<PAGE>
============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 20, 1996
-------------------------------
MAYTAG CORPORATION
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 1-655 42-0401785
- ---------------------------- ------------------------- -------------------------
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
403 WEST FOURTH STREET NORTH
NEWTON, IOWA 50208
- --------------------------------------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
Registrant's telephone number, including area code: (515) 792-8000
-----------------------------
N/A
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.)
================================================================================
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired:
Not applicable.
(b) Pro forma financial information:
Not applicable.
(c) Exhibits:
In accordance with the provisions of Item 601 of Regulation S-K,
attached as exhibits 1.1, 4.1, 4.2 and 4.3, respectively, are the following
which are each incorporated by reference herein:
1. Form of Distribution Agreement Relating to the Registrant's Medium-Term
Notes, Series B;
2. Third Supplemental Indenture dated as of August 20, 1996 between the
Registrant and The First National Bank of Chicago, as Trustee;
3. Form of the Note Relating to the Registrant's Medium-Term Notes, Series B,
Fixed Rate; and
4. Form of the Note Relating to the Registrant's Medium-Term Notes, Series B,
Floating Rate.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MAYTAG CORPORATION
Date: August 20, 1996
By: /s/ Gerald J. Pribanic
-----------------------------------
Gerald J. Pribanic
Executive Vice President and
Chief Financial Officer
-3-
<PAGE>
EXHIBIT INDEX
The following exhibits are filed herewith:
Exhibit
No. Description
------- -----------
1.1 Form of Distribution Agreement Relating to the Registrant's Medium-Term
Notes, Series B.
4.1 Third Supplemental Indenture dated as of August 20, 1996 between the
Registrant and The First National Bank of Chicago, as Trustee.
4.2 Form of the Note Relating to the Registrant's Medium-Term Notes, Series
B, Fixed Rate.
4.3 Form of the Note Relating to the Registrant's Medium-Term Notes, Series
B, Floating Rate.
-4-
<PAGE>
Exhibit 1.1
U.S. $150,000,000
Maytag Corporation
Medium-Term Notes, Series B
Due From Nine Months to 30 Years From Date of Issue
DISTRIBUTION AGREEMENT
____________, 1996
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
Dear Sirs:
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 $150,000,000 of its Medium-Term Notes,
Series B (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. 33-35219) 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
<PAGE>
2
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
<PAGE>
3
the statements therein, in the light of the circumstances under which they were
made, not misleading; and on each Representation Date, the Indenture conformed
and will conform in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
applicable rules and regulations thereunder; provided that no representation or
warranty is made as to (i) information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Agent
specifically for inclusion therein or (ii) that part of the Registration
Statement which shall constitute the Form T-1 under the Trust Indenture Act.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(d) The Notes have been duly authorized by the Company, and, when the terms
of the Notes and of their issuance and sale have been duly established in
accordance with the Indenture, this Agreement and the applicable Purchase
Agreement, if any, and the Notes have been authenticated, issued and delivered
in the manner provided in the Indenture and paid for in accordance with this
Agreement and the applicable Purchase Agreement, if any, the Notes will be duly
and validly issued and will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms; the Indenture has been duly
authorized and qualified under the Trust Indenture Act and the Indenture
constitutes a valid and legally binding instrument, enforceable against the
Company in accordance with its terms, except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally or by general equitable principles (whether
considered in a proceeding in equity or at law); the Indenture conforms and the
Notes will conform to the descriptions thereof in the Prospectus as amended or
supplemented to relate to such issuance of Notes;
(e) The issue and sale of the Notes, the compliance by the Company with all
of the provisions of the Notes, the Indenture, this Agreement and any Purchase
Agreement, and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation, as amended, or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties;
(f) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the solicitation of offers to purchase Notes, the issue and sale of the
Notes or the consummation by the Company of the other transactions contemplated
by this Agreement or any Purchase Agreement or the Indenture, except such as
have been, or will have been prior to the Closing Date, obtained under the
Securities Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the solicitation by the Agents of
offers to purchase Notes from the Company and with purchases of Notes by an
Agent as principal, as the case may be, in each case in the manner contemplated
hereby;
(g) Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
which would reasonably be expected to have a material adverse effect on the
business, properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus; and, since such date, there has
not been
<PAGE>
4
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 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, in which case the Agents shall not receive any
commission with respect to such sale. Each Agent also may purchase Notes from
the Company as principal for purposes of resale, as more fully described in
paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Notes commencing
at any time for any period of time or indefinitely. Upon receipt of at least one
business day's prior written notice from the Company, the Agents shall suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed. For the
purpose of this Agreement, "business day" shall mean any day which is not a
Saturday or Sunday and which is not a day on which The New York Stock Exchange,
Inc. is closed for trading.
<PAGE>
5
Upon receipt of notice from the Company as contemplated by Sections 3(a)
and 3(j), each Agent shall suspend its solicitation of offers to purchase Notes
until such time as the Company shall have furnished such Agent with an amendment
or supplement to the Registration Statement or the Prospectus, as the case may
be, contemplated by Sections 3(a) and 3(j) and shall have advised such Agent
that such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any Notes
sold by the Company as a result of a solicitation made by or offer to purchase
received by an Agent, the Company agrees to pay such Agent a commission, in
accordance with the schedule set forth in Exhibit A.
(d) Solicitation of Offers. The Agents are authorized to solicit offers to
purchase the Notes only in such denominations as are specified in the Prospectus
at a purchase price as shall be specified by the Company. Each Agent shall
communicate to the Company promptly, orally or in writing, each offer to
purchase Notes received by it as an Agent; provided, however, that each Agent
shall have the right, in its discretion reasonably exercised without advising
the Company, to reject any offer to purchase the Notes received by it, in whole
or in part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company shall have the sole right to accept offers to
purchase the Notes and may reject any such offer in whole or in part.
No Note which the Company has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Company,
until such Note shall have been delivered to the purchaser thereof against
payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal,
shall be made in accordance with the terms of this Agreement and a Purchase
Agreement whether oral (and confirmed in writing by such Agent and the Company
which may be by facsimile transmission) or in writing, which will provide for
the sale of such Notes to, and the purchase thereof by, such Agent. A Purchase
Agreement also may specify certain provisions relating to the reoffering of such
Notes by such Agent. The commitment of any Agent to purchase Notes from the
Company as principal shall be deemed to have been made on the basis of the
representations and warranties of the Company contained in this Agreement and
shall be subject to the terms and conditions of this Agreement. Each Purchase
Agreement shall specify the principal amount and terms of the Notes to be
purchased by an Agent, the time and date (each such time and date being referred
to herein as a "Time of Delivery") and place of delivery of and payment for such
Notes and such other information (as applicable) as is set forth in Exhibit C.
The Company agrees that if any Agent purchases Notes as principal such Agent
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no compensation
is indicated therein, a commission in accordance with Exhibit A. Any Agent may
utilize a selling or dealer group in connection with the resale of such Notes.
In addition, the Agents may offer the Notes they have purchased as principal to
other dealers. Any Agent may sell Notes to any dealer at a discount. Such
Purchase Agreement also shall specify any requirements for delivery of opinions
of counsel, accountants' letters and officers' certificates pursuant to Section
5.
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B and may be amended
in writing from time to time by the Agents and the Company. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in this Agreement and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder other than sales of Notes to any Agent as principal pursuant to a
Purchase Agreement. The Company will furnish to the Trustee a copy of the
Procedures as from time to time in effect.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 shall be delivered at the offices of Sidley & Austin, 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
<PAGE>
6
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;
<PAGE>
7
(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; and
(k) To prepare, with respect to any Notes to be sold through or to the
Agents pursuant to this Agreement, a Pricing Supplement with respect to such
Notes and to file such Pricing Supplement pursuant to Rule 424 under the
Securities Act with the Commission, in each case within the applicable time
period prescribed for such filing by the Rules and Regulations.
(l) If the Company commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date hereof or if
the information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Florida Department of Banking and
Finance (the "Department") notice of such business or change, as appropriate, in
a form acceptable to the Department.
4. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of 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
<PAGE>
8
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;
(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
<PAGE>
9
operations of the Company and its subsidiaries taken as a whole; and, to
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase Agreement have
been duly authorized, executed and delivered by the Company;
(v) The Notes have been duly authorized by the Company and, when
the terms of the Notes and of their issuance and sale have been duly
established in accordance with the Indenture (including any supplemental
indenture thereto), this Agreement and the applicable Purchase Agreement,
if any, and when each of the Notes has been duly executed, authenticated,
issued and delivered in the manner provided in the Indenture (including
any supplemental indenture thereto) and paid for in accordance with this
Agreement and the applicable Purchase Agreement, if any, such Note will be
duly and validly issued and will constitute a valid and legally binding
obligation of the Company entitled to the benefits of the Indenture
(including any supplemental indenture thereto) and enforceable against the
Company in accordance with its terms, except to the extent enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally or by general equitable
principles (whether considered in a proceeding in equity or at law); and
the Indenture (including any supplemental indenture thereto) and the Notes
conform in all material respects to the descriptions thereof in the
Prospectus;
(vi) The Indenture (including any supplemental indenture thereto)
has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee, the
Indenture constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except to the extent enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally or by general equitable principles (whether considered in a
proceeding in equity or at law); and the Indenture has been duly qualified
under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the
Company with all of the provisions of the Notes, the Indenture (including
any supplemental indenture thereto), this Agreement and any applicable
Purchase Agreement and the consummation of the transactions herein and
therein contemplated will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company
is subject, nor will such actions result in any violation of the provisions
of the Certificate of Incorporation, as amended, or By-laws of the Company
or any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or any governmental agency or body is
required for the solicitation of offers to purchase the Notes, the issue
and sale of the Notes or the consummation by the Company of the
transactions contemplated by this Agreement, any applicable Purchase
Agreement, or the Indenture (including any supplemental indenture thereto),
except such as have been obtained under the Securities Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the solicitation by the Agents of offers to
purchase the Notes from the Company and with purchases of the Notes by an
Agent as principal, as the case may be, in each case in the manner
contemplated hereby;
(ix) As of the Effective Time, the Registration Statement
(including all documents incorporated by reference therein) complied, and
on the date of this Agreement, the Prospectus (including all documents
incorporated by reference therein) complies, and any further amendments or
supplements thereto made by the Company on or prior to the date of such
opinion comply (other than,
<PAGE>
10
in each case, the financial statements and related schedules and other
financial and statistical 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 July 12, 1990; 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 believes appropriate in the discharge of its professional
responsibilities, relied upon the statements of officers and representatives of
the Company as to the materiality of certain facts regarding the Company
disclosed to or otherwise known by it. 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 and statistical
data included or incorporated by reference in the Registration Statement or the
Prospectus or the Form T-1 under the Trust Indenture Act).
In rendering such opinion, such counsel may state that their opinion is
limited to the federal laws of the United States, the laws of the State of New
York and the General Corporation Law of the State of Delaware and rely as to
matters of fact upon the representations contained in this Agreement and the
certificates of officers of the Company and of public officials.
(d) The Company shall have furnished to the Agents on the Closing Date a
letter of Ernst & Young LLP, addressed jointly to the Company and the Agents
and dated the Closing Date, of the type described in the American Institute of
Certified Public Accountants' Statement on Auditing Standards No. 72, and
covering such additional financial statement items and procedures (including a
review of interim financial statements specified in the American Institute of
Certified Public Accountants' Statement on Auditing Standards No. 71) as the
Agents may reasonably request and in form and substance satisfactory to the
Agents.
