amount
transferred to the Trustee in accordance with
Settlement Procedure "G."
K. The Presenting Agent will confirm the purchase of such
Book-Entry Note to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent, 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 settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
37
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day after the sale
date and no later than 2:00 P.M. on the Business Day before
the settlement date, respectively. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement
Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure to
Settle: If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such Book-Entry
Note to the Trustee's participant account. DTC will process
the withdrawal message, provided that the Trustee's
participant account contains a principal amount of the
Global Security representing such Book-Entry Note that is at
least equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, the
Trustee will cancel such Global Security in accordance with
the Indenture, make appropriate entries in the Trustee's
records and so advise the
38
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 Procedures "H" and
respectively. 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
39
account maintained by the Company at Harris Trust and
Savings Bank. The Trustee shall give the Company notice of
said withdrawal one hour prior thereto or such lesser time
prior thereto as is practicable under the circumstances. In
the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedure "E" for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
40
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.
41
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).
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
42
monthly, quarterly, semi-annually or annually. Interest will
be payable, in the case of Floating Rate Certificated Notes
that reset daily, weekly or monthly, on the third Wednesday
of each month; that reset quarterly, on the third Wednesday
of March, June, September and December of each year; that
reset semiannually, on the third Wednesday of the two months
specified pursuant to Settlement Procedure "A" below; and
that reset annually, on the third Wednesday of the month
specified pursuant to Settlement Procedure "A" below;
provided, however, that if an Interest Payment Date for a
Floating Rate Certificated Note would otherwise be a day
that is not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Note, except that in the case of
a Floating Rate Certificated Note for which the Interest
Rate Basis is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will
be the immediately preceding London Business Day; and
provided further, that in the case of a Floating Rate
Certificated Note issued between a Regular Record Date and
an Interest Payment Date or on an Interest Payment Date, the
first interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record Date.
Calculation of
Interest: Fixed Rate Certificated Notes. Interest on Fixed Rate
Certificated Notes (including interest for partial periods)
will be calculated on the basis of a 360-day year of twelve
30-day months.
Floating Rate Certificated Notes. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in
the form of Notes. Interest on Floating Rate Certificated
Notes, except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and a year of
360 days, except that in the case of a Floating Rate
Certificated Note for which the Interest Rate Basis is the
CMT Rate or the Treasury Rate, interest will be calculated
on the basis of the actual number of days in the year.
43
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.
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.
44
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.
45
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 Notice 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 50 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.
46
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 by the Company and each of the Agents, the Company
has the sole right to accept offers to purchase Notes and
may reject any such offer in whole or in part. Before
accepting any offer to purchase a Certificated Note to be
settled in less than three Business Days, the Company shall
verify that the Trustee will have adequate time to prepare
and authenticate such Note.
Preparation of
Pricing
Supplement: If any offer to purchase a Certificated Note is accepted by
or on behalf of the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to have such Pricing
Supplement filed with the Commission via EDGAR in accordance
with the applicable paragraph of Rule 424(b) under the Act
and will supply at least ten copies thereof (and additional
copies if requested) to the Agent which presented the order
(the "Presenting Agent"). The Presenting Agent will cause a
Prospectus and Pricing Supplement to be
47
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.
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.
48
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.
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).
49
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.
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.
50
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. 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
51
exceed $400,000,000 (or its equivalent in one or more
foreign currencies).
C. The Company will deliver to the Trustee a pre-printed
four-ply packet for such Certificated Note, which
packet will contain the following documents in forms
that have been approved by the Company, the Agents and
the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated Note and
authenticate such Certificated Note and deliver it
(with the confirmation) and Stubs One and Two to the
Presenting Agent, all in accordance with the written
directions (or oral instructions confirmed in writing
on the next Business Day) of the Company, and the
Presenting Agent will acknowledge receipt of the Note
by stamping or otherwise marking Stub One and returning
it to the Trustee. Such delivery will be made only
against such acknowledgment of receipt. In the event
that the instructions given by the Presenting Agent for
payment to the account of the Company are revoked, the
Company will as promptly as possible wire transfer to
the account of the Presenting Agent an amount of
immediately available funds equal to the amount of such
payment made.
E. The Presenting Agent will deliver such Certificated
Note (with the confirmation) to the customer against
payment in immediately payable funds. The Presenting
Agent will obtain the acknowledgment of receipt of such
Certificated Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail.
52
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 day before settlement date
B-C 3:00 P.M. on day before settlement date
D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to 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.
53
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
54
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.
55
EXHIBIT C
PURCHASE AGREEMENT
------------------
Maytag Corporation _______________, ____
403 West Fourth Street North
Newton, Iowa 50208
Attention: David D. Urbani
Vice President and Treasurer
The undersigned agrees to purchase the following principal
amount of the Notes described in the Distribution Agreement dated June 3, 1999
(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: ______________________________
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 (a)
the opinions referred to in Section 6(c) of the Distribution Agreement, (b) the
applicable letter referred to in Section 6(d) of the Distribution Agreement, (c)
the certificate referred to in Section 6(b) of the Distribution Agreement, in
each case dated as of the above Settlement Date and (d) and such further
information, certificates and documents as the Agents or counsel to the Agents
may reasonably request. Terms defined in the Prospectus relating to the Notes
and in the Distribution Agreement shall have the same meanings when used herein.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, you will not,
without our prior written consent, offer or sell, or enter into any agreement to
sell, any debt securities of the Company which are substantially similar to the
Notes.
56
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 Securities, 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 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 Notes as principal pursuant to this Agreement; or
(c) Subsequent to the execution and delivery of this
Agreement, (i) any downgrading shall have occurred in the rating
accorded the Company's debt securities by Moody's Investors Service,
Inc., Standard & Poor's Corporation or Duff and Phelps, Inc. 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.
57
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:
58