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S & S DRAFT
6/24/94
EXHIBIT 1.2
The Dial Corp
$500,000,000 Medium-Term Notes
Due More Than Nine Months
From Date of Issue
Selling Agency Agreement
___________, 199_
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Citicorp Securities Markets, Inc.
55 Water Street
New York, New York 10041
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
The Dial Corp, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by
the Company of up to $500,000,000 aggregate principal amount of its
Medium-Term Notes, Due More Than Nine Months From Date of Issue (the
"Notes"). The Notes will be issued under an indenture (the
"Indenture") dated as of April 1, 1993 between the Company and The
Chase Manhattan Bank, N.A., as trustee (the "Trustee"). Unless
otherwise specifically provided for and set forth in a Pricing
Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount
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by integral multiples of $1,000, will be issued only in fully registered
form and will have the interest rates, maturities and, if applicable,
other terms set forth in such Pricing Supplement. The Notes will be
issued, and the terms thereof established, in accordance with the
Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as
defined in Section 2(b)) modifies or otherwise supersedes such
Procedures with respect to the Notes issued pursuant to such Terms
Agreement). The Procedures may be amended only by written agreement of
the Company and you after notice to, and with the approval of, the
Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you acting solely in the capacity of agent for the
Company pursuant to Section 2(a) and not as principal (collectively,
the "Agents"), the term "Purchaser" shall refer to one of you acting
solely as principal pursuant to Section 2(b) and not as agent, and the
term "you" shall refer to you collectively whether at any time any of
you is acting in both such capacities or in either such capacity. In
acting under this Agreement, in whatever capacity, each of you is
acting individually and not jointly.
1. Representations and Warranties.
_______________________________
The Company represents and warrants to, and agrees with, you as set forth
below in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such Form or Schedule (File Number:
33-________), including a basic prospectus, which has become
effective, for the registration under the Act of $500,000,000
aggregate principal amount of debt securities (the "Securities"),
including the Notes. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in
such registration statement, or has filed or will file with the
Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act, a supplement to the form of prospectus included in
such registration statement relating to the Notes and the plan of
distribution thereof (the "Prospectus Supplement"). In connection
with the sale of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act further supplements to the Prospectus Supplement
(each a "Pricing Supplement") specifying the interest rates,
maturity dates and, if appropriate, other similar terms of the
Notes sold pursuant hereto or the offering thereof. The
Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission.
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(b) As of the Execution Time, on the Effective Date, when
any supplement to the Prospectus is filed with the Commission, as
of the date of a Terms Agreement and at the date of delivery by
the Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statement, as amended as of any such time, and
the Prospectus, as supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and (iii) the Prospectus, as supplemented as of any such time,
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) Each of the Company, Aircraft Service International,
Inc., Exhibit Group Inc., Dobbs International Services, Inc.,
GES Exposition Services, Inc., Greyhound Leisure Services,
Inc., Premier Cruise Lines, Ltd., Jetsave Inc., Restaura, Inc.,
Transportation Leasing Co., Greyhound Lines of Canada Ltd.,
Brewster Transport Company Limited, Travelers Express Company, Inc.,
Armour International Company (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except where the failure to so qualify
will not have a material adverse effect on the Company and its
subsidiaries, considered as a whole.
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(d) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock
of the Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and any other security interests, claims, liens
or encumbrances.
(e) The Company's authorized equity capitalization is as set
forth in the Prospectus; and the Notes conform to the description
thereof contained in the Prospectus (subject to the insertion in
the Notes of the maturity dates, the interest rates and other
similar terms thereof which will be described in supplements to the
Prospectus as contemplated by the fourth sentence of Section 1(a)
of this Agreement).
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
or general equitable principles and public policy limitations).
The Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect or general equitable principles); and
the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture.
(g) There is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document
of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which is
not described or filed as required.
(h) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein except such
as have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
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sale of the Notes as contemplated by this Agreement and such other
approvals (specified in such opinion) as have been obtained.
(i) Neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of
the transactions herein contemplated, nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or
by-laws of the Company or the terms of any indenture or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or bound or any judgment, order,
regulation or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries.
(j) Deloitte & Touche, who are reporting upon the audited
consolidated financial statements and schedules included in the
Registration Statement, are independent public accountants as
required by the Act and the regulations thereunder.
(k) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to
the Securities contained in the Registration Statement at the
Effective Date. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time. "Rule
415" and "Rule 424" refer to such rules under the Act. Any
reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, which were
filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus,
the Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the
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Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(l) The Company has complied and will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business in Cuba.
2. Appointment of Agents; Solicitation by the Agents of
____________________________________________________
Offers to Purchase; Sales of Notes to a Purchaser.
__________________________________________________
(a) Subject to the terms and conditions set forth herein and subject to the
reservation by the Company of the right to sell Notes directly on its own
behalf at any time and to any investor or through other agents (provided that
any other agent will execute an agreement with the Company upon the same
terms and conditions as contained herein and that the Company will
notify each party hereto of its agreement with any other agents), the
Company hereby authorizes each of the Agents to act as its agent to
solicit offers for the purchase of all or part of the Notes from the
Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable efforts
to solicit offers to purchase the Notes from the Company upon the terms
and conditions set forth in the Prospectus (and any supplement thereto)
and in the Procedures. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted
by the Company, but such Agent shall not, except as otherwise provided
in this Agreement, be obligated to disclose the identity of any
purchaser or have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in
Section 2(b), under no circumstances will any Agent be obligated to
purchase any Notes for its own account. It is understood and agreed,
however, that any Agent may purchase Notes as principal pursuant to
Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon
receipt of instructions from the Company, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Company until
such time as the Company has advised them that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date, with respect to each sale of Notes by the Company as a
result of a solicitation made by such Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
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Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an
Agent, as agent for the Company, at such time and in such amounts as
such Agent deems advisable. The Company may from time to time offer
Notes for sale otherwise than through an Agent; provided, however, that
so long as this Agreement is in effect the Company shall not solicit or
accept offers to purchase Notes through any agent other than an Agent.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall
indemnify and hold each of you harmless against any loss, claim or
damage arising from or as result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall
sell Notes directly to any of you as principal, each such sale of Notes
shall be made in accordance with the terms of this Agreement and a
supplemental agreement relating to such sale. Each such supplemental
agreement (which may be either an oral or written agreement) is herein
referred to as a "Terms Agreement". Each Terms Agreement shall
describe the Notes to be purchased by the Purchaser pursuant thereto
and shall specify the aggregate principal amount of such Notes, the
price to be paid to the Company for such Notes, the maturity date of
such Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record date
with respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery
of opinions of counsel, certificates from the Company or its officers
or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify
the period of time referred to in Section 4(m). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall
be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii)
may be
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resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and Pricing Supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
3. Offering and Sale of Notes.
___________________________
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. Agreements.