(e) The Company shall have furnished to the Agents a certificate, dated
the Closing Date, of its Chief Financial Officer or Treasurer and its General
Counsel or other counsel stating that the representations and warranties of the
Company in Section 1 of this Agreement are true and correct as of such date; the
Company has performed all of its agreements contained in this Agreement which
are required to be performed on or before
<PAGE>
11
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; and
(g) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities of the Company or securities generally
on the New York Stock Exchange, Inc.; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New
York State authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this subsection (g) in the judgment of such Agent makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or
offers and sales of Notes or the purchase of Notes from the Company as
principal, pursuant to the applicable Purchase Agreement or otherwise, as
the case may be, on the terms and in the manner contemplated in the
Prospectus;
(h) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any downgrading in the rating accorded the
Company's debt securities by Moody's Investor Service, Inc., 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 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
<PAGE>
12
(ii)) or (iv) the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes pursuant to such
Purchase Agreement, the Company shall, promptly following such amendment or
supplement, filing of such Annual Report, Quarterly Report or Current Report
that is incorporated by reference into the Prospectus or request by the Agents,
or concurrently with the Time of Delivery relating to such sale, furnish to the
Agents a certificate as of the date of such amendment, supplement, filing or
Time of Delivery relating to such sale or if such amendment, supplement or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(e) which was last furnished to the Agents
are true and correct as of the date of such certificate as though made at and as
of such time (except that such statements shall be deemed to relate to the
Registration Statement and each Prospectus as amended and supplemented to such
time), or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(e), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. During each Marketing Period,
each time (i) that the Registration Statement or any Prospectus shall be amended
or supplemented (other than by (A) a Pricing Supplement, (B) an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes, or (C) except as set forth in (ii) and (iii) below, an amendment or
supplement by the filing of an Incorporated Document), (ii) the Company files
with the Commission an Annual Report on Form 10-K, a Quarterly Report on Form
10-Q or a Current Report on Form 8-K which contains financial information
required to be set forth in or incorporated by reference into the Prospectus
pursuant to Item 11 of Form S-3 under the Securities Act, (iii) the Agents
reasonably request following the filing by the Company with the Commission of an
Incorporated Document (other than as specified in the preceding clause (ii)) or
(iv) the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under this Section
6(c) as a condition to the purchase of Notes pursuant to such Purchase
Agreement, the Company shall, promptly following such amendment or supplement,
filing of such Annual Report, Quarterly Report or Current Report that is
incorporated by reference into the Prospectus or request by the Agents, or
concurrently with the Time of Delivery relating to such sale, or if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents and their
counsel with the written opinion of counsel to the Company specified in Section
5(c), addressed to the Agents and dated the date of delivery of such opinion, in
form satisfactory to the Agents, to the same effect as the opinion referred to
in Section 5(c) hereof, but modified, as necessary, to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such opinion; provided, however, that in lieu of such
opinion, counsel may furnish the Agents with a letter to the effect that the
Agents may rely on a prior opinion to the same extent as though such prior
opinion were dated the date of such letter authorizing reliance (except that
statements in such prior opinion shall be deemed to relate to the Registration
Statement and each Prospectus as amended or supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. During each Marketing
Period, each time (i) that the Registration Statement or any Prospectus shall be
amended or supplemented to include additional financial information (other than
by (A) a Pricing Supplement, (B) an amendment or supplement which relates
exclusively to an offering of securities other than the Notes, or (C) except as
set forth in (ii) and (iii) below, an amendment or supplement by the filing of
an Incorporated Document), (ii) the Company files with the Commission an Annual
Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form
8-K which contains financial information required to be set forth in or
incorporated by reference into the Prospectus pursuant to Item 11 of Form S-3
under the Securities Act, (iii) the Agents reasonably request following the
filing by the Company with the Commission of an Incorporated Document (other
than as specified in the preceding clause (ii)) or (iv) the Company sells Notes
to an Agent as principal and the applicable Purchase Agreement specifies the
delivery of a letter under this Section 6(d) as a condition to the purchase of
Notes pursuant to such Purchase Agreement, the Company shall cause Ernst & Young
LLP (or other independent accountants of the Company acceptable to the Agents)
to furnish the Agents, promptly following such amendment or supplement, filing
of such Annual Report, Quarterly Report or Current Report that is incorporated
by reference into the Prospectus or request by the Agents, or concurrently with
the Time of Delivery relating to such sale, or if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed as provided in Section 5(d) and
dated the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, to the same effect as the letter referred to in
Section 5(d) but modified to relate to the Registration Statement and each
Prospectus, as amended and supplemented to the date of such letter, with such
changes
<PAGE>
13
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 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
<PAGE>
14
liability which the indemnifying party may have to an indemnified party (i)
unless and to the extent that such failure results in the forfeiture by the
indemnifying party of rights and defenses and (ii) otherwise than under this
Section 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Agents shall have the right to employ counsel to represent jointly the
Agents and their respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Agents against the Company under this Section 7, if, in the reasonable judgment
of the Agents, there are legal defenses available to them which are different
from or in addition to those available to such indemnifying party (it being
understood that the Company shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (other than local counsel which shall be engaged only for purposes of
appearing with such counsel in such jurisdictions in which such firm of
attorneys is not licensed to practice)), and in that event the fees and expenses
of such separate counsel shall be paid by the Company. Anything in this Section
7(c) to the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its written consent
which shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Agents on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice required by
the first sentence of Subsection 7(c), in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Agents on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof and with respect to the
failure of the indemnified party to give such notice, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and any Agent on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
sale of the Notes (before deducting expenses) received by the Company bear to
the total commissions received by such Agent with respect to such offering. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or any Agent, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Agents agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to in this Section 7(d). The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
through it and distributed to the public was offered to the public exceeds the
amount of any damages which such Agent has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Each
Agent's obligation to contribute as provided in this Section 7(d) 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
<PAGE>
15
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 __________________, Fax:
__________, Attention: ________________, and 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:_____________.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Agents and the Company and their
respective successors. This Agreement is for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement also shall be deemed to be
for the benefit of the person or persons, if any, who control any Agent within
the meaning of Section 15 of the Securities Act and, with respect to the
indemnities in Section 7, officers, directors and employees of the Agents, and
(B) the indemnity agreement of the Agents contained in Section 7(b) shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained in this
Agreement. No purchaser of Notes shall be deemed to be a successor solely by
reason of such purchase.
12. Governing Law. THIS AGREEMENT AND ANY PURCHASE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CHOICE OF LAW).
13. Counterparts. This Agreement and any Purchase Agreement may be
executed in counterparts and each such counterpart shall be deemed to be an
original but all such counterparts shall together constitute one and the same
instrument.
<PAGE>
16
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.
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:
<PAGE>
Exhibit A
Maytag Corporation
Medium-Term NOTES, Series B
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:
<TABLE>
<CAPTION>
======================================================
Term Commission Rate
------------------------------------------------------
<S> <C>
9 months to less than 12 months 0.125%
------------------------------------------------------
12 months to less than 18 months 0.150%
------------------------------------------------------
18 months to less than 2 years 0.200%
------------------------------------------------------
2 years to less than 3 years 0.250%
------------------------------------------------------
3 years to less than 4 years 0.350%
------------------------------------------------------
4 years to less than 5 years 0.450%
------------------------------------------------------
5 years to less than 6 years 0.500%
------------------------------------------------------
6 years to less than 7 years 0.550%
------------------------------------------------------
7 years to less than 10 years 0.600%
------------------------------------------------------
10 years to less than 15 years 0.625%
------------------------------------------------------
15 years to less than 20 years 0.675%
------------------------------------------------------
20 years to 30 years 0.750%
======================================================
</TABLE>
<PAGE>
EXHIBIT B
MAYTAG CORPORATION
MEDIUM-TERM NOTES, SERIES B, ADMINISTRATIVE PROCEDURES
___________
_______ ,1996
The Medium-Term Notes, Series B, 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. ________________________________________, 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
<PAGE>
not be entitled to receive a certificate representing such Note, except as
provided in the Indenture.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping responsibilities
will be handled for the Company by its Treasury Department. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, as adjusted in accordance with changes in
DTC's operating requirements, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture and the Notes
shall be used herein as therein defined. Notes for which interest is calculated
on the basis of a fixed interest rate, which may be zero, are referred to herein
as "Fixed Rate Notes." Notes for which interest is calculated on the basis of a
floating interest rate are referred to herein as "Floating Rate Notes." To the
extent the procedures et 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").
-2-
<PAGE>
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 $150,000,000 of all such Book-Entry Notes
that have the same Original Issue Date, original issue discount provisions, if
any, Interest Payment Dates, Regular Record Dates, redemption, repayment and
extension provisions (if any), Stated Maturity and, in the case of Fixed Rate
Notes, interest rate, or, in the case of Floating Rate Notes, Initial Interest
Rate, Interest Rate Basis, Index Maturity, Interest Determination Dates, Reset
Period, Interest Reset Dates, Spread and/or Spread Multiplier (if any), minimum
interest rate (if any), and maximum interest rate (if any), (collectively, the
"Terms") . Each Global Security will be dated and issued as of the date of its
authentication by the Trustee. Each Global Security will bear an original issue
date, which will be (i) with respect to an original Global Security (or any
portion thereof), the original issue date specified in such Global Security, and
(ii) following a consolidation of Global Securities, with respect to the Global
Security resulting from such consolidation, the most recent Interest Payment
Date to which interest has been paid or duly provided for on the predecessor
Global Securities, regardless of the date of authentication of such resulting
Global Security. No Global Security will represent (i) both Fixed Rate and
Floating Rate Book-Entry Notes or (ii) any Certificated Note.
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,
-3-
<PAGE>
which series consists of approximately 900 CUSIP numbers and relates to Global
Securities representing Book-Entry Notes and book-entry medium-term notes issued
by the Company with other series designations. The Company has obtained from the
CUSIP Service Bureau a written list of such reserved CUSIP numbers and has
delivered to the Trustee and DTC such written list of CUSIP numbers. The Company
will assign CUSIP numbers to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP Service Bureau periodically
of the CUSIP numbers that the Company has assigned to Global Securities. The
Trustee will notify the Company at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, and if it deems necessary,
the Company will reserve additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list of such additional CUSIP numbers to
the Trustee and DTC.
Registration: Global Securities will be issued only in fully registered form
without coupons. Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Security Register maintained under the
Indenture. The beneficial owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will designate one or more
participants in DTC (with respect to such Book-Entry Note, the "Participants")
to act as agent or agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry form, in accordance
with instructions provided by such Participants, a credit balance with respect
to such beneficial owner in such Book-Entry Note in the account of such
Participants. The ownership interest of such beneficial owner (or such
Participant)
-4-
<PAGE>
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 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
-5-
<PAGE>
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 in
aggregate principal amount, one Global Security will be authenticated and issued
to represent each $200,000,000 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. Global
Securities will be denominated in principal amounts not in excess of
$200,000,000. If one or more Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 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 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.
-6-
<PAGE>
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 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
-7-
<PAGE>
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
-8-
<PAGE>
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 (i) 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 and (ii) for which the
Interest Rate Basis is the Kenny Rate, interest will be calculated on the basis
of a year of 365 days.
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
-9-
<PAGE>
preceding the Maturity of such Global Security. On or before Maturity, the
Company will pay to the Trustee, as the paying agent, the principal amount of
such Global Security, together with interest due at such Maturity. The Trustee
will pay such amounts to DTC at the times and in the manner set forth below
under "Manner of Payment". If any Maturity of a Global Security representing
Book-Entry Notes is not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Maturity. Promptly after payment to
DTC of the principal and interest due at Maturity of such Global Security, the
Trustee will cancel such Global Security in accordance with the terms of the
Indenture and so advise the Company. On the first Business Day of each month,
the Trustee will deliver to the Company a written statement indicating the total
principal amount of Outstanding Global Securities for which it serves as trustee
as of the immediately preceding Business Day. If the Maturity of a Book-Entry
Note is not a Business Day, the payment due on such day shall be made on the
next succeeding Business Day and no interest shall accrue on such payment for
the period from and after such Maturity.