___________
The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company
will not file any amendment to the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current
reports filed under the Exchange Act, (ii) a supplement relating
to any offering of Notes providing solely for the specification of
or a change in the maturity dates, interest rates, issuance prices
or other similar terms of any Notes or (iii) a supplement relating
to an offering of Securities other than the Notes) unless the
Company has furnished each of you a copy for your review prior to
filing and given each of you a reasonable opportunity to comment
on any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to you of such
filing. The Company will promptly advise each of you (i) when the
Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of any offering of Notes, any amendment of the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its reasonable efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to
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state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend
solicitation of offers to purchase Notes (and, if so notified by
the Company, each of you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare
and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such compliance
and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment
or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraph (g) of this Section
4 in connection with the preparation or filing of such amendment
or supplement are satisfactory in all respects to you, you will,
upon the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus
relating to the Notes is required to be delivered under the Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and will furnish to each of you copies of such
documents. In addition, on or prior to the date on which the
Company makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be
contained in such announcement. The Company also will furnish to
each of you copies of all press releases or announcements
furnished to news or wire services and any other material press
releases and announcements. The Company will immediately notify
each of you of (i) any decrease in the rating of the Notes or
any other debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or (ii) any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, as soon as the Company learns of any such
decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
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(e) The Company will furnish to each of you and your
counsel, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you
may designate, will maintain such qualifications in effect so long
as required for the distribution of the Notes, and will arrange
for the determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company
and opinions of counsel for the Company relating to the business,
operations and affairs of the Company, the Registration Statement,
the Prospectus, and any amendments thereof or supplements thereto,
the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time
to time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes
is consummated, (i) pay all expenses incident to the performance
of its obligations under this Agreement and any Terms Agreement,
including the fees and disbursements of its accountants and
counsel, the cost of printing or other production and delivery of
the Registration Statement, the Prospectus, all amendments thereof
and supplements thereto, the Indenture, this Agreement, any Terms
Agreement and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including fees of counsel, incurred in
compliance with Section 4(f), the fees and disbursements of the
Trustee and the fees of any agency that rates the Notes, (ii)
reimburse each of you as requested for all out-of-pocket expenses
(including without limitation advertising expenses), if any,
incurred with the approval of the Company by you in connection
with this Agreement and (iii) pay the fees and expenses of your
counsel, Shearman & Sterling, incurred in connection with this
Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at
the time of such acceptance, as though made at and as of such
time, and a covenant that such representations and warranties will
be true and correct at the time of delivery to the purchaser of
the Notes relating to such acceptance, as though made at and as of
such time (it being understood that
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for purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of
such Notes, of any other Notes to be issued on or prior to such
settlement date and of any other Securities to be issued and sold by
the Company on or prior to such settlement date, the aggregate amount
of Securities (including any Notes) which have been issued and sold by
the Company will not exceed the amount of Securities registered pursuant
to the Registration Statement. The Company will inform you promptly
upon your request of the aggregate amount of Securities registered under
the Registration Statement which remain unsold.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement relating to any offering of Securities other than
the Notes or providing solely for the specification of or a change
in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto), the
Company will deliver or cause to be delivered promptly to each of
you a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or accounting
officer of the Company, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in
form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 5(d) but modified to relate to
the last day of the fiscal quarter for which financial statements
of the Company were last filed with the Commission and to the
Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or
the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement (i) relating to any offering of Securities other
than the Notes, (ii) providing solely for the specification of or
a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial
statements or other information as of and for a fiscal quarter,
unless, in the case of clause (iii) above, in the reasonable
judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should
be furnished), the Company shall furnish or cause to be furnished
promptly to each of you a written opinion of counsel of the
Company satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor
as the opinion referred to in Section 5(b) but
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modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
counsel last furnishing such an opinion to you may furnish each of you
with a letter to the effect that you may rely on such last opinion
to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, the Company shall
cause its independent public accountants promptly to furnish each
of you a letter, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter
referred to in Section 5(e) with such changes as may be necessary
to reflect the amended and supplemental financial information
included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the
date of such letter; provided, however, that, if the Registration
Statement or the Prospectus is amended or supplemented solely to
include or incorporate by reference financial information as of and
for a fiscal quarter, the Company's independent public accountants may
limit the scope of such letter, which shall be satisfactory in
form to each of you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and any other information of
an accounting, financial or statistical nature included in such
amendment or supplement, unless, in the reasonable judgment of any
of you, such letter should cover other information or changes in
specified financial statement line items.
(m) During the period, if any, specified (whether orally or
in writing) in any Terms Agreement, the Company shall not, without
the prior consent of the Purchaser thereunder, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Notes being sold
pursuant to such Terms Agreement).
5. Conditions to the Obligations of the Agents.
____________________________________________
The obligations of each Agent to solicit offers to purchase the Notes shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the
statements of the
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Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to each Agent the
opinion of L. Gene Lemon, Vice President and General Counsel for
the Company, dated the Execution Time, to the effect that:
(i) each of the Company and the Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties
or conducts material business, except where the failure to so
qualify will not have a material adverse effect on the
Company and its subsidiaries, considered as a whole;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares
of capital stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
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(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect or general equitable principles); and the Notes
have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement at the Effective Date or at the Execution Time
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus includes any untrue statement of a material fact
or omits to state a material fact necessary to
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make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect or general
equitable principles and public policy limitations);
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the sale of the Notes as
contemplated by this Agreement and such other approvals (specified in
such opinion) as have been obtained;
(ix) neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order, regulation or
decree known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to
the registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than
the State of Delaware or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Agent and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto
at the date such opinion is rendered.
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(c) Each Agent shall have received from Shearman & Sterling,
counsel for the Agents, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together
with any supplement thereto) and other related matters as the
Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the Execution Time, to the effect that the
signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(e) At the Execution Time, Deloitte & Touche shall have
furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the
Execution Time, in form and substance satisfactory to the Agents,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act, and the respective
applicable published rules and regulations thereunder, and stating
in effect that:
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(i) in their opinion the audited financial statements,
financial statement schedules and pro forma financial
statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but
not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive, audit,
compensation and nominating committee of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Prospectus do not comply in form in all material
respects with applicable accounting requirements and
with the published rules and regulations of the
Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement
and the Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than
any capsule information), audited or unaudited, included
or incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified date
not more than five business days prior to the date of
the letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company or
working capital of the Company and its subsidiaries as
compared with the amounts shown
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on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Prospectus,
or for the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Prospectus to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year in net revenues or income before
income taxes or in total or per share amounts of net income of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and the Prospectus and in Exhibit 12
to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and
the Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain
specified procedures, inquiries of certain officials of the
Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application
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of the pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided
in this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to such Agents
and counsel for the Agents, this Agreement and all obligations of any
Agent hereunder may be canceled at any time by the Agents. Notice of
such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5
shall be delivered at the office of Shearman & Sterling, 599 Lexington
Avenue, New York, New York, on the date hereof.
6. Conditions to the Obligations of a Purchaser.
_____________________________________________
The obligations of a Purchaser to purchase any Notes will be subject to
the accuracy of the representations and warranties on the part of the
Company herein as of the date of the related Terms Agreement and as of
the Closing Date for such Notes, to the performance and observance by
the Company of all covenants and agreements herein contained on its
part to be performed and observed and to the following additional
conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as
of the Closing Date, to the effect set forth in Section 5(d)
(except that references to the Prospectus shall be to the
Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinion of L. Gene
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Lemon, General Counsel for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion of
Shearman & Sterling, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(c), and (iv) the letter of
Deloitte & Touche, independent accountants for the Company, dated as
of the Closing Date, to the effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates
and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided
in this Agreement and the applicable Terms Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this
Agreement or such Terms Agreement and required to be delivered to the
Purchaser pursuant to the terms hereof and thereof shall not be in all
material respects reasonably satisfactory in form and substance to the
Purchaser and its counsel, such Terms Agreement and all obligations of
the Purchaser thereunder and with respect to the Notes subject thereto
may be canceled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
_____________________________________________________________
(a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall
have the right to refuse to purchase such Note if, at the Closing Date
therefor, any condition set forth in Section 5 or 6, as applicable, shall
not be satisfied.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall
have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development
specified in any of Sections 9(b)(i) through (v) shall have occurred (with
the judgment of the Agent which presented the offer to purchase such Note
being substituted for any judgment of a Purchaser required therein) the
effect of which is, in the judgment of the Agent which presented the offer
to purchase such Note, so material and adverse as to make it impractical
or inadvisable to proceed with the sale and delivery of such Note (it
being understood that under no circumstance shall any such Agent have any
duty or obligation to the Company or to any such person to exercise the
judgment permitted to be exercised under this Section 7(b) and Section
9(b)).
8. Indemnification and Contribution.
_________________________________
(a) The Company agrees to indemnify and hold harmless each of you,
the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the
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Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you or them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Prospectus or any preliminary
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by any of you specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to you, but only with reference to written
information relating to such of you furnished to the Company by such of
you specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which you may otherwise have. The Company acknowledges that the
names of the Agents set forth on the cover page of the Prospectus
Supplement and the information set forth under the heading "Plan of
Distribution" in the Prospectus Supplement relating to the after-market
activities of the Agents in making a market for, or purchasing in the
secondary market, the Notes, constitute the only information furnished in
writing by any of you for inclusion in the documents referred to in the
foregoing indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will,if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any
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indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each of you agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of you may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and
by each of you from the offering of the Notes from which such Losses
arise; provided, however, that in no case shall any of you be responsible
for any amount in excess of the commissions received by such of you in
connection with the sale of Notes from which such Losses arise (or, in the
case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such of you if such
commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and each of you shall contribute in such proportion as is appropriate to
reflect
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not only such relative benefits but also the relative fault of the
Company and of each of you in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from which such Losses arise, and benefits received
by each of you shall be deemed to be equal to the total commissions
received by such of you in connection with the sale of Notes from which
such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or any of you.
The Company and each of you agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls any of you within the
meaning of the Act or the Exchange Act and each director, officer,
employee and agent of any of you shall have the same rights to
contribution as you and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Termination.
____________
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated either by
the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such
Agent or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other
party hereto, except as provided in the fourth paragraph of Section 2(a),
Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if
prior to such time (i) there shall have occurred, subsequent to the
agreement to purchase such Note, any change, or any development involving
a prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which is, in the judgment of
the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of such Note, (ii)
there shall have been, subsequent to the agreement
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to purchase such Note, any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate
the direction of the possible change, (iii) trading in the Company's
Common Stock shall have been suspended by the Commission or the New York
Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (iv) a banking moratorium shall
have been declared by either Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as
to make it, in the judgment of the Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of such Notes as
contemplated by the Prospectus (exclusive of any supplement thereto).