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 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 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
-10-
<PAGE>
Trustee. Prior to 10:00 A.M. (New York City time) on the date of Maturity or as
soon as possible thereafter, the Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each payment of principal
(together with interest thereon) due on Global Securities on such date. On each
Interest Payment Date (other than at Maturity), interest payments shall be made
to DTC in funds available for immediate use by DTC, in accordance with existing
arrangements between the Trustee and DTC. On each such date, DTC will pay, in
accordance with its SDFS operating procedures then in effect, such amounts in
funds available for immediate use to the respective Participants in whose names
the Book-Entry Notes represented by such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the Company (either as issuer or as
Paying Agent) nor the Trustee shall have any direct responsibility or liability
for the payment by DTC to such Participants of the principal of and interest on
the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under applicable law to be
withheld from any interest payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Procedures
upon Company's
Exercise of
Optional
Redemption: Company Notice to Trustee Regarding Exercise of Optional
Redemption. At least 45 days
-11-
<PAGE>
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 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.
-12-
<PAGE>
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.
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 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.
-13-
<PAGE>
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 furnish it with the proposed amendment or
-14-
<PAGE>
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
-15-
<PAGE>
relating to such Notes that reflects the applicable interest rates and other
terms and will deliver copies of such Pricing Supplement to the Agents.
Delivery of
Prospectus: A copy of the Prospectus and Pricing Supplement relating to a Book-
Entry Note must accompany or precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of such Book-Entry Note or payment
for such Book-Entry Note by its purchaser. If notice of a change in the terms of
the Book-Entry Notes is received by an Agent between the time an order for a
Book-Entry Note is placed and the time written confirmation thereof is sent by
such Agent to a customer or his agent, such confirmation shall be accompanied by
a Prospectus and Pricing Supplement setting forth the terms in effect when the
order was placed. Subject to "Suspension of Solicitation; Amendment or
Supplement" above, each Agent will deliver a Prospectus and Pricing Supplement
as herein described with respect to each Book-Entry Note sold by it. The Company
will make such delivery if such Book-Entry Note is sold directly by the Company
to a purchaser (other than an agent).
Confirmation: For each offer to purchase a Book-Entry Note solicited by any
Agent and accepted by or on behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy to the Company, setting forth
the details set forth above and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available funds in payment
for a Book-Entry Note and the authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute "settlement" with respect to
such Book-Entry Note. All orders
-16-
<PAGE>
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:
A. The Presenting Agent will advise the Company by telephone of the
following settlement information:
1. Principal amount.
2. Stated 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 and repayment provisions, if any.
6. Settlement date.
7. Price.
-17-
<PAGE>
8. Presenting Agent's commission, determined as provided in Exhibit
A to the Distribution Agreement.
9. Whether the Note is issued at an original issue discount and, if
so, the total amount of OID, the yield to maturity and the
initial accrued period OID.
B. The Company will assign a CUSIP number to the Global Security
representing such Book-Entry Note and then advise the Trustee by
telephone (confirmed in writing at any time on the same date) or
electronic transmission of the information set forth in Settlement
Procedure "A" above, such CUSIP number and the name of the Presenting
Agent. The Company will also notify the Presenting Agent of such CUSIP
number by telephone as soon as practicable. Each such communication by
the Company shall constitute a representation and warranty by the
Company to the Trustee and each Agent that (i) such Note is then, and
at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such Note, and the Global
Security representing such Note, will conform with the terms of the
Indenture pursuant to which such Note and Global Security are issued
and (iii) upon authentication and delivery of such Global Security,
the aggregate initial offering price of all Notes issued under the
Indenture will not exceed $150,000,000.
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
-18-
<PAGE>
& Poor's Corporation), the Presenting Agent and, upon request, the
Trustee:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry Note, number of
days by which such date succeeds the related Regular Record Date
and amount of interest payable on such Interest Payment Date.
4. The Reset Period.
5. CUSIP number of the Global Security representing such Book-Entry
Note.
6. Whether such Global Security will represent any other Book-Entry
Note (to the extent known at such time).
D. To the extent the Company has not already done so, the Company
will deliver to the Trustee a Global Security in a form that has
been approved by the Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the
appropriate legend, as instructed by DTC, if not already set forth
thereon, and authenticate the Global Security representing such
Book-Entry Note.
F. DTC will credit such Book-Entry Note to the Trustee's participant
account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal
-19-
<PAGE>
System instructing DTC to (i) debit such Book-Entry Note to the
Trustee's participant account and credit such Book-Entry Note to
the Presenting Agent's participant account and (ii) debit the
Presenting Agent's settlement account and credit the Trustee's
settlement account for an amount equal to the price of such Book-
Entry Note less the Presenting Agent's commission. The entry of
such a deliver order shall constitute a representation and
warranty by the Trustee to DTC that (i) the Global Security
representing such Book-Entry Note has been issued and
authenticated and (ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate Agreement between the
Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's participant account
and credit such Book-Entry Note to the participant accounts of the
Participants with respect to such Book-Entry Note and (ii) to
debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to
the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in effect on the
settlement date.
J. The Trustee will, upon receipt of funds from the Presenting Agent
in accordance with Settlement Procedure "G", wire
-20-
<PAGE>
transfer to or credit the account of the Company maintained at ______________
____________, 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
-21-
<PAGE>
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
-22-
<PAGE>
debited. If a withdrawal message is processed with respect to all the Book-Entry
Notes represented by a Global Security, the Trustee will cancel such Global
Security in accordance with the Indenture, make appropriate entries in the
Trustee's records and so advise the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry Notes represented by
a Global Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Note or Notes and shall
be cancelled immediately after issuance and the other of which shall represent
the remaining Book-Entry Notes previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting Agent for such Note
may enter SDFS deliver orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement 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
-23-
<PAGE>
during the period when they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Note, DTC may take any actions in accordance with its SDFS operating
procedures then in effect. If it is necessary for the Trustee to return funds to
DTC by reason of any failure to settle with respect to any Book-Entry Note, the
Company shall pay to the Trustee funds immediately available to the Trustee on
the date of failure, and the Trustee is hereby instructed to withdraw said funds
from an account maintained by the Company at Harris Trust and Savings Bank. The
Trustee shall give the Company notice of said withdrawal one hour prior thereto
or such lesser time prior thereto as is practicable under the circumstances. In
the event of a failure to settle with respect to one or more, but not all, of
the Book-Entry Notes to have been represented by a Global Security, the Trustee
will provide, in accordance with Settlement Procedure "E" for the authentication
and issuance of a Global Security representing the other Book-Entry Notes to
have been represented by such Global Security and will make appropriate entries
in its records.
-24-
<PAGE>
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 will be denominated only in
-25-
<PAGE>
U.S. dollars and will be issued in denominations of $1,000 or any amount in
excess thereof that is an integral multiple of $1,000.
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
-26-
<PAGE>
Interest Payment Date following the next succeeding Regular Record Date;
provided, further, that if any Interest Payment Date for a Fixed Rate
Certificated Note is not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no interest shall accrue on such
payment for the period from and after such Interest Payment Date.
Interest Payment Date on Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes monthly, quarterly, semi-
annually or annually. Interest will be payable, in the case of Floating Rate
Certificated Notes that reset daily, weekly or monthly, on the third Wednesday
of each month; that reset quarterly, on the third Wednesday of March, June,
September and December of each year; that reset semiannually, on the third
Wednesday of the two months specified pursuant to Settlement Procedure "A"
below; and that reset annually, on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below; provided, however, that if an
Interest Payment Date for a Floating Rate Certificated Note would otherwise be a
day that is not a Business Day with respect to such Floating Rate Certificated
Note, such Interest Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note, except that in the case of a
Floating Rate Certificated Note for which the Interest Rate Basis is LIBOR, if
such Business Day is in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding London Business Day; and provided
further, that in the case of a Floating Rate Certificated Note issued between a
Regular Record Date and an Interest Payment Date or on an Interest Payment Date,
the first interest payment will
-27-
<PAGE>
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 (i) 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 and (ii) for which the
Interest Rate Basis is the Kenny Rate, interest will be calculated on the basis
of a year of 365 days.
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
-28-
<PAGE>
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.
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
-29-
<PAGE>
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.
Procedure for Rate Setting and
-30-
<PAGE>
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
-31-
<PAGE>
will supply at least ten copies thereof (and additional copies if requested) to
the Agent which presented the order (the "Presenting Agent"). The Presenting
Agent will cause a Prospectus and Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is prepared, the Presenting Agent
will affix the Pricing Supplement to Prospectuses prior to their use. Outdated
Pricing Supplements, and the Prospectuses to which they are attached (other than
those retained for files), will be destroyed.
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
-32-
<PAGE>
the Agents that such supplement has been filed with the Commission pursuant to
the applicable paragraph of Rule 424(b).
The Company will, consistent with the obligations described above, promptly
advise each Agent and the Trustee whether orders outstanding at the time each
Agent suspends solicitation may be settled and whether copies of such Prospectus
as in effect at the time of the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection with the settlement of such
orders. The Company will have the sole responsibility for such decision and for
any arrangements that may be made in the event the Company determines that such
orders may not be settled or that copies of such Prospectus and Pricing
Supplement may not be so delivered.
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
-33-
<PAGE>
written offer of such Note, delivery of such Note, confirmation of the purchase
of such Note and payment for such Note by its purchaser. If notice of a change
in the terms of the Certificated Notes is received by an Agent between the time
an order for a Certificated Note is placed and the time written confirmation
thereof is sent by such Agent to a customer or his agent, such confirmation
shall be accompanied by a Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above each Agent will deliver a
Prospectus and Pricing Supplement as herein described with respect to each Note
sold by it. The Company will make such delivery if such Certificated Note is
sold directly by the Company to a purchaser (other than any Agent).
Confirmation: For each offer to purchase a Certificated Note solicited by any
Agent and accepted by or on behalf of the Company, the Presenting Agent will
issue a confirmation to the purchaser, with a copy to the Company, setting forth
the details set forth above and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to the Presenting
Agent and such Presenting Agent's delivery of such Note against receipt of
immediately available funds shall, with respect to such Note, constitute
"settlement." All orders accepted by the Company will be settled on the third
Business Day following the date of sale of such Certificated Note pursuant to
the timetable for settlement set forth below, unless the Company, the Trustee
and the purchaser agree to settlement on a later date which shall be no earlier
than the next Business Day following the date of sale.
-34-
<PAGE>
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.
5. Stated Maturity.
6. In the case of a Fixed Rate Certificated Note, the interest rate
or, in the case of a Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time), Interest Rate Basis, Index
Maturity, Interest Determination Date, Reset Period, Interest
Reset Dates, Spread and/or Spread Multiplier (if any), minimum
interest rate (if any) and maximum interest rate (if any).
7. Interest Payment Dates and Regular Record Dates.
8. Redemption and repayment provisions, if any.
-35-
<PAGE>
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
exceed $150,000,000.
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.
-36-
<PAGE>
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 acknowledgement of receipt
of such Certificated Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by first-class mail.
-37-
<PAGE>
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
-38-
<PAGE>
failure occurred, the Trustee will cancel such Certificated Note in
accordance with the Indenture, make appropriate entries in the Trustee's records
and so advise the Company.
PART III: ADMINISTRATIVE PROCEDURES FOR BOTH BOOK-ENTRY AND CERTIFICATED
NOTES
Trustee Not to Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in connection with any payment to the
Company, DTC or any Agent or the purchaser, it being understood by all parties
that payments made by the Trustee to the Company, DTC or any Agent shall be made
only to the extent that funds are provided to the Trustee for such purpose.