10. Survival of Certain Provisions.
_______________________________
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of you set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of you or the
Company or any of the directors, officers, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(h)
and 8 hereof shall survive the termination or cancellation of this
Agreement. The provisions of this Agreement (including without
limitation Section 7 hereof) applicable to any purchase of a Note for
which an agreement to purchase exists prior to the termination hereof
shall survive any termination of this Agreement. If at the time of
termination of this Agreement any Purchaser shall own any Notes with
the intention of selling them, the provisions of Section 4 shall remain
in effect until such Notes are sold by the Purchaser.
11. Notices.
________
All communications hereunder will be in writing and effective only on receipt,
and, if sent to any of you, will be mailed, delivered or telegraphed and
confirmed to such of you, at the address specified in Schedule I hereto; or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at Dial Tower, Phoenix, Arizona 85077, attention of the Vice
President-Treasurer.
12. Successors.
___________
This Agreement will inure to the benefit of and be binding upon the parties
hereto, their respective successors, the directors, officers, employees,
agents and controlling persons referred to in Section 8 hereof and, to the
extent provided in Section 7, any person who has agreed to purchase Notes, and
no other person will have any right or obligation hereunder.
13. Applicable Law.
_______________
This Agreement will be governed by and construed with the Laws of the State
of New York.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and you.
Very truly yours,
The Dial Corp
By: ______________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By: _______________________
Name:
Title:
Citibank Securities Markets, Inc.
By: _______________________
Name:
Title:
Goldman, Sachs & Co.
By: _______________________
Name:
Title:
Merrill Lynch, Pierce Fenner & Smith
Incorporated
By: _______________________
Name:
Title:
26
SCHEDULE I
Commissions:
____________
The Company agrees to pay each Agent a commission equal to
the following percentage of the principal amount of each Note sold on
an agency basis by such Agent:
Term Commission Rate
____ _______________
To be determined by the parties hereto
Unless otherwise specified in the applicable Terms Agreement, the
discount or commission payable to a Purchaser shall be determined on
the basis of the commission schedule set forth above.
Address for Notice to you:
__________________________
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, New York 10048, Attention of the
Medium-Term Note Department.
Notices to Citibank Securities Markets, Inc. shall be
directed to it at 55 Water Street, New York, New York 10041, Attention
of the Transaction Execution Department.
Notices to Goldman, Sachs & Co. shall be directed to it at 85
Broad Street, New York, New York 10004, Attention of the Medium-Term
Note Department.
Notices to Merrill Lynch, Pierce, Fenner & Smith Incorporated
shall be directed to it at North Tower, World Financial Center, New
York, New York 10281, Attention of the Medium-Term Note Department.
27
EXHIBIT A
THE DIAL CORP
Medium-Term Note Administrative Procedures
__________________________________________
___________ , 199_
The Medium-Term Notes, Due More Than Nine Months From Date of
Issue (the "Notes") of The Dial Corp (the "Company") are to be offered
on a continuing basis. Salomon Brothers Inc, Citicorp Securities
Markets, Inc., Goldman Sachs & Co. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as agents (each an "Agent"), have agreed to solicit
purchases of Notes issued in fully registered form. The Agents will not
be obligated to purchase Notes for their own account. The Notes are
being sold pursuant to a Selling Agency Agreement between the Company
and the agents named therein (including the Agents) dated the date
hereof (the "Agency 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 dated as of
April 1, 1993 (the "Indenture"), between the Company and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee").
The Agency Agreement provides that Notes may also be
purchased by an Agent acting solely as principal and not as agent. In
the event of any such purchase, the functions of both the Agent and the
beneficial owner under the administrative procedures set forth below
shall be performed by such Agent acting solely as principal, unless
otherwise agreed to between the Company and such Agent acting as
principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to
the Holder thereof or a Person designated by such Holder (a
"Certificated Note"). An owner of a Book-Entry Note will not be
entitled to receive a certificate representing such Note.
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.
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Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof, as
adjusted in accordance with changes in DTC's operating requirements,
and Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless
otherwise defined herein, terms defined in the Indenture and the Notes
shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero,
are referred to herein as "Fixed Rate Notes". Notes for which interest
is calculated on the basis of a floating interest rate are referred to
herein as "Floating Rate Notes". To the extent the procedures set
forth below conflict with the provisions of the Notes, the Indenture,
DTC's operating requirements or the Agency Agreement, the relevant
provisions of the Notes, the Indenture, DTC's operating requirements
and the Agency 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 and its obligations
as a participant in DTC, including DTC's Same-Day Funds Settlement
system ("SDFS").
Issuance: On any date of settlement (as defined under
_________ "Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without coupons
(a "Global Security") representing up to
$150,000,000 principal amount 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,
Interest Payment Period, redemption, repayment and
extension provisions, if any, Maturity Date, and,
in the case of Fixed Rate Notes, interest rate, or,
in the case of Floating Rate Notes, initial
interest rate, Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or
Spread
29
A-3
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 The Company has arranged with the CUSIP Service Bureau
______________ of Standard & Poor's Corporation (the "CUSIP Service
Numbers: Bureau") for the reservation of a series of CUSIP
________ numbers, which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing
Book-Entry Notes and book-entry medium-term notes issued
by the Company with other series designations. The
Trustee, the Company and DTC have obtained from the CUSIP
Service Bureau a written list of such reserved 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. 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
30
A-4
the name of CEDE & CO., as nominee for DTC, on the
securities register for the Notes maintained under the
Indenture. The beneficial owner of a Book-Entry Note (or
one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with
respect to such Book-Entry Note, the "Participants") to act
as agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided
by such Participants, a credit balance with respect to such
beneficial owner in such Book-Entry Note in the account
of such Participants. The ownership interest of such
beneficial owner (or such participant) in such Book-Entry
Note will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
__________ by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such
Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP
__________ Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to
the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
outstanding Global Securities that represent (A)
Fixed Rate Book-Entry Notes having the same Terms
and for which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having
the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single 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
31
A-5
(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 such new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global Securities
to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers
of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security
will be authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged
Global Securities and an additional Global Security
will be authenticated and issued to represent any
remaining principal amounts 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 thirty years after
the Original Issue 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 $150,000,000. If one or more Book-
Entry Notes having an aggregate principal amount in
excess of $150,000,000 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
$150,000,000 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-
32
A-6
Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: General.