Authenticity of Signatures: The Company will cause the Trustee to furnish each
Agent from time to time with the specimen signatures of each of the Trustee's
officers, employees or agents who has been authorized by the Trustee to
authenticate Notes, but each Agent will have no obligation or liability to the
Company or the Trustee in respect of the authenticity of the signature of any
officer, employee or agent of the Company or the Trustee on any Note. The
Company will furnish the Trustee from time to time with the specimen signatures
of persons who have been authorized by the Company to sign Company Orders.
Payment of Expenses: Each Agent shall forward to the Company, from time to time
(but not more often than monthly), a statement of the out-of-pocket expenses
incurred by such Agent during that time which are reimbursable to it pursuant to
the terms of the Distribution Agreement. The
-39-
<PAGE>
Company will remit payment promptly to such Agent.
Advertising Costs: The Company will determine with each Agent the amount of
advertising that may be appropriate in soliciting offers to purchase the Notes.
Advertising expenses will be paid by the Company.
Periodic Statements from the Trustee: Periodically, the Trustee will send to
the Company upon request a statement setting forth the principal amount of Notes
Outstanding as of that date and setting forth a brief description of any sales
of Notes which the Company has advised, but which have not yet been settled.
-40-
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
------------------
Maytag Corporation _______________, 19__
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 _______________, 19__
(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:
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.
<PAGE>
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.
<PAGE>
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: 19__
Maytag Corporation
By _________________________
Name:
Title:
By _________________________
Name:
Title:
<PAGE>
[THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
Exhibit 4.1
MAYTAG CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE UNDER INDENTURE DATED AS OF JUNE 15, 1987
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 20, 1996
PROVIDING FOR ISSUANCE OF MEDIUM-TERM NOTES, SERIES B,
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
THIS THIRD SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") dated as
of the 20th day of August, 1996, between Maytag Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
having its principal office at Newton, Iowa, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America (the "Trustee"), Trustee under the
Indenture dated as of June 15, 1987 between the Company and the Trustee (the
"Original Indenture").
W I T N E S S E T H:
WHEREAS, the Original Indenture provides for the issuance from time to time
thereunder, in series, of debt securities of the Company to provide funds for
its corporate purposes; and
WHEREAS, the Company desires, by this Supplemental Indenture, to create a
series of Securities to be issuable under
<PAGE>
the Original Indenture and to be known as the Company's Medium-Term Notes,
Series B, due from 9 months to 30 years from Date of Issue (the "Medium Term
Notes"), the Medium Term Notes to be limited in aggregate initial offering price
as set forth herein and the terms and provisions thereof to be as hereinafter
set forth; and
WHEREAS, all things necessary to make the Medium Term Notes, when executed
by the Company and authenticated and delivered by the Trustee and duly issued by
the Company, the valid obligations of the Company, and to make this Supplemental
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Medium
Term Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of such Holders, as follows:
Section 1. Defined Terms. All terms used in this Supplemental Indenture
which are defined in the Original Indenture have the meanings assigned to them
in the Original Indenture, except that, for purposes of the Supplemental
Indenture and the Medium Term Notes, the term "Business Day"
-2-
<PAGE>
shall mean, unless otherwise specified in the applicable Pricing Supplement, any
Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close, and, with respect to Notes as to which
LIBOR (as defined in Exhibit B) is the applicable Interest Rate Basis (as
defined in Exhibit B), is also a London Business Day (as defined in Exhibit B).
Section 2. Designation and Terms of the Medium Term Notes. There is hereby
created by this Supplemental Indenture a series of Securities to be known and
designated as the "Medium-Term Notes, Series B, Due from 9 Months to 30 Years
from Date of Issue" of the Company. The Medium Term Notes shall be limited to
$150,000,000 in aggregate initial offering price.
Each Medium Term Note shall have the particular terms (which need not be
substantially identical to the terms of any other Medium Term Notes) established
in accordance with or as contemplated by this Section 2. Each fixed rate Medium
Term Note ("Fixed Rate Note") shall be in substantially the form attached as
Exhibit A hereto, and each floating rate Medium Term Note ("Floating Rate Note")
shall be in substantially the form attached as Exhibit B hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by the Original Indenture and this Supplemental
Indenture.
-3-
<PAGE>
Each of the Chairman of the Board, the Chief Financial Officer and the
Treasurer of the Company, or any of them individually (each an "Authorized
Officer"), may, at any time and from time to time, on behalf of the Company,
authorize the issuance of Medium Term Notes and in connection therewith
establish, or, if all of the Medium Term Notes of such series are not originally
issued at one time, to the extent deemed appropriate prescribe the manner of
determining within any limitations established by such Authorized Officer
(subject in either case to the limitations set forth in this Supplemental
Indenture and the Original Indenture), the following:
(1) the date or dates on which the principal of the Medium Term Notes
is payable;
(2) the rate or rates (or method by which determined) at which the
Medium Term Notes shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Dates for the interest
payable on any Interest Payment Date;
-4-
<PAGE>
(3) the place or places where the principal of (and premium, if any)
and interest on Medium Term Notes shall be payable;
(4) the period or periods within which, the price or prices at which
and the terms and conditions upon which Medium Term Notes may be redeemed,
in whole or in part, at the option of the Company, pursuant to any sinking
fund or otherwise;
(5) the obligation, if any, of the Company to redeem or purchase
Medium Term Notes pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Medium
Term Notes shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(6) if other than denominations of $1,000 and integral multiples of
$1,000 in excess thereof the denominations in which Medium Term Notes shall
be issuable;
(7) if other than the principal amount thereof, the portion of the
principal amount of Medium Term Notes which shall be payable upon
declaration of
-5-
<PAGE>
acceleration of the Maturity thereof pursuant to Section 502 of the
Original Indenture;
(8) additional Events of Default with respect to the Medium Term
Notes, if any, other than those set forth in the Original Indenture;
(9) whether the Medium Term Notes shall be issued in whole or in part
in the form of one or more Global Notes (as defined in Section 4 hereof)
and, in such case, the Depositary for such Global Note or Notes, which
Depositary must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(10) any other terms of the Medium Term Notes (which terms shall not
be inconsistent with the provisions of this Supplemental Indenture or the
Original Indenture).
In connection with the Medium Term Notes, the officers of the Company
specified in the Original Indenture may execute and deliver one or more
Officers' Certificates setting forth, or, if all of the Medium Term Notes are
not originally issued at one time, to the extent deemed appropriate describing
the manner of determining, the foregoing terms of the Medium Term Notes,
-6-
<PAGE>
established or prescribed, as the case may be, in accordance with the foregoing.
Each Medium Term Note will be dated and issued as of the date of its
authentication by the Trustee. Each Medium Term Note shall also bear an Original
Issue Date (as hereinafter defined) which, with respect to any Medium Term Note
(or any portion thereof), shall mean the date of its original issue, as
specified in such Medium Term Note (the "Original Issue Date"), and such
Original Issue Date shall remain the same if such Medium Term Note is
subsequently issued upon transfer, exchange, or substitution of such Medium Term
Note regardless of its date of authentication. Principal on any Medium Term Note
shall become due and payable from nine months to 30 years from the Original
Issue Date of such Medium Term Notes, as specified in such Medium Term Note.
The Places of Payment for the principal of and premium, if any, with
respect to Medium Term Notes shall be the City of Chicago, Illinois and The City
of New York. Interest, if any, on the Medium Term Notes will be paid by check,
draft or wire, as specified in the terms thereof. The Trustee shall be the
paying agent ("Paying Agent") for the Medium Term Notes.
Payments of principal of (and premium, if any) and interest on each Medium
Term Note will be made in Dollars. If specified in a particular Medium Term
Note, the amount of
-7-
<PAGE>
principal payable on such Medium Term Note will be determined by reference to an
index or formula described therein.
Unless otherwise indicated in the terms of a particular Medium Term Note,
the "Regular Record Date" with respect to any Floating Rate Note shall be the
date 15 calendar days prior to each Interest Payment Date, whether or not such
date shall be a Business Day, and the "Regular Record Date" with respect to any
Fixed Rate Note shall be the February 1 and August 1 next preceding the February
15 and August 15 Interest Payment Dates.
Unless otherwise indicated in the terms of a particular Medium Term Note
and except as provided below, the Interest Payment Dates for Floating Rate Notes
will be, in the case of Floating Rate Notes that reset daily, weekly or monthly,
the third Wednesday of each month or the third Wednesday of March, June,
September and December of each year, as specified on the face thereof; in the
case of Floating Rate Notes that reset quarterly, the third Wednesday of March,
June, September and December of each year, as specified on the face thereof; in
the case of Floating Rate Notes that reset semi-annually, the third Wednesday of
each of two months of each year, as specified on the face thereof; and in the
case of Floating Rate Notes that reset annually, the third Wednesday of one
month of each year, as specified on the face thereof, and in each case, at
Maturity.
-8-
<PAGE>
Notwithstanding the provisions of Section 303 of the Original Indenture, it
shall not be necessary to deliver the documents described therein at or prior to
the time of authentication of each Medium Term Note, if such documents are
delivered at or prior to the authentication upon original issuance of the first
Medium Term Note created by this Supplemental Indenture.
Section 3. Redemption of Medium Term Notes. Each Medium Term Note may be
redeemed by the Company in whole or in part if so provided pursuant to the terms
of such Medium Term Note issued by the Company. Notwithstanding the provisions
of Section 1103 of the Original Indenture, the Company may redeem any Medium
Term Note which by its terms is redeemable prior to Stated Maturity without also
redeeming any other Medium Term Note which is redeemable prior to Stated
Maturity. The selection of Medium Term Notes to be redeemed prior to Stated
Maturity shall be in the sole discretion of the Company.
Section 4. Global Notes. For the purposes of this Section 4, the term
"Agent Member" means a member of, or participant in, a Depositary; the term
"Depositary" means, with respect to Medium Term Notes issuable or issued in
whole or in part in the form of one or more Global Notes, the Person designated
as Depositary by the Company pursuant to Section 2 hereof, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Medium Term Notes shall
-9-
<PAGE>
mean the respective Depositary with respect to the particular Medium Term Notes;
and the term "Global Note" means a global certificate evidencing all or part of
the Medium Term Notes issued to the Depositary and registered in the name of
such Depositary or its nominee.
Notwithstanding Section 305 of the Original Indenture, except as otherwise
specified as contemplated by Section 2 hereof, any Global Note shall be
exchangeable for Medium Term Notes in certificated form only as provided in this
paragraph. A Global Note shall be exchangeable for Medium Term Notes in
certificated form pursuant to this Section if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note and a successor depository is not appointed by the Company within 90 days
after the Company receives such notice, or if the Depositary ceases to be a
clearing agency registered pursuant to the provisions of Section 17A of the
Exchange Act, (y) the Company in its sole discretion determines not to have one
or more Medium Term Notes represented by one or more Global Notes or (z) an
Event of Default with respect to the Medium Term Notes represented by such
Global Note shall have occurred and be continuing. Any Global Note that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Medium
Term Notes in certificated form, bearing interest (if any) at the same rate or
pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Stated Maturity and other terms and of differing
-10-
<PAGE>
denominations aggregating a like amount. Such definitive Medium Term Notes
shall be registered in the names of the owners of the beneficial interests in
such Global Note as such names are from time to time provided by the relevant
participants in the Depositary holding such Global Note (as such participants
are identified from time to time by such Depositary).
If at any time the Depositary for the Medium Term Notes notifies the
Company that it is unwilling or unable to continue as Depositary for the Medium
Term Notes or if at any time the Depositary for the Medium Term Notes shall no
longer be eligible under this Section, the Company shall appoint a successor
Depositary with respect to the Medium Term Notes. If a successor Depositary for
the Medium Term Notes is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Medium Term Notes in certificated form, will
authenticate and deliver Medium Term Notes in certificated form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such Medium Term Notes in exchange for such Global Note or Notes.