_________ ________
Interest, if any, on each Book-Entry Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, on the Global Security
representing such Book-Entry Note, and will be
calculated and paid in the manner described in such
Book-Entry Note and in the Prospectus (as defined
in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Unless otherwise
specified therein, each payment of interest on a
Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date (provided
that, in the case of Floating Rate Book-Entry Notes
which reset daily or weekly, interest payments will
include accrued interest to but excluding the
Regular Record Date immediately preceding 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.
_____________________
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 a
Business Date).
Interest Payment Dates on Fixed Rate Book-Entry Notes.
______________________________________________________
Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments
on Fixed Rate Book-Entry
33
A-7
Notes will be made semiannually on January 15 and
July 15 of each year and at Maturity; provided,
however, 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; provided further 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.
Interest Payment Dates on Floating Rate Book-Entry Notes.
_________________________________________________________
Interest payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semiannually or annually. Unless otherwise agreed
upon, interest will be payable, in the case of
Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment
Period, on the third Wednesday of March, June,
September and December of each year; with a
semiannual Interest Payment Period on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and with an annual
Interest Payment Period, 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 in the
case of a Floating Rate Book-Entry Note for which
the Base Rate is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
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, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date.
34
A-8
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, the Trustee
will deliver to the Company and DTC a written list
of Regular Record Dates and Interest Payment Dates
that will occur with respect to Book-Entry Notes
during the six-month period beginning on such first
Business Day. Promptly after each Interest
Determination Date for Floating Rate Book-Entry
Notes, the Trustee, as Calculation Agent, will
notify Standard & Poor's Corporation of the
interest rates determined on such Interest
Determination Date.
Calculation of Fixed Rate Book-Entry Notes.
______________ ____________________________
Interest:
________
Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes.
_______________________________
Interest rates on Floating Rate Book-Entry Notes will be
determined as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes, except as otherwise
set forth therein, will be calculated on the basis
of actual days elapsed and a year of 360 days
except that in the case of a Floating Rate Book-
Entry Note for which the Base Rate is Treasury
Rate, interest will be calculated on the basis of
the actual number of days in the year.
Payments of Payment of Interest Only.
___________ _________________________
Principal and
_____________
Interest:
_________ Promptly after each Regular Record Date, the Trustee will
deliver to the Company and DTC a written notice setting
forth, by CUSIP number, the amount of interest to be paid
on each Global Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such
amounts. DTC will confirm the amount payable on
each Global Security on such Interest Payment Date
by reference to the appropriate (daily or weekly)
bond reports published by Standard & Poor's
Corporation. The Company will pay to the Trustee,
as paying agent, the total amount of interest due
on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to
DTC, at
35
A-9
the times and in the manner set forth below under
"Manner of Payment".
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 (on a Maturity or Redemption Date
or otherwise) in the following month. The Trustee,
the Company and DTC will confirm the amounts of
such principal and interest payments with respect
to each such Global Security on or about the fifth
Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will
pay to the Trustee, as paying agent, the principal
amount of such Global Security, together with
interest due at such Maturity. The Trustee will
pay such amount 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 Indenture
and so advise the Company. 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 no later than 9:30 A.M.
(New York City time) on such date. The Company will make
such payment on such Global Securities by
instructing the Trustee to withdraw funds from an
account maintained by the Company at Citibank, N.A.
or by wire transfer to the Trustee. The Company
will confirm any such
36
A-10
instructions in writing to the Trustee. Prior to
10 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 a
Global Security 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 (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.
Procedure upon Company Notice to Trustee Regarding Exercise
______________ ____________________________________________
Company's of Optional Redemption.
_________ _______________________
Exercise of
___________ At least 45 days prior to the date on which it intends to
Optional redeem a Book-Entry Note, the Company will notify the
________ Trustee that it is exercising such option with respect to
Redemption: 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
37
A-11
Note, the Trustee will, at least 30 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
such Trustee an amount of money sufficient to pay
the redemption price, plus interest accrued to such
redemption date, for all the Book-Entry Notes or
portions thereof which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Book-Entry Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to Be Repaid.
___________ _________________________________________________
Principal and
_____________ Upon receipt of notice of exercise of the option
Interest upon for repayment and the Global Securities representing
___________ the Book-Entry Notes so to be repaid as set forth
Exercise of in such Notes, the Trustee shall (unless such notice
________ was received pursuant to the Company's exercise
Optional of an optional reset or an optional extension of
__________ maturity, in each of which cases the relevant
Repayment: procedures set forth above are to be followed) give
__________ notice to the Company not less than 20 days prior
to each Optional Repayment Date of such Optional
Repayment Date and of principal amount of Book-
Entry Notes to be repaid on such Optional Repayment
Date.
Deposit of Repayment Price.
___________________________
On or prior to any Optional Repayment Date, the Company
shall deposit with such Trustee an amount of money
sufficient to pay the optional repayment price, and accrued
interest thereon to such date, of all the Book-
Entry Notes or portions thereof which are to be
repaid on such date. Such Trustee will use such
money to repay such Book-Entry Notes pursuant to
the terms set forth in such Notes.
38
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Procedure for The Company and the Agents will discuss from time
_____________ to time the aggregate principal amount of, the
Rate Setting issuance price of, and the interest rates to be borne
____________ by, Book-Entry Notes that may be sold as a result of
and Posting: 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 Unless otherwise instructed by the Company, each
______________ Agent will advise the Company promptly by telephone of
Rejection of all orders to purchase Book-Entry Notes received by
____________ such Agent, other than those rejected by it in
Orders: whole or in part in the reasonable exercise of its
_______ discretion. Unless otherwise agreed by the Company
and the Agents, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject
any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is
______________ accepted by or on behalf of the Company, the
Pricing Company will prepare a pricing supplement (a "Pricing
_______ Supplement") reflecting the applicable interest rates
Supplement: and other terms of such Book-Entry Note and will
___________ arrange to have ten copies thereof filed with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act and will supply at least
ten copies thereof (and additional copies if requested)
to the Agent which presented the order (the "Presenting
Agent"). The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the purchaser
of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to the Prospectuses prior to
their use. Outdated Pricing Supplements (other
than those retained for files) will be destroyed.
39
A-13
Suspension of The Company reserves the right, in its sole
_____________ discretion, to instruct the Agents to suspend at
Amendment or any time, for any period of time or permanently,
____________ the solicitation of orders to purchase Book-Entry Notes.
Supplement: Upon receipt of such instructions, the Agents will
___________ forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of
the 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 may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly
advise the Agents and furnish the Agents with the
proposed amendment or supplement and with such
certificates and opinions as are required, all to
the extent required by and in accordance with the
terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may
file with the Commission any such supplement to the
Prospectus relating to the Notes. 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).
Procedures for When the Company has determined to change the
______________ interest rates of Book-Entry Notes being offered,
Rate Changes: it will promptly advise the Agents and the Agents
_____________ will forthwith suspend
40
A-14
solicitation of orders. 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 orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
___________ relating to a Book-Entry Note must accompany or
Prospectus: precede the earliest of any written offer of such
___________ Book-Entry Note, confirmation of the purchase of such
Book-Entry Note and 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 the Agents
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is
sent by the Presenting 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, the Presenting 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 order to purchase a Book-Entry Note
____________ solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
___________ funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled
on the fifth Business Day following the date of
sale of such Book-Entry Note pursuant to the
timetable for
41
A-15
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 Settlement procedures with regard to each Book-
__________ Entry Note sold by the Company through any Agent,
Procedures: 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. Maturity Date.
3. In the Base of a Fixed Rate Book-Entry
Note, the interest rate or, in the case
of a Floating Rate Book-Entry Note, the
Base Rate, initial interest rate (if
known at such time), Index Maturity,
Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if
any), Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption, repayment and extension
provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined
as provided in Section 2 of the Agency
Agreement.
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9. Whether such Book-Entry 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 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 by telephone of
such CUSIP number as soon as practicable.
Each such communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and the Presenting
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 and (ii) such Note, and the Global
Security representing such Note, will conform
with the terms of the Indenture for such Note.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal
System providing the following settlement
information to DTC (which shall route such
information to Standard & Poor's Corporation),
the Presenting Agent and, upon request, the
Trustee:
1. The information set forth in Settlement
procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Regular
Record Date
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and amount of interest payable on such
Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. To the extent the Company has not already done
so, the Company will deliver to the Trustee a
Global Security in a form that has been
approved by the Company, the Agents and the
Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as
instructed by DTC, if not already set forth
thereon, and authenticate the Global Security
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the
Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Book-Entry
Note to the Trustee's participant account and
credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and
credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
the Trustee to DTC that (i) the Global
Security representing such Book-Entry Note has
been issued and authenticated and (ii) the
Trustee is holding such Global Security
pursuant to the Medium-Term
44
A-18
Note Certificate Agreement between the Trustee
and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's
participant account and credit such Book-Entry
Note to the participant accounts of the
Participants with respect to such Book-Entry
Note and (ii) to debit the settlement accounts
of such Participants and credit the settlement
account of the Presenting Agent for an amount
equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee will, upon receipt of funds from
the Presenting Agent in accordance with
Settlement Procedure "G", wire transfer to the
account of the Company maintained at Citibank,
N.A., New York, N.Y. 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 For orders of Book-Entry Notes solicited by any
__________ Agent and accepted by the Company for settlement
Procedures on the first Business Day after the sale date,
__________ Settlement Procedures "A" through "K" set forth
Timetable: above shall be completed as soon as
__________
45
A-19
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 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
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
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A-20
Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled
or canceled, 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 If the Trustee fails to enter an SDFS deliver order
__________ with respect to a Book-Entry Note pursuant to Settlement
Settle: Procedure "G", the Trustee may deliver to DTC,
_______ through DTC's Participant Terminal System, as soon
as practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the
withdrawal message, provided that the Trustee's
participant account contains a principal amount of
the Global Security representing such Book-Entry
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will
cancel such Global Security in accordance with the
Indenture and so advise the Company and the
Trustee, and the Trustee will make appropriate
entries in its records. The CUSIP number assigned
to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled 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
Book-Entry Note for two Global Securities, one of
which shall represent such Book-Entry Notes and
shall be canceled immediately after issuance and
the other of which shall represent the other 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
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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 may enter SDFS deliver orders
through DTC's Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures
"H" and "G", 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 Agency Agreement, then the Company will
reimburse the Presenting Agent or the Trustee, as
applicable, on an equitable basis for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. 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.
Trustee Not Nothing herein shall be deemed to require the
___________ Trustee to risk or expend its own funds in
to Risk Funds: connection with any payment to the Company, DTC,
______________ the Agents or the purchaser, it being understood
by all parties that payments made by the Trustee
or the Trustee to the Company, DTC, the Agents or
the purchaser shall be made only to the extent
that funds are provided to the Trustee for such
purpose.
Authenticity of The Company will cause the Trustee to furnish the
_______________ Agents from time to time with the specimen
Signatures: signatures of each of the Trustee's officers,
___________ employees or agents who has been
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A-22
authorized by the Trustee to authenticate Book-
Entry Notes, but no Agent will have any 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 Book-Entry Note.
Payment of Each Agent shall forward to the Company, on a
__________ monthly basis, a statement of the out-of-pocket
Expenses: expenses incurred by such Agent during that month
_________ that are reimbursable to it pursuant to the terms
of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
Advertising The Company will determine with the Agents the
___________ amount of advertising that may be appropriate
Costs: in soliciting offers to purchase the Book-Entry
______ Notes. Advertising expenses will be paid by the
Company.