No Global Note may be transferred except as a whole by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor of the Depositary or a nominee of
such successor.
-11-
<PAGE>
Except as provided above, owners solely of beneficial interests in a Global Note
shall not be entitled to receive physical delivery of Medium Term Notes in
certificated form and will not be considered the Holders thereof for any purpose
under the Original Indenture or this Supplemental Indenture.
Any Global Note that is exchangeable pursuant to this Section 4 shall be
exchangeable for Medium Term Notes issuable in denominations of $1,000 and
integral multiples of $1,000 in excess thereof and registered in such names as
the Depositary that is the Holder of such Global Note shall direct.
In the event that a Global Note is surrendered for redemption in part
pursuant to the Original Indenture, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Note, without
service charge, a new Global Note in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Global Note so surrendered.
The Agent Members shall have no rights under the Original Indenture or
this Supplemental Indenture with respect to any Global Note held on their behalf
by a Depositary, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any
-12-
<PAGE>
Agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by a Depositary or impair,
as between a Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Medium Term
Note, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Original Indenture.
Section 5. Determination of Outstanding Medium Term Notes. In determining
whether the Holders of the requisite principal amount of the Outstanding Medium
Term Notes have given any request, demand, authorization, direction, notice,
consent or waiver under the Original Indenture, the principal amount of a Medium
Term Note shall be the Dollar amount, determined on the date of original
issuance of such Medium Term Note, of the initial offering price (or, in the
case of a Medium Term Note which is an Original Issue Discount Security, the
Dollar equivalent on the date of the original issuance of such Note of the
amount of principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02 of the Original Indenture) of such Medium Term Note.
T E S T I M O N I U M
-13-
<PAGE>
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
* * *
-14-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
MAYTAG CORPORATION
By: /s/ Gerald J. Pribanic
-------------------------------
Name: Gerald J. Pribanic
Title: Executive Vice President
and Chief Financial Officer
ATTEST:
/s/ E. H. Graham
----------------------------
(CORPORATE SEAL)
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Richard D. Manella
--------------------------------
Name: Richard D. Manella
Title: Vice President
ATTEST:
/s/ J. T. Cahill
-----------------------------
(CORPORATE SEAL)
-15-
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On this 19th day of August, 1996, before me personally came Richard D.
Manella to me known, who, being by me duly sworn, did depose and say that he is
Vice President of The First National Bank of Chicago, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was affixed by the authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Darla R. Coulson
----------------------------
Notary Public
My Commission expires:
5/17/98
-----------------------------
[Notary Seal]
-16-
<PAGE>
STATE OF IOWA )
) ss:
COUNTY OF JASPER )
On this 18th day of August, 1996 before me personally came Gerald J.
Pribanic, to me known, who being by me duly sworn, did depose and say that he is
Executive Vice President and Chief Financial Officer of Maytag Corporation, one
of the corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was affixed by the authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
Susan St. Clair
-----------------------------
Notary Public
My Commission expires:
June 29, 1998
-----------------------------
[Notary Seal]
-17-
<PAGE>
Exhibit 4.2
[Face of Note]
CUSIP NO. MAYTAG CORPORATION
----
REGISTERED NO. FX MEDIUM-TERM NOTE, SERIES B PRINCIPAL AMOUNT: $
-- ---
Due from Nine Months to 30 Years from Date of Issue
If this Note is a Book-Entry Note, the registered owner of this Note
(as indicated below) is The Depository Trust Company (the "Depositary") or a
nominee of the Depositary, and the following legend is applicable: Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co., or to such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
OPTIONAL REDEMPTION: [_] YES [_] NO
ORIGINAL ISSUE DATE:
INITIAL REDEMPTION DATE:
STATED MATURITY: INITIAL REDEMPTION PERCENTAGE:
ANNUAL PERCENTAGE
REDEMPTION REDUCTION:
AUTHORIZED DENOMINATIONS REDEMPTION PRICE: The Initial
(if other than $1,000 and integral Redemption Percentage, as adjusted
multiples of $1,000 in excess downward by the Annual Percentage
thereof): Redemption Reduction on each
anniversary of the Initial Redemption
FORM: [_] BOOK-ENTRY Date (until the adjusted percentage is
[_] CERTIFICATED 100%), multiplied by the unpaid
Principal Amount of the Note or the
portion thereof to be redeemed.
PAYING AGENT (if other than the
Trustee): OPTION TO ELECT REPAYMENT [_] YES [_] NO
INTEREST RATE: OPTIONAL REPAYMENT DATE(S):
INTEREST PAYMENT DATES: OPTIONAL REPAYMENT PRICE(S):
REGULAR RECORD DATES: OTHER PROVISIONS:
OVERDUE RATE:
DEPOSITARY:
SINKING FUND: [_] YES [_] NO ANNEX ATTACHED (and incorporated
by reference herein): [_] YES [_] NO
AMORTIZING NOTE [_] YES [_] NO
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
as a percentage of
aggregate principal
[_] YES [_] NO amount):
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID:
<PAGE>
MAYTAG CORPORATION, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to _____________________ or registered assigns,
the principal sum specified above on the Stated Maturity shown above, and to pay
interest thereon from and including the Original Issue Date shown above or from
and including the most recent Interest Payment Date (as hereinafter defined) to
which interest has been paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below), at the rate per
annum specified above, until the principal hereof is paid or made available for
payment and on the Stated Maturity, and, if specified above, interest will
accrue on any overdue principal and on any overdue installment of interest (to
the extent that such interest is legally enforceable) at the Overdue Rate per
annum specified above. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered in the Security Register at the close of business on the Regular
Record Date specified above next preceding such Interest Payment Date. The first
payment of interest on any Note originally issued between a Regular Record Date
and the next Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the Holder on such next
succeeding Regular Record Date. Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof is to be
given to Holders of Notes not less than 10 calendar days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
If this Note is a Book-Entry Note as specified above, while this Note is
represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is an Amortizing Note as specified above, principal
on this Note (other than interest, and if this Note is an Amortizing Note,
principal payable at Stated Maturity) will be made by mailing a check to the
Holder at the address of the Holder appearing in the Security Register on the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account designated by the Holder at a bank located in the United
States.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the Corporate Trust Office of the Trustee in The City of
Chicago, Illinois or the Borough of Manhattan, The City of New York, provided
that this Note is presented to the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF AND THE ATTACHED ANNEX, IF ANY, WHICH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or its successor as Trustee, or its
Authenticating Agent, by manual signature of an authorized signatory, this Note
will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MAYTAG CORPORATION
This is one of the Securities of the
series designated therein referred to By:
in the within-mentioned Indenture. -------------------------------
Its:
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee Attest:
---------------------------
By: Its:
---------------------------------- ------------------------------
Authorized Officer
<PAGE>
[Reverse of Note]
MAYTAG CORPORATION
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of June 15, 1987 as
supplemented from time to time (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Note is one of the Securities of the series designated on the
face hereof. The Notes may bear different dates, mature at different times, bear
interest at different rates, be subject to different redemption provisions, if
any, may be subject to different sinking funds, purchase or analagous funds, if
any, and may otherwise vary, all as provided in the Indenture.
SECTION 2. Payments. Interest on this Note will be payable on the Interest
Payment Date or Interest Payment Dates as specified on the face hereof and, in
either case, at Maturity.
Unless otherwise specified on the face hereof, payments on this Note with
respect to any Interest Payment Date or Maturity will include interest accrued
from and including the Original Issue Date, or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, to but excluding such Interest Payment Date or Maturity. Interest on this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
All percentages resulting from any calculation with respect to this Note
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
"Business Day" means, unless otherwise specified on the face hereof, any
Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is
not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close. If the Maturity for this Note falls on a
day that is not a Business Day, payment of principal, premium, if any, and
interest to be made on such day with respect to this Note will be made on the
next day that is a Business Day with the same force and effect as if made on the
due date, and no additional interest will be payable on the date of payment for
the period from and after the due date as a result of such delayed payment.
SECTION 3. Redemption. This Note will be redeemable at the option of the
Company prior to the Stated Maturity only if an Initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such Initial
Redemption Date in whole or from time to time in part in increments of $1,000 or
the minimum denomination, if any, specified on the face hereof (provided that
any remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Indenture. The Company may exercise such option by causing the Trustee to
mail a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note will be
repayable, in whole or in part, prior to Stated Maturity at the option of the
Holder on the Optional Repayment Date or Dates specified on the face hereof at
the Optional Repayment Price or Prices specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of repayment. In order for
this Note to be repaid prior to Stated Maturity, the Paying Agent must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
completed or (ii) a telegram, telex, facsimile transmission or letter (first
class, postage prepaid) from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission or letter. If the procedure described in clause (ii) of the
preceding sentence is followed, this Note with such form duly completed must be
received by the Paying Agent by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note will be irrevocable, except that a
Holder who has tendered this Note for repayment may revoke such tender for
repayment by written notice to the Paying Agent received prior to 5:00 P.M., New
York City time, on the tenth calendar day prior to the Optional Repayment Date.
The repayment option may be exercised by the Holder of this Note for
<PAGE>
less than the entire principal amount of this Note provided that the principal
amount of this Note remaining outstanding after such repayment is an authorized
denomination. Upon such partial repayment this Note will be cancelled and a new
Note or Notes for the remaining principal amount hereof will be issued in the
name of the Holder hereof.
If this Note is a Book-Entry Note as specified on the face hereof, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the option for repayment may be exercised by a
participant that has an account with the Depositary, on behalf of the beneficial
owner of this Note, by delivering a written notice substantially similar to the
form below entitled "Option to Elect Repayment" duly completed to the Trustee at
its Corporate Trust Office (or such other address of which the Company will from
time to time notify the Holders), at least 30 but not more than 60 calendar days
prior to an Optional Repayment Date. A notice of election from a participant on
behalf of the beneficial owner of this Note to exercise the option to have this
Note repaid must be received by the Trustee prior to 5:00 P.M., New York City
time, on the last day for giving such notice. In order to ensure that a notice
is received by the Trustee on a particular day, the beneficial owner of this
Note must so direct the applicable participant before such participant's
deadline for accepting instructions for that day. Different firms may have
different deadlines for accepting instructions from their customers.
Accordingly, the beneficial owner of this Note should consult the participant
through which such beneficial owner owns its interest herein for the deadline
for such participant. All notices shall be executed by a duly authorized officer
of such participant (with signatures guaranteed) and will be irrevocable. In
addition, the beneficial owner of this Note shall effect delivery at the time
such notice of election is given to the Depositary by causing the applicable
participant to transfer such beneficial owner's interest in this Note, on the
Depositary's records, to the Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a sinking fund unless
otherwise specified on the face hereof.
SECTION 6. Original Issue Discount Notes. Notwithstanding anything herein
to the contrary, if this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable in the event the principal amount hereof is
declared to be due and payable immediately by reason of an Event of Default or
in the event of redemption or repayment hereof prior to the Stated Maturity
hereof, in lieu of the principal amount due at the Stated Maturity hereof, will
be the Amortized Face Amount of this Note as of the date of declaration,
redemption or repayment, as the case may be. The "Amortized Face Amount" of this
Note will be the amount equal to (a) the principal amount of this Note
multiplied by the Issue Price specified on the face hereof plus (b) the portion
of the difference between the dollar amount determined pursuant to the preceding
clause (a) and the principal amount hereof that has accreted at the Yield to
Maturity specified on the face hereof (computed in accordance with generally
accepted United States bond yield computation principles) to such date of
declaration, redemption or repayment but in no event will the Amortized Face
Amount of this Note exceed its principal amount.
SECTION 7. Events of Default. If any Event of Default with respect to Notes
of this series shall occur and be continuing, the principal of the Notes of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared to be due and payable will be the Amortized Face Amount of
this Note as of the date of such declaration as specified under Section 6.
SECTION 8. Modification or Waiver; Obligation of the Company Absolute. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than 66% in principal amount of the Outstanding Securities
of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all Securities of such
series, to waive, with respect to the Securities of such series, compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note will be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates herein prescribed.
SECTION 9. Discharge, Legal Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related Events of Default upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
SECTION 10. Authorized Denominations. Unless otherwise specified on the
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, Notes of this series are exchangeable for Notes
of this series of like aggregate principal amount and like Stated Maturity and
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.
SECTION 11. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar (which will initially be the Trustee at
its Corporate Trust Office located in The City of Chicago, Illinois or the
Borough of Manhattan, The City of New York), duly
<PAGE>
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series with like terms and conditions of
authorized denominations and for the same Stated Maturity and aggregate
principal amount, will be issued to the designated transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Third Supplemental Indenture dated as of August 20, 1996. Except
as provided in the Indenture, owners of beneficial interests in this Book-Entry
Note will not be entitled to receive physical delivery of Notes in certificated
registered Indenture, form and will not be considered the Holders thereof for
any purpose under the Indenture.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 12. Owners. Prior to due presentment of this Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue and notwithstanding
any notation of ownership or other writing hereon, and none of the Company, the
Trustee or any such agent will be affected by notice to the contrary.
SECTION 13. Governing Law. The Indenture and the Notes will be governed by
and construed in accordance with the laws of the State of Illinois.
SECTION 14. Defined Terms. All terms used in this Note which are defined in
the Indenture will have the meanings assigned to them in the Indenture unless
otherwise defined in the Third Supplemental Indenture dated as of August 20,
1996 or herein; and all references in the Indenture to "Security" or
"Securities" will be deemed to include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company repay the principal amount of this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof plus accrued and unpaid interest to but excluding the date of repayment
pursuant to Section 4 of this Note.
<TABLE>
<CAPTION>
<S> <C>
Dated:______________________ ________________________________________
Signature
Sign exactly as name appears on the front
of this Note.
Indicate address where check is to be sent,
if repaid:
__________________________________________
__________________________________________
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
___________________________________________
</TABLE>
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT Custodian
=========================================
(Cust) (Minor)
Under Uniform Gifts to Minors Act
=========================================
(State)
Additional abbreviations may also be used though not in the above
list.
-------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
[ ]
---------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______________________________attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
Dated:
------------------ --------------------------------------------
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
Exhibit 4.3
[Face of Note]
CUSIP NO. MAYTAG CORPORATION PRINCIPAL AMOUNT: $
------- ---
REGISTERED NO. FL ___ MEDIUM-TERM NOTE, SERIES B
Due from Nine Months to 30 Years from Date of Issue
If this Note is a Book-Entry Note, the registered owner of this Note
(as indicated below) is The Depository Trust Company (the "Depositary") or a
nominee of the Depositary, and the following legend is applicable: Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co., or to such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
ORIGINAL ISSUE DATE: OVERDUE RATE:
STATED MATURITY: SINKING FUND: [_] YES [_] NO
AUTHORIZED DENOMINATIONS CALCULATION AGENT:
(If other than $1,000 and integral
multiples of $1,000 in excess thereof): AMORTIZING NOTE: [_] YES [_] NO
FORM: [_] BOOK-ENTRY
[_] CERTIFICATED
PAYING AGENT (If other than the Trustee): OPTIONAL REDEMPTION: [_] YES [_] NO
INTEREST RATE BASIS: INITIAL REDEMPTION DATE:
INDEX MATURITY: INITIAL REDEMPTION
PERCENTAGE:
INTEREST PAYMENT DATES:
ANNUAL PERCENTAGE
REGULAR RECORD DATES: REDEMPTION REDUCTION:
INITIAL INTEREST RATE:
MAXIMUM INTEREST RATE: REDEMPTION PRICE: The Initial
Redemption Percentage, as adjusted
MINIMUM INTEREST RATE: downward by the Annual Percentage
Redemption Reduction on each
SPREAD: anniversary of the Initial
Redemption Date (until the adjusted
SPREAD MULTIPLIER: percentage is 100%), multiplied by
the unpaid Principal Amount of the
Note or the portion thereof to be
redeemed.
RESET PERIOD: OPTION TO ELECT REPAYMENT:
[_] YES [_] NO
INTEREST RESET DATES: OPTIONAL REPAYMENT DATE(S):
INTEREST DETERMINATION DATES: OPTIONAL REPAYMENT PRICE(S):
OTHER PROVISIONS:
ANNEX ATTACHED (and incorporated
by reference herein):
[_] YES [_] NO
<PAGE>
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
DISCOUNT NOTE: as a percentage of aggregate
principal amount):
[_] Yes [_] No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID:
MAYTAG CORPORATION , a corporation duly organized and existing under the
laws of Delaware (herein called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ___________________________________________
or registered assigns, the principal sum specified above on the Stated Maturity
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or duly provided for, as
the case may be.
Interest will be paid on the Interest Payment Date or Dates specified
above, at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Interest Rate Basis, the Spread, if any, and/or
the Spread Multiplier, if any, specified above, commencing with the first such
Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below) until the principal hereof is paid or made available
for payment and on the Stated Maturity, and, if specified above, interest will
accrue on any overdue principal and on any overdue installment of interest (to
the extent such interest is legally enforceable) at the Overdue Rate per annum
specified above. The interest so payable and punctually paid or duly provided
for on any Interest Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered in the Security Register at the close of business on the Regular
Record Date specified above next preceding such Interest Payment Date. The first
payment of interest on any Note originally issued between a Regular Record Date
and the next Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the Holder on such next
succeeding Regular Record Date. Except as otherwise provided in the Indenture,
any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof is to be
given to Holders of Notes not less than 10 calendar days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
If this Note is a Book-Entry Note as specified above, while this Note is
represented by one or more Book-Entry Notes registered in the name of the
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depositary or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. If
this Note is a Book-Entry Note as specified above, the following legend is
applicable except as specified on the reverse hereof: THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR.
If this Note is a certificated Note as specified above, payments of
interest and, if this Note is an Amortizing Note as specified above, principal
on this Note (other than interest, and if this Note is an Amortizing Note,
principal payable at Stated Maturity) will be made by mailing a check to the
Holder at the address of the Holder appearing in the Security Register on the
applicable Regular Record Date. Notwithstanding the foregoing, at the option of
the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account designated by the Holder at a bank located in the United
States.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment or
governmental charge imposed upon the Holder of this Note. If this Note is a
certificated Note as specified above, payment of the principal, premium, if any,
and interest payable at Maturity in respect of this Note will be made in
immediately available funds upon surrender of this Note accompanied by wire
instructions at the Corporate Trust Office of the Trustee in the City of
Chicago, Illinois or in the Borough of Manhattan, The City of New York, provided
that this Note is presented to the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF OR THE ATTACHED ANNEX, IF ANY, WHICH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, or its successor as Trustee, or its
Authenticating Agent, by manual signature of an authorized signatory, this Note
will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MAYTAG CORPORATION
This is one of the Securities of the
series designated therein referred to By:
in the within-mentioned Indenture. -------------------------------
Its:
---------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee Attest:
---------------------------
By: Its:
---------------------------------- ---------------------------
Authorized Officer
<PAGE>
[Reverse of Note]
MAYTAG CORPORATION
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of June 15, 1987, as
supplemented from time to time (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Note is one of the Securities of the series designated on the
face hereof. The Notes may bear different dates, mature at different times, bear
interest at different rates, be subject to different redemption provisions, if
any, may be subject to different sinking funds, purchase or analagous funds, if
any, and may otherwise vary, all as provided in the Indenture.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on this
Note will be equal to either (i) the interest rate calculated by reference to
the Interest Rate Basis specified on the face hereof plus or minus the Spread,
if any, (ii) the interest rate calculated by reference to the Interest Rate
Basis specified on the face hereof multiplied by the Spread Multiplier, if any
or (iii) the interest rate calculated by reference to the Interest Rate Basis
specified on the face hereof plus or minus the Spread, if any, and multiplied by
the Spread Multiplier, if any. The "Spread" is the number of basis points (one
basis point equals one-hundredth of a percentage point) specified on the face
hereof as being applicable to this Note, and the "Spread Multiplier" is the
percentage specified on the face hereof as being applicable to this Note.
Specified on the face hereof is the Interest Rate Basis and the Spread and/or
Spread Multiplier, if any, and the maximum or minimum interest rate, if any,
applicable to this Note. Specified on the face hereof are particulars as to the
Calculation Agent (unless otherwise specified, The First National Bank of
Chicago (in such capacity, the "Calculation Agent")), Index Maturity, Original
Issue Date, the interest rate in effect for the period from the Original Issue
Date to the first Interest Reset Date specified on the face hereof (the "Initial
Interest Rate"), Interest Determination Dates, Interest Payment Dates, Regular
Record Dates and Interest Reset Dates with respect to this Note.
Except as provided below, the Interest Payment Dates for the payment of
interest and, if this Note is an Amortizing Note, principal on this Note will be
(i) if this Note resets daily, weekly or monthly, the third Wednesday of each
month or the third Wednesday of March, June, September and December of each
year, as specified on the face hereof; (ii) if this Note resets quarterly, the
third Wednesday of March, June, September and December of each year, as
specified on the face hereof; (iii) if this Note resets semiannually, the third
Wednesday of the two months of each year specified on the face hereof; and (iv)
if this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof and, in each case, at Maturity. If any Interest
Payment Date, other than Maturity, for this Note is not a Business Day for this
Note, such Interest Payment Date will be postponed to the next day that is a
Business Day for this Note, except that if the Interest Rate Basis specified on
the face hereof is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the immediately preceding
London Business Day. If the Maturity for this Note falls on a day that is not a
Business Day, payment of principal, premium, if any, and interest to be made on
such day with respect to this Note will be made on the next day that is a
Business Day with the same force and effect as if made on the due date, and no
additional interest will be payable on the date of payment for the period from
and after the due date as a result of such delayed payment.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semiannually or annually (such period being the "Reset Period" for
this Note, and the first day of each Reset Period being an "Interest Reset
Date"), as specified on the face hereof. Unless otherwise specified on the face
hereof, the Interest Reset Date will be, if this Note resets daily, each
Business Day for this Note; if this Note resets weekly (unless the Interest Rate
Basis specified on the face hereof is the Treasury Rate), the Wednesday of each
week; if this Note resets weekly and the Interest Rate Basis specified on the
face hereof is the Treasury Rate, the Tuesday of each week (except as specified
below); if this Note resets monthly (unless the Interest Rate Basis specified on
the face hereof is the 11th District Cost of Funds Rate), the third Wednesday of
each month; if this Note resets monthly and the Interest Rate Basis specified on
the face hereof is the 11th District Cost of Funds Rate, the first calendar day
of the month; if this Note resets quarterly, the third Wednesday of each March,
June, September and December; if this Note resets semiannually, the third
Wednesday of the two months of each year specified on the face hereof; and if
this Note resets annually, the third Wednesday of the one month of each year
specified on the face hereof; provided, however, that the interest rate in
effect from the Original Issue Date to but excluding the first Interest Reset
Date will be the Initial Interest Rate specified on the face hereof. If the
Interest Reset Date is not a Business Day for this Note, the Interest Reset Date
will be postponed to the next day that is a Business Day for this Note, except
that if the Interest Rate Basis specified on the face hereof is LIBOR, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
will be the immediately preceding London Business Day. Each adjusted rate will
be applicable on and after the Interest Reset Date to which it relates to but
excluding the next succeeding Interest Reset Date or until Maturity.
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent on the Calculation Date (as defined below) pertaining to the
Interest Determination Date pertaining to the Interest Reset Date for such Reset
Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date (a) if the Interest
Rate Basis specified on the face hereof is Commercial Paper Rate (the
"Commercial Paper Interest Determination Date"), (b) if the Interest Rate Basis
specified on the face hereof is CD Rate (the "CD Interest Determination Date'),
(c) if the Interest Rate Basis specified on the face hereof is CMT Rate (the
"CMT Interest Determination Date"), (d) if the Interest Rate Basis specified on
the face hereof is Federal Funds Rate (the "Federal Funds Interest Determination
Date"), (e) if the Interest Rate Basis specified on the face hereof is Kenny
Rate (the "Kenny Rate Interest Determination Date") or (f) if the Interest Rate
Basis specified on the face hereof is Prime Rate (the "Prime Interest
Determination Date"), will be the second Business Day prior to such Interest
Reset Date as specified on the face hereof. Unless otherwise specified on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date, if the Interest Rate Basis specified on the face hereof is 11th District
Cost of Funds Rate (the "11th District Interest Determination Date"), will be
the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below under "Determination of 11th
District Cost of Funds Rate"). Unless otherwise specified on the face hereof,
the Interest Determination Date pertaining to an Interest Reset Date, if the
Interest Rate Basis specified on the face hereof is LIBOR (the "LIBOR Interest
Determination Date"), will be the second London Business Day immediately
preceding such Interest Reset Date. Unless otherwise specified on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date, if
the Interest Rate Basis specified on the face hereof is Treasury Rate (the
"Treasury Interest Determination Date"), will be the day of the week in which
such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is usually held on
the following Tuesday, except that such auction may be held on the preceding
Friday. If an auction is so held on the preceding Friday, such Friday will be
the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date falls on any Interest
Reset Date for this Note (if the Interest Rate Basis specified on the face
hereof is Treasury Rate), then such Interest Reset Date will instead be the
first Business Day immediately following such auction date. Unless otherwise
specified on the face hereof, the "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of (i) the tenth calendar day after the
Interest Determination Date or, if
<PAGE>
such day is not a Business Day, the next day that is a Business Day, or (ii) the
Business Day preceding the applicable Interest Payment Date or Maturity, as the
case may be.
"Business Day" means, unless otherwise specified on the face hereof, any
Monday, Tuesday, Wednesday, Thursday or Friday that in The City of New York is
not a day on which banking institutions are authorized or obligated by law,
regulation or executive order to close and, if the Interest Rate Basis specified
on the face hereof is LIBOR, is also a London Business Day. "London Business
Day" means any day (a) if the Designated LIBOR Currency is other than the ECU,
on which dealings in deposits in such Designated LIBOR Currency are transacted
in the London interbank market or (b) if the Designated LIBOR Currency is the
ECU, that is not designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payments on ECUs will not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the face
hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect to this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Unless otherwise specified on the face hereof, payments on this Note with
respect to any Interest Payment Date or Maturity will include interest accrued
from and including the Original Issue Date, or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, to but excluding such Interest Payment Date or Maturity. Accrued interest
is calculated by multiplying the principal amount of this Note by an accrued
interest factor. This accrued interest factor is computed by adding the interest
factors calculated for each day from and including the Original Issue Date, or
from and including the last date to which interest has been paid or duly
provided for, to but excluding the date for which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable to such day by 360, if the Interest Rate Basis
specified on the face hereof is Commercial Paper Rate, CD Rate, Federal Funds
Rate, 11th District Cost of Funds Rate, LIBOR or Prime Rate, or by the actual
number of days in the year, if the Interest Rate Basis specified on the face
hereof is CMT Rate or Treasury Rate, or by 365 days if the Interest Rate Basis
specified on the face hereof is Kenny Rate.
The Calculation Agent will calculate the interest rate on this Note, as
provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to this
Note. For purposes of calculating the rate of interest payable on this Note, the
Company has entered into or will enter into an agreement with the Calculation
Agent. The Calculation Agent's determination of any interest rate will be final
and binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided below,
the interest rate on this Note for any interest period will not be greater than
the maximum interest rate, if any, or less than the minimum interest rate, if
any, specified on the face hereof. The interest rate on this Note will in no
event be higher than the maximum rate permitted by Illinois or other applicable
law, as the same may be modified by United States law of general application.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis specified on
the face hereof is Commercial Paper Rate, the interest rate determined with
respect to any Commercial Paper Interest Determination Date will be the
Commercial Paper Rate on such Commercial Paper Interest Determination Date plus
or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any,
as specified on the face hereof.
Unless otherwise specified on the face hereof, "Commercial Paper Rate"
means, with respect to any Commercial Paper Interest Determination Date, the
Money Market Yield (calculated as described below) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication of the Board of Governors ("H.15(519)") under the heading
"Commercial Paper." In the event that such rate is not published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such Commercial
Paper Interest Determination Date, then the Commercial Paper Rate with respect
to such Commercial Paper Interest Determination Date will be the Money Market
Yield of the rate on such Commercial Paper Interest Determination Date for
commercial paper having the Index Maturity specified on the face hereof as
published by the Federal Reserve Bank of New York in its daily statistical
release "Composite 3:30 P.M. Quotations for U.S. Government Securities" or any
successor publication ("Composite Quotations") under the heading "Commercial
Paper." If by 3:00 P.M., New York City time, on such Calculation Date such rate
is not published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be calculated by the Calculation Agent and will be the
Money Market Yield of the arithmetic mean of the offered rates (quoted on a bank
discount basis) as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
securities rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date will be the Commercial Paper Rate in effect
immediately prior to such Commercial Paper Interest Determination Date.
"Money Market Yield" will be a yield (expressed as a percentage rounded, if
necessary, to the nearest one hundred-thousandth of a percent) calculated in
accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
DETERMINATION OF CD RATE. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to any CD Interest
Determination Date will be the CD Rate on such CD Interest Determination Date
plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if
any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published in H.15(519) under the heading "CDs (Secondary
Market)." In the event that such rate is not published prior to 9:00 A.M., New
York City time, on the Calculation Date pertaining to such CD Interest
<PAGE>
Determination Date, then the CD Rate with respect to such CD Interest
Determination Date will be the rate on such CD Interest Determination Date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published in Composite Quotations under the heading "Certificates
of Deposit." If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or Composite Quotations, then the CD
Rate with respect to such CD Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the secondary market
offered rates as of 10:00 A.M., New York City time, on such CD Interest
Determination Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money market
banks (in the market for negotiable certificates of deposit) with a remaining
maturity closest to the Index Maturity specified on the face hereof in a
denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date.
DETERMINATION OF CMT RATE. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to any CMT
Interest Determination Date will be the CMT Rate on such CMT Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, as specified on the face hereof.
Unless otherwise specified on the face hereof, "CMT Rate" means, with
respect to any CMT Interest Determination Date, the rate displayed on the
Designated CMT Telerate Page (as defined below) under the caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . .
Mondays Approximately 3:45 P.M.," under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, such CMT Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as specified on the face hereof,
ended immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate with
respect to such CMT Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate with respect to such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, then the CMT Rate with respect to such CMT Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market closing offer side prices
as of approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate with respect to
such CMT Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
the CMT Interest Determination Date of three Reference Dealers in The City of
New York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate with respect to such
CMT Interest Determination Date will be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of such quotes will
be eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT Rate
will be the CMT Rate in effect immediately prior to such CMT Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purpose of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page will be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the Treasury Notes (either one, two, three, five, seven, ten, twenty or thirty
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index will be two years.
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with respect
to any Federal Funds Interest Determination Date will be the Federal Funds Rate
on such Federal Funds Interest Determination Date plus or minus the Spread, if
any, and/or multiplied by the Spread Multiplier, if any, specified on the face
hereof.
Unless otherwise specified on the face hereof, "Federal Funds Rate" means,
with respect to any Federal Funds Interest Determination Date, the rate on such
date for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)." In the event that such rate is not published prior to 3:00
P.M., New York City time, on the Calculation Date pertaining to such Federal
Funds Interest Determination Date, then the Federal Funds Rate will be the rate
on such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00 P.M.,
New York City time, on such Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, then the Federal Funds Rate with
respect to such Federal Funds Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean (rounded, if necessary, to
the nearest one hundred-thousandth of a percent) of the rates as of 9:00 A.M.,
New York City time, on such Federal Funds Interest Determination Date for the
last transaction in overnight Federal Funds arranged by three leading brokers of
Federal Funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate with respect to such Federal Funds Interest Determination Date will
be the Federal Funds Rate in effect immediately prior to such Federal Funds
Interest Determination Date.
DETERMINATION OF 11TH DISTRICT COST OF FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to any 11th District Interest Determination Date
will be the 11th District Cost of Funds Rate on such 11th District Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
<PAGE>
Unless otherwise specified on the face hereof, "11th District Cost of Funds
Rate" means, with respect to any 11th District Interest Determination Date, the
rate equal to the monthly weighted average cost of funds for the calendar month
preceding such 11th District Interest Determination Date as set forth under the
caption "11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco
time, on such 11th District Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related 11th District Interest Determination
Date, the 11th District Cost of Funds Rate for such 11th District Interest
Determination Date will be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such cost
of funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such 11th District Interest Determination Date, then the 11th District
Cost of Funds Rate with respect to such 11th District Interest Determination
Date will be the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date.
KENNY RATE NOTES. If the Interest Rate Basis specified on the face hereof is
Kenny Rate, the interest rate determined with respect to any Kenny Rate Interest
Determination Date will be the Kenny Rate on such Kenny Rate Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Kenny Rate" means, with
respect to any Kenny Rate Interest Determination Date, the high grade weekly
index (the "Weekly Index") on such date made available by J.J. Kenny Information
Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and will be,
based upon 30 day yield evaluations at par of bonds, the interest on which is
exempt from Federal income taxation under the Internal Revenue Code of 1986, as
amended (the "Code"), of not less than five high grade component issuers
selected by Kenny which will include, without limitation, issuers of general
obligation bonds. The specified issuers included among the component issuers may
be changed from time to time by Kenny in its discretion. The bonds on which the
Weekly Index is based will not include any bonds on which the interest is
subject to a minimum tax or similar tax under the Code unless all tax-exempt
bonds are subject to such tax. In the event Kenny ceases to make available such
Weekly Index, a successor indexing agent will be selected by the Calculation
Agent, such index to reflect the prevailing rate for bonds rated in the highest
short-term rating category by Moody's Investors Service, Inc. and Standard &
Poor's Corporation in respect of issuers most closely resembling the high grade
component issuers selected by Kenny for its Weekly Index, the interest on which
is (A) variable on a weekly basis, (B) exempt from Federal income taxation under
the Code and (C) not subject to a minimum tax or similar tax under the Code
unless all tax-exempt bonds are subject to such tax. If such successor indexing
agent is not available, the Kenny Rate with respect to any Kenny Rate Interest
Determination Date will be 67% of the rate determined as if the Treasury Rate
option had been originally selected.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to any LIBOR Interest
Determination Date will be LIBOR on such LIBOR Interest Determination Date plus
or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if any,
specified on the face hereof.
Unless otherwise specified on the face hereof, LIBOR means, with respect to
any LIBOR Interest Determination Date, the rate determined by the Calculation
Agent in accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in
which case such single rate will be used) for deposits in the Designated
LIBOR Currency (as defined below) having the Index Maturity specified on
the face hereof, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, which appear on the
Designated LIBOR Page specified on the face hereof as of 11:00 A.M., London
time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required)
on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on
the face hereof, the rate for deposits in the Designated LIBOR Currency
having the Index Maturity specified on the face hereof, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date, which appears on the Designated LIBOR Page specified on
the face hereof as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date. Notwithstanding the foregoing, if fewer than two
offered rates appear on the Designated LIBOR Page with respect to LIBOR
Reuters (unless the specified Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate will be used), or if
no rate appears on the Designated LIBOR Page with respect to LIBOR
Telerate, whichever may be applicable, LIBOR with respect to such LIBOR
Interest Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with
respect to LIBOR Reuters (unless the Designated LIBOR Page by its terms
provides only for a single rate, in which case such single rate will be
used), or if no rate appears on the Designated LIBOR Page with respect to
LIBOR Telerate, as the case may be, the Calculation Agent will request the
principal London office of each of four major banks in the London interbank
market selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in the Designated LIBOR
Currency for the period of the Index Maturity specified on the face hereof,
commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, to prime banks in the London interbank
market as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at such time.
If at least two such quotations are provided, LIBOR with respect to such
LIBOR Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR with respect to such LIBOR Interest
Determination Date will be the arithmetic mean of the rates quoted as of
11:00 A.M. in the applicable Principal Financial Center (as defined below),
on such LIBOR Interest Determination Date by three major banks in such
Principal Financial Center selected by the Calculation Agent for loans in
the Designated LIBOR Currency to leading European banks, commencing on the
second London Business Day immediately following such LIBOR Interest
Determination Date having the Index Maturity specified on the face hereof
in a principal amount that is representative for a single transaction in
such Designated LIBOR Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will be LIBOR in effect immediately prior to
such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated on the face hereof, the Designated
LIBOR Currency will be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is specified on the face hereof), or (b) the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank rates of
major banks for the applicable designated LIBOR Currency (if "LIBOR Telerate" is
specified on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is
specified on the face hereof, LIBOR for the applicable Designated LIBOR Currency
will be determined as if LIBOR Telerate (and, if the U.S. dollar is the
Designated LIBOR Currency, page 3750) had been chosen.
<PAGE>
"Principal Financial Center" means, unless otherwise specified on the face
hereof, the capital city of the country that issues as its legal tender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center will be The City of New York and
Brussels, respectively.
DETERMINATION OF PRIME RATE. If the Interest Rate Basis specified on the face
hereof is Prime Rate, the interest rate determined with respect to any Prime
Interest Determination Date will be the Prime Rate on such Prime Interest
Determination Date plus or minus the Spread, if any, and/or multiplied by the
Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Prime Rate" means, with
respect to any Prime Interest Determination Date, the rate on such date as
published in H.15(519) under the heading "Bank Prime Loan." In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Prime Interest Determination Date, then the
Prime Rate with respect to such Prime Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of the rates
of interest publicly announced by each bank that appears on the Reuters Screen
USPRIME1 as such bank's prime rate or base lending rate as in effect with
respect to such Prime Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 with respect to such Prime Interest
Determination Date, the Prime Rate with respect to such Prime Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on such Prime
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent. If fewer than
two quotations are provided, the Prime Rate with respect to such Prime Interest
Determination Date will be determined on the basis of the rates furnished in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States, or
any state thereof, having total equity capital of at least U.S. $500,000,000 and
being subject to supervision or examination by Federal or state authority,
selected by the Calculation Agent to provide such rate or rates; provided,
however, that if the appropriate number of substitute banks or trust companies
selected as aforesaid are not quoting as mentioned in this sentence, the Prime
Rate with respect to such Prime Interest Determination Date will be the Prime
Rate in effect immediately prior to such Prime Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1" on the
Reuters Monitor Money Rate Service (or such other page as may replace the
USPRIME1 page on the service for the purpose of displaying the prime rate or
base lending rate of major banks).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to any
Treasury Interest Determination Date will be the Treasury Rate on such Treasury
Interest Determination Date plus or minus the Spread, if any, and/or multiplied
by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "Treasury Rate" means, with
respect to any Treasury Interest Determination Date, the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in H.15(519)
under the heading, "Treasury bills -- auction average (investment)" or, if not
so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, the average auction
rate on such Treasury Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that such rate is not available by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, or if no such auction is held in a particular week, then the
Treasury Rate with respect to such Treasury Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity (expressed
as a bond equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury
Interest Determination Date, of three leading primary U.S. government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate with
respect to such Treasury Interest Determination Date will be the Treasury Rate
in effect immediately prior to such Treasury Interest Determination Date.
The Calculation Agent will calculate the interest rate on this Note in
accordance with the foregoing no later than the Calculation Date. The
Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
All percentages resulting from any calculation with respect to this Note
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Note will be rounded to the nearest cent (with one-half
cent being rounded upward).
SECTION 3. Redemption. This Note will be redeemable at the option of the
Company prior to the Stated Maturity only if an Initial Redemption Date is
specified on the face hereof. If so specified, this Note will be subject to
redemption at the option of the Company on any date on and after such Initial
Redemption Date in whole or from time to time in part in increments of $1,000 or
the minimum denomination, if any, specified on the face hereof (provided that
any remaining principal amount hereof shall be at least $1,000 or such minimum
denomination), at the Redemption Price specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of redemption, but
payments due with respect to this Note prior to the date of redemption will be
payable to the Holder of this Note of record at the close of business on the
relevant Regular Record Date specified on the face hereof, all as provided in
the Indenture. The Company may exercise such option by causing the Trustee to
mail a notice of such redemption, at least 30 but not more than 60 calendar days
prior to the date of redemption, in accordance with the provisions of the
Indenture. In the event of redemption of this Note in part only, this Note will
be cancelled and a new Note or Notes representing the unredeemed portion hereof
will be issued in the name of the Holder hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note will be
repayable, in whole or in part, prior to Stated Maturity at the option of the
Holder on the Optional Repayment Date or Dates specified on the face hereof at
the Optional Repayment Price or Prices specified on the face hereof, plus
accrued and unpaid interest to but excluding the date of repayment. In order for
this Note to be repaid prior to Stated Maturity, the Paying Agent must receive
at least 30 but not more than 45 calendar days prior to an Optional Repayment
Date (i) this Note with the form below entitled "Option to Elect Repayment" duly
completed or (ii) a telegram, telex, facsimile transmission or letter (first
class, postage prepaid) from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the Holder of this Note,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised thereby
and a guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission or letter. If the procedure described in clause (ii) of the
preceding sentence is followed, this Note with such form duly completed must be
received by the Paying Agent by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note will be irrevocable, except that a
Holder who has tendered this Note for repayment may revoke such tender for
repayment by written notice to the Paying Agent received prior to 5:00 P.M., New
York City time, on the tenth calendar day prior to the Optional Repayment Date.
The repayment option may be exercised by the Holder of this Note for less than
the entire principal amount of this Note provided that the principal amount of
this Note remaining outstanding after such repayment is an authorized
denomination. Upon such partial repayment this Note will be cancelled and a new
Note or Notes for the remaining principal amount hereof will be issued in the
name of the Holder hereof.
<PAGE>
If this Note is a Book-Entry Note as specified on the face hereof, while
this Note is represented by one or more Book-Entry Notes registered in the name
of the Depositary or its nominee, the option for repayment may be exercised by a
participant that has an account with the Depositary, on behalf of the beneficial
owner of this Note, by delivering a written notice substantially similar to the
form below entitled "Option to Elect Repayment" duly completed to the Trustee at
its Corporate Trust Office (or such other address of which the Company will from
time to time notify the Holders), at least 30 but not more than 60 calendar days
prior to an Optional Repayment Date. A notice of election from a participant on
behalf of the beneficial owner of this Note to exercise the option to have this
Note repaid must be received by the Trustee prior to 5:00 P.M., New York City
time, on the last day for giving such notice. In order to ensure that a notice
is received by the Trustee on a particular day, the beneficial owner of this
Note must so direct the applicable participant before such participant's
deadline for accepting instructions for that day. Different firms may have
different deadlines for accepting instructions from their customers.
Accordingly, the beneficial owner of this Note should consult the participant
through which such beneficial owner owns its interest herein for the deadline
for such participant. All notices shall be executed by a duly authorized officer
of such participant (with signatures guaranteed) and will be irrevocable. In
addition, the beneficial owner of this Note shall effect delivery at the time
such notice of election is given to the Depositary by causing the applicable
participant to transfer such beneficial owner's interest in this Note, on the
Depositary's records, to the Trustee.
SECTION 5. Sinking Fund. This Note is not subject to a sinking fund unless
otherwise specified on the face hereof.
SECTION 6. Original Issue Discount Notes. Notwithstanding anything herein
to the contrary, if this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable in the event the principal amount hereof is
declared to be due and payable immediately by reason of an Event of Default or
in the event of redemption or repayment hereof prior to the Stated Maturity
hereof, in lieu of the principal amount due at the Stated Maturity hereof, will
be the Amortized Face Amount of this Note as of the date of declaration,
redemption or repayment, as the case may be. The "Amortized Face Amount" of this
Note will be the amount equal to (a) the principal amount of this Note
multiplied by the Issue Price specified on the face hereof plus (b) the portion
of the difference between the dollar amount determined pursuant to the preceding
clause (a) and the principal amount hereof that has accreted at the Yield to
Maturity specified on the face hereof (computed in accordance with generally
accepted United States bond yield computation principles) to such date of
declaration, redemption or repayment but in no event will the Amortized Face
Amount of this Note exceed its principal amount.
SECTION 7. Events of Default. If any Event of Default with respect to Notes
of this series shall occur and be continuing, the principal of the Notes of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared to be due and payable will be the Amortized Face Amount of
this Note as of the date of such declaration as specified under Section 6.
SECTION 8. Modification or Waiver; Obligation of the Company Absolute. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than 66% in principal amount of the Outstanding Securities
of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all Securities of such
series, to waive, with respect to the Securities of such series, compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note will be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture will alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, herein prescribed.
SECTION 9. Discharge, Legal Defeasance and Covenant Defeasance. The
Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Note and (b) certain restrictive covenants
and the related Events of Default upon compliance by the Company with certain
conditions specified therein, which provisions apply to this Note.
SECTION 10. Authorized Denominations. Unless otherwise specified on the
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $1,000 and
integral multiples of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, Notes of this series are exchangeable for Notes
of this series of like aggregate principal amount and like Stated Maturity and
with like terms and conditions of a different authorized denomination, as
requested by the Holder surrendering the same.
SECTION 11. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein specified and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar (which will initially be the Trustee at
its Corporate Trust Office located in The City of Chicago, Illinois or the
Borough of Manhattan, The City of New York) duly executed by the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Notes
of this series with like terms and conditions, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
If this Note is a Book-Entry Note as specified on the face hereof, this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Third Supplemental Indenture dated as of August 20, 1996. Except
as provided in the Indenture, owners of beneficial interests in this Book-Entry
Note will not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Indenture.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 12. Owners. Prior to due presentment of this Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue and notwithstanding
any notation of ownership or other writing hereon, and none of the Company, the
Trustee or any such agent will be affected by notice to the contrary.
SECTION 13. Governing Law. The Indenture and the Notes will be governed by
and construed in accordance with the laws of the State of Illinois.
<PAGE>
SECTION 14. Defined Terms. All terms used in this Note which are defined in
the Indenture will have the meanings assigned to them in the Indenture unless
otherwise defined in the Third Supplemental Indenture dated as of August 20,
1996 or herein; and all references in the Indenture to "Security" or
"Securities" will be deemed to include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company repay the principal amount of this Note or portion hereof below
designated at the applicable Optional Repayment Price indicated on the face
hereof plus accrued and unpaid interest to but excluding the date of repayment
pursuant to Section 4 of this Note.
<TABLE>
<CAPTION>
<S> <C>
Dated:______________________ ________________________________________
Signature
Sign exactly as name appears on the front
of this Note.
Indicate address where check is to be sent,
if repaid:
__________________________________________
__________________________________________
SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
___________________________________________
</TABLE>
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, will be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT Custodian
=========================================
(Cust) (Minor)
Under Uniform Gifts to Minors Act
=========================================
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
[ ]
------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated:
--------------- --------------------------------------------
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by a
member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