Periodic Periodically, the Trustee will send to the Company
________ a statement setting forth the principal amount of
Statements from Book-Entry Notes Outstanding as of that date and
_______________ setting forth a brief description of any sales of
the Trustee: Book-Entry Notes which the Company has advised the
____________ Trustee but which have not yet been settled.
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PART II
Administrative Procedures for Certificated Notes
________________________________________________
The Trustee will serve as registrar and transfer agent 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 A Certificated Note may be presented for transfer
_____________ or exchange at the principal corporate trust office
for Exchanges: in the City of New York 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 thirty years
after the settlement date for such Note. A
Floating Rate Certificated Note will mature only on
an Interest Payment Date for such Note.
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A-24
Denominations: The denomination of any Certificated Note
______________ denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated in
any other currency will be specified pursuant to
"Settlement Procedures" below.
Interest: General.
_________ ________
Interest, if any, on each Certificated 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, and 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 specified
therein, each payment of interest on a Certificated
Note will include interest accrued to but excluding
the Interest Payment Date (provided that, in the
case of Certificated Notes which reset daily or
weekly, interest payments will include accrued
interest to but excluding the Regular Record Date
immediately preceding 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.
_____________________
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 a Business Day).
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 January 15
and July 15 of each year and at Maturity; provided,
however, 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
51
A-25
Date; provided further that, in the case of a Fixed
Rate Certificated 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.
Floating Rate Certificated Notes.
_________________________________
Interest payments will be made on Floating Rate
Certificated Notes monthly, quarterly, semiannually
or annually. Interest will be payable, in the case
of Floating Rate Certificated Notes with a monthly
interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and
December of each year; with a semiannual Interest
Payment Period, on the third Wednesday of the two
months specified pursuant to Settlement Procedure
"A" below; and with an annual Interest Payment
Period, 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 in the case
of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
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, the first interest payment will be
made on the Interest Payment Date following the
next succeeding Regular Record Date.
Calculation of Fixed Rate Certificated Note.
______________ _____________________________
Interest:
_________ 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.
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A-26
Floating Rate Certificated Notes.
_________________________________
Interest rate on Floating Rate Certificated Notes will
be determined as set forth in the form of Notes.
Interest on Floating Rate Certificated Notes,
except as otherwise set forth therein, will be
calculated on the basis of actual days elapsed and
a year of 360 days, except that in the case of a
Floating Rate Certificated Note for which the Base
Rate is Treasury Rate, interest will be calculated
on the basis of the actual number of days in the
year.
Payments of Interest, if any, on each Certificated Note will be
___________ calculated and paid in the manner described in such
Principal and Note and in the Prospectus, as supplemented by the
_____________ applicable Pricing Supplement. Unless otherwise
Interest: provided in the Indenture or the Certificated Note,
_________ the first payment of interest on any Certificated
Note originally issued between a Record Date and an
Interest Payment Date will be made on the next
succeeding Interest Payment Date. Interest payable
at the Maturity of a Certificated Note will be
payable to the Person to whom the principal of such
Note is payable. Unless other arrangements are
made, all interest payments (excluding interest
payments made on the Maturity Date) will be made by
check mailed to the person entitled thereto as
provided above; provided, however, that the holder
of $10,000,000 (or the equivalent thereof in other
currencies) or more of Certificated Notes with
similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars.
Within 10 days following each 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.
53
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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 Notice to Trustee Regarding Exercise of
_______________ _______________________________________________
Company's Optional Redemption.
_________ ____________________
Exercise of
___________ At least 45 days prior to the date on which it intends
to redeem a Certificated Note, the Company will notify the
Optional Trustee that it is exercising such option with respect to
________ such Certificated Note on such date.
Redemption:
___________ 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 before the redemption date for such
Certificated Note, mail a notice, first class,
postage prepaid, to the Holder of such Certificated
Note informing such Holder of the Company's
exercise of such option with respect to such
Certificated Note.
Deposit of Redemption Price.
____________________________
On or before any redemption date, the Company shall deposit
with such Trustee an amount of money sufficient to pay
the redemption price, plus interest accrued to such
redemption date, for all the Certificated Notes or
portions thereof and which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Certificated Notes pursuant to the
terms set forth in such Notes.
Payments of Trustee Notice to Company of Option to be Repaid.
___________ _________________________________________________
Principal and
_____________ Upon receipt of notice of exercise of the option for
Interest Upon repayment and the Global Securities representing
_____________ the Certificated Notes so to be repaid as set forth
Exercise of in such Notes, the Trustee shall (unless such
_____________ notice was received pursuant to the Company's
Optional Repayment:
___________________
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exercise of an optional reset or an optional
extension of maturity, in each of which cases the
relevant procedures set forth above are to be
followed) give notice to the Company not less than
20 days prior to each Optional Repayment Date of
such Optional Repayment Date and of the principal
amount of Certificated Notes to be repaid on such
Optional Repayment Date.
Deposit of Repayment Price.
___________________________
On or prior to any Optional Repayment Date, the Company
shall deposit with such Trustee an amount of money
sufficient to pay the optional repayment price, and accrued
interest thereon to such date, of all the
Certificated Notes or portions thereof which are to
be repaid on such date. Such Trustee will use such
money to repay such Certificated Notes pursuant to
the terms set forth in such Notes.
Procedure for The Company and the Agents will discuss from time
_____________ to time the aggregate principal amount of the
Rate Setting issuance price of, and the interest rates to be
____________ borne by, Notes that may be sold as a result of the
and Posting: solicitation of orders by the Agents. If the
____________ Company decides to set prices of, and rates borne
by, any 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 Unless otherwise instructed by the Company, each
______________ Agent will advise the Company promptly by telephone
Rejection of of all orders to purchase Certificated Notes
____________ received by such Agent, other than those rejected
Orders: by it in whole or in part in the reasonable
_______ exercise of its discretion. Unless otherwise
agreed by the Company and the Agents, the Company
has the sole right to accept orders to purchase
Certificated Notes and may reject any such orders
in whole or in part. Before accepting any order to
purchase a Certificated Note to be
55
A-29
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 If any order to purchase a Certificated Note is
___________ accepted by or on behalf of the Company, the Company
of Pricing will prepare a pricing supplement (a "Pricing Supplement")
__________ reflecting the interest rates and other terms of
Supplement: such Certificated Note and will arrange to have ten
___________ copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply at least ten
copies thereof (and additional copies if requested)
to the Agent which presented the order (the
"Presenting Agent"). The Presenting Agent will
cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Certificated
Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than
those retained for files) will be destroyed.
Suspension of The Company reserves the right, in its sole
_____________ discretion, to instruct the Agents to suspend
Solicitation; at any time for any period of time or permanently,
____________ the solicitation of orders to purchase Certificated
Amendment or Notes. Upon receipt of such instructions, the Agents
____________ will forthwith suspend solicitation until such time
Supplement: as the Company has advised them that such solicitation
___________ may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents and the Trustee whether
such orders may be settled and whether copies of
the 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
56
A-30
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 may not
be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents
with the proposed amendment or supplement and with
such certificates and opinions as are required, all
to the extent required by and in accordance with
the terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may
file with the Commission any supplement to the
Prospectus relating to the Notes. 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).
Procedure for When the Company has determined to change the
_____________ interest rates of Certificated Notes being offered,
Rate Changes: it will promptly advise the Agents and the Agents
_____________ will forthwith suspend solicitation of orders. 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 orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
___________ relating to a Certificated Note must accompany or
Prospectus: precede the earliest of any written offer of such
___________ Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agents between the time an order
for a Certificated Note is placed and the time
written confirmation thereof is sent by
57
A-31
the Presenting 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, the Presenting Agent will
deliver a Prospectus and Pricing Supplement as
herein described with respect to each Certificated
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 order 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 the
Presenting Agent's delivery of such Certificated
Note against receipt of immediately available funds
shall, with respect to such Certificated Note,
constitute "settlement". All orders accepted by the
Company will be settled on the fifth Business Day
following the date of sale 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 Settlement Procedures with regard to each
__________ Certificated Note sold by the Company through any
Prosedures: 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:
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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. Maturity Date.
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), Base
Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any) and Maximum Interest Rate (if any).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether the option to
elect payment in a Specified Currency
applies and if the Specified Currency is not
U.S. dollars, the authorized denominations.
9. Redemption, repayment or extension
provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission, determined as
provided in Section 2 of the Agency
Agreement.
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13. 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.
C. The Company will deliver to the Trustee a pre-
printed four-ply packet for such Certificated
Note, which packet will contain the following
documents in forms that have been approved by
the Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Certificated Note
and will 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
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immediately available funds equal to the amount
of such payment made.
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to the
customer against payment in immediately payable
funds. The Presenting Agent will obtain the
acknowledgment of receipt of such Certificated
Note by retaining Stub Two.
F. The Trustee will send Stub Three to the Company
by first-class mail.
Settlement For orders of Certificated Notes solicited by any
__________ Agent, as agent, and accepted by the Company,
Procedures Settlement Procedures "A" through "F" set forth
__________ above shall be completed on or before the respective
Timetable: times (New York City time) set forth below:
__________
Settlement
Procedure Time
_________ ____
A 2:00 P.M. on the day
before settlement
B-C 3:00 P.M. on the day
before settlement
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 If a purchaser fails to accept delivery of and make
__________ payment for any Certificated Note, the Presenting
Settle: Agent will notify the Company and the Trustee by
_______ telephone and return such
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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 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 Agency Agreement, then the Company will reimburse
the Presenting Agent or the Trustee, as appropriate,
on an equitable basis for its loss of the use of the
funds during the period when they were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such
failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture
and so advise the Company and the Trustee, and the
Trustee will make appropriate entries in its
records.
Trustee Not Nothing herein shall be deemed to require the
___________ Trustee to risk or expend its own funds in connection
to Risk Funds: with any payment to the Company, the Agents or the
______________ purchaser, it being understood by all parties that
payments made by the Trustee to the Company, the Agents
or the purchaser shall be made only to the extent that
funds are provided to the Trustee for such purpose.
Authenticity of The Company will cause the Trustee to furnish
_______________ the Agents from time to time with the specimen
Signatures: signatures of each of the Trustee's officers, employees
___________ or agents who has been authorized by the Trustee to
authenticate Certificated Notes, but no Agent will have
any 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 Certificated Note.
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Payment of Each Agent shall forward to the Company, on a
__________ monthly basis, a statement of the out-of-pocket expenses
Expenses: incurred by such Agent during that month that are
_________ reimbursable to it pursuant to the terms of the Agency
Agreement.
The Company will remit payment to the Agents currently
on a monthly basis.
Advertising The Company will determine with the Agents the
___________ amount of advertising that may be appropriate in
Costs: soliciting orders to purchase the Certificated
______ Notes. Advertising expenses will be paid by the
Company.
Periodic Periodically, the Trustee will send to the Company a
________ statement setting forth the principal amount
Statement from of Certificated Notes Outstanding as of that date
______________ and setting forth a brief description of any sales
the Trustee: of Certificated Notes which the Company has advised
____________ the Trustee but which have not yet been settled.
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EXHIBIT B
The Dial Corp
Medium Term Notes
Due More Than Nine Months
from Date of Issue
TERMS AGREEMENT
______________ 199_
Attention:
Subject in all respects to the terms and conditions of the Selling
Agency Agreement (the "Agreement") dated _________, 199_ between
Salomon Brothers Inc, ___________ and you, the undersigned agrees to
purchase the following Notes of The Dial Corp:
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
_____, 199_]
Purchase Date and Time:
64
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any,
in the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By:_________________________
Accepted:
The Dial Corp
By:_______________________
Title: