EXHIBIT 1.1
OCCIDENTAL PETROLEUM CORPORATION
Medium-Term Senior Notes, Series D
Medium-Term Subordinated Notes, Series A
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
April 21, 2005
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Citigroup Global Markets Inc.
390 Greenwich Street, 4th Floor
New York, NY 10013
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of Banc of America Securities LLC, Citigroup
Global Markets Inc., Credit Suisse First Boston LLC, J.P. Morgan Securities Inc.
and Morgan Stanley & Co. Incorporated (each an "Agent" and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Senior Notes, Series D (the "Senior Notes") and its Medium-Term Subordinated
Notes, Series A (the "Subordinated Notes" and, together with the Senior Notes,
the "Notes"). The Senior Notes are to be issued pursuant to an indenture (the
"Senior Indenture," which term, for the purpose of this Agreement, shall include
the Officers' Certificate delivered from time to time pursuant to Sections 201
and 301 of the Senior Indenture, dated as of April 1, 1998, between the Company
and The Bank of New York, as trustee (the "Trustee"), as amended by supplemental
indenture from time to time, including, without limitation, the Second
Supplemental Indenture to Senior Indenture and Subordinated Indenture, dated as
of April 21, 2005, between the Company and the Trustee (the "Second Supplemental
Indenture"). The Subordinated Notes are to be issued pursuant to an indenture
(the "Subordinated Indenture," which term, for the purpose of this Agreement,
shall include the Officers' Certificate delivered from time to time pursuant to
Sections 201 and 301 of the Subordinated Indenture, including, without
limitation, the Officers' Certificate dated June 30, 1999), dated as of January
20, 1999, between the Company and the Trustee, as amended by supplemental
indenture from time to time, including, without limitation, the First
Supplemental Indenture to Senior Indenture and Subordinated Indenture, dated as
of March 6, 2002, between the Company and the Trustee, and the Second
Supplemental Indenture. The Senior Indenture and the Subordinated Indenture are
herein referred to collectively as the "Indentures." As of the date hereof, the
Company has authorized the issuance of up to U.S. $1,500,000,000 aggregate
initial offering price (or its equivalent, based upon the applicable exchange
rate at the time of issuance, in such foreign currencies or currency units as
the Company shall designate at the time of issuance) of Notes to be distributed
through or sold to the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that, at the option of the Company, such Notes
may be distributed through or sold to the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company to
purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchasers, and (as may from time to time be agreed to by the
Company and one or more Agents) to such Agent or Agents as principal for resale
to purchasers. In addition, notwithstanding anything herein to the contrary, the
Company may, without the consent of the Agents, solicit or accept offers to
purchase Notes from any person for their account ("direct placements"). It is
understood that the Agents are not acting as agents of the Company in direct
placements.
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly on its own behalf
and to any person, and to designate and select additional agents to become
parties to this Agreement, which agency may be on an on-going basis or, upon
notice to the Agents, a one-time basis, the Company hereby (i) appoints each
Agent as an agent of the Company for the purpose of soliciting offers to
purchase the Notes from the Company by others and (ii) agrees that whenever the
Company determines to sell Notes directly to an Agent as principal for resale to
others, it will enter into a Terms Agreement relating to such sale in accordance
with the provisions of Section 2(b) hereof. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes from the Company has been solicited by such Agent, as
agent, and accepted by the Company, but such Agent shall not have any liability
to the Company in the event any such purchase is not consummated for any reason.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-123324), for the
registration of, among other securities, senior debt securities and subordinated
debt securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement, as
amended, has been declared effective by the Commission and each of the
Indentures has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (as
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amended, and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and which the Company
and the Agents agree are to be covered by this Agreement) and the prospectus
constituting a part thereof, together with any prospectus supplement relating to
the Notes, including, in each case, all Incorporated Documents (as hereinafter
defined), as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that, if any revised
prospectus or prospectus supplement shall be provided to the Agents by the
Company for use in connection with the offering of the Notes that is not
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Agents for such use. If the Company files a related registration
statement with the Commission pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall include the Rule 462(b)
Registration Statement. Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents, financial statements and schedules incorporated, or deemed to be
incorporated, by reference therein (other than information in such documents,
financial statements and schedules that is deemed not to be filed) pursuant to
Item 12 of Form S-3 under the 1933 Act, and any reference to any amendment or
supplement to the Registration Statement or the Prospectus shall be deemed to
refer to and include any documents, financial statements and schedules filed by
the Company with the Commission under the 1934 Act and so incorporated, or
deemed to be incorporated, by reference (other than information in such
documents, financial statements and schedules that is deemed not to be filed)
(such incorporated documents, financial statements and schedules being herein
called the "Incorporated Documents"). Notwithstanding the foregoing, for
purposes of this Agreement any prospectus supplement prepared or filed with
respect to an offering pursuant to the Registration Statement of a series of
securities other than the Notes shall not be deemed to have supplemented the
Prospectus. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
Notwithstanding anything herein to the contrary, the Company and each of
the Agents agree that the Agents shall have no obligations under this Agreement
with respect to the Subordinated Notes unless and until the Company shall have
delivered to each of the Agents written evidence of the ratings of the
Subordinated Notes from each of Moody's Investors Service, Inc., and Standard &
Poor's Corporation, or their respective successors, or other evidence of such
ratings which is reasonably satisfactory to the Agents.
SECTION 1. Representations and Warranties; Additional Certifications.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through an Agent as agent or from an Agent as
principal), as of the date of each delivery of Notes by the Company to the
purchasers (whether through an Agent as agent or to an Agent as principal) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a
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"Settlement Date"), and as of the dates referred to in Section 6(a) hereof (each
of the dates referenced above being referred to hereafter as a "Representation
Date"), as follows:
(i) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and any Incorporated Documents filed subsequent to the date
hereof and prior to the termination of the offering of the Notes, will,
when they are filed with the Commission, comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations; no such
Incorporated Document, when it was filed or became effective (or, if an
amendment with respect to any such Incorporated Document was filed or
became effective, when such amendment was filed or became effective) with
the Commission, contained, and no Incorporated Document filed subsequent to
the date hereof and prior to the termination of the offering of the Notes
will contain, an untrue statement of a material fact or omitted, or will
omit, to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were or will be made, not misleading.
(ii) Each preliminary prospectus, if any, relating to the Notes
filed as part of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so filed, and the Registration Statement, at the time it
became effective, complied in all material respects with the provisions of
the 1933 Act and the 1933 Act Regulations; at the applicable Representation
Date, the Registration Statement and the Prospectus, and any supplement or
amendment thereto relating to the Notes, comply and will comply in all
material respects with the provisions of the 1933 Act and the 1933 Act
Regulations; and (a) the Registration Statement and any such supplement or
amendment thereto relating to the Notes, at all such times did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (b) the Prospectus, and any such
supplement or amendment thereto relating to the Notes, at all such times
did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were or will be made, not misleading; except that this representation and
warranty does not apply to statements or omissions in the Registration
Statement, the Prospectus or any preliminary prospectus, or any amendment
or supplement thereto, made in reliance upon information furnished to the
Company in writing by or on behalf of the Agents expressly for use therein
or to those parts of the Registration Statement that constitute the
Trustee's Statements of Eligibility on Form T-1 under the 1939 Act (the
"Forms T-1"). There is no contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that is not described or filed
as required. In the event that the Registration Statement (including any
prospectus filed as part of the Registration Statement), any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing was or is filed electronically pursuant to EDGAR,
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then the Registration Statement (including any prospectus filed as part
thereof), such preliminary prospectus, the Prospectus and any such
amendment or supplement delivered to the Agents for use in connection with
the offering of the Notes was or will be, as the case may be, identical (as
to content) to the electronically transmitted copy thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(iii) This Agreement, the Indentures, the Notes and any applicable
Terms Agreement have been duly authorized by the Company and conform in all
material respects to the descriptions thereof in the Prospectus.
(iv) The Indentures have been duly qualified under the 1939 Act and
(assuming the due execution and delivery thereof by the Trustee) are, and
the Notes (when executed by the Company and authenticated in accordance
with the appropriate Indenture and delivered to and paid for by the
purchasers thereof) will be, the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except (x) as such enforceability may be subject to or limited by
(A) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally, (B) the applicability or effect of any
fraudulent transfer, preference or similar law, (C) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), (D) requirements that a claim with respect
to any Notes denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such claim)
be converted into United States dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law, (E) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or in a foreign currency or currency units or (F) the effect of general
rules of contract law that limit the enforceability of provisions requiring
indemnification of a party for liability for its own action or inaction to
the extent the action or inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct and (y) that the waiver contained in
Section 515 of each of the Indentures may be deemed unenforceable. The
Notes (when executed by the Company and authenticated in accordance with
the terms of the appropriate Indenture and delivered to and paid for by the
purchasers thereof) will be entitled to the benefits of the appropriate
Indenture (subject to the exceptions set forth in the preceding sentence).
(v) The Company and each of Occidental Chemical Holding
Corporation, a California corporation, and Occidental Oil and Gas Holding
Corporation, a California corporation formerly known as Occidental Oil and
Gas Corporation, until such time as the fact that any such entity is no
longer majority owned by the Company shall have been disclosed in the
Registration Statement and the Prospectus (each a "Principal Domestic
Subsidiary" and collectively the "Principal Domestic Subsidiaries") is a
validly existing corporation in good standing under the laws of its state
of incorporation. The Company and each Principal Domestic Subsidiary has
full corporate power and authority to own its respective properties and
carry on its respective business as presently conducted, as described in
the Prospectus, and is duly registered or qualified to conduct business,
and is in good standing, in each jurisdiction in which it owns or leases
property or transacts
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business and in which such registration or qualification is necessary,
except as to jurisdictions where the failure to do so would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. All of the outstanding capital stock or other securities evidencing
equity ownership of each Principal Domestic Subsidiary has been duly and
validly authorized and issued and is fully paid and non-assessable, and,
except as otherwise disclosed in the Registration Statement and the
Prospectus, is owned by the Company, directly or indirectly through
subsidiaries, free and clear of any security interest, claim, lien or
encumbrance. Except as otherwise disclosed in the Registration Statement
and the Prospectus, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in any such Principal Domestic
Subsidiary, except for rights, warrants or options held by the Company.
(vi) Except as contemplated in the Prospectus or reflected therein
by the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless the Company has notified the Agents as
provided in Section 3(d) hereof, there has not been any material adverse
change, or any development which is reasonably likely to result in a
material adverse change, in the consolidated financial condition or
consolidated results of operations of the Company and its subsidiaries,
taken as a whole.
(vii) The Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended. The execution and
delivery of this Agreement by the Company, the issuance and sale of the
Notes and the performance by the Company of its obligations under this
Agreement, the Indentures and any applicable Terms Agreement will not
conflict with or constitute a breach of or a default (with the passage of
time or otherwise) under (A) the Restated Certificate of Incorporation or
Bylaws of the Company, in each case, as amended, (B) subject to the
Company's compliance with any applicable covenants pertaining to its
incurrence of unsecured indebtedness contained therein, any agreement or
instrument (which is, individually or in the aggregate, material to the
Company and its subsidiaries, taken as a whole) to which the Company or any
Principal Domestic Subsidiary is a party or by which it is bound or any of
them is bound or to which any of the property or assets of the Company or
any Principal Domestic Subsidiary is subject or (C) any order of any court
or governmental agency or authority presently in effect and applicable to
the Company or any Principal Domestic Subsidiary. Except for orders,
permits and similar authorizations required under the securities or Blue
Sky laws of certain jurisdictions, including jurisdictions outside the
United States, or required of any securities exchange on which any of the
Notes might be listed, no consent, approval, authorization or other order
of any regulatory body, administrative agency or other governmental body is
legally required for the valid issuance and sale of the Notes. As of the
date of each acceptance by the Company of an offer for the purchase of
Notes and as of the date of each delivery of Notes by the Company, the
Company by such acceptance or delivery, as the case may be, shall be deemed
to represent and warrant to the Agents that, both immediately before and
immediately after giving effect to such acceptance or delivery, the Company
shall be in compliance with the requirements of any applicable covenants
pertaining to its incurrence
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of unsecured indebtedness contained in the agreements or instruments
referred to in clause (B) above.
(viii) To the best of the Company's knowledge, the accountants who
have audited and reported upon the consolidated financial statements filed
with the Commission as part of the Registration Statement and the
Prospectus are independent accountants as required by the 1933 Act. The
consolidated financial statements included in the Registration Statement
and Prospectus, or incorporated therein by reference, fairly present the
consolidated financial position and results of operations of the entities
to which such statements relate at the respective dates and for the
respective periods to which they apply. Such consolidated financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied, except as set forth in the
Registration Statement and Prospectus.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to an Agent or to counsel for the Agents in connection
with an offering of Notes shall be deemed a representation and warranty by the
Company to such Agent as to the matters covered thereby on the date of such
certificate.
SECTION 2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its best efforts to
solicit offers to purchase the Notes upon the terms and subject to the
conditions set forth herein and in the Prospectus. The Agents are not authorized
to appoint sub-agents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes as agents. In connection with the
solicitation of offers to purchase Notes, the Agents are not authorized to
provide any written information relating to the Company to any prospective
purchaser other than the Prospectus and the Incorporated Documents.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes commencing at any time for any
period of time or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of offers to purchase the Notes
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, which such Agent is
hereby authorized to deduct from the sales proceeds of each Note sold by the
Company as a result of a solicitation made by such Agent, as an agent of the
Company, equal to the applicable percentage of the principal amount of each such
Note, as set forth in Exhibit A hereto, or as otherwise agreed upon between such
Agent and the Company. Without the consent of the Company, no Agent may reallow
any portion of the commission payable pursuant hereto to dealers or purchasers
in connection with the offer and sale of any Notes as agents.
As an agent, each Agent is authorized, except during periods of suspension
as provided in this Agreement, to solicit offers to purchase the Notes. Each
Agent shall communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes received by such Agent,
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as agent. Each Agent shall have the right in its discretion reasonably exercised
to reject any offer to purchase the Notes received by such Agent that it does
not deem reasonable, and any such rejection shall not be deemed a breach of such
Agent's agreements contained herein. The Company shall have the sole right to
accept offers to purchase the Notes and may reject any such offer in whole or in
part, and any such rejection shall not be deemed to be a breach of any agreement
of the Company contained herein. The purchase price, interest rate, or formula,
maturity date and other terms of the Notes agreed upon by the Company shall be
set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of Notes (a "Pricing
Supplement"). All Notes will be issued at 100% of their principal amount, unless
otherwise agreed to by the Company. Each Agent acknowledges and agrees that any
funds which such Agent receives in respect of a purchase of Notes, which
purchase has been solicited by such Agent, as agent of the Company, will be
received, held and disposed of by such Agent, as agent of the Company.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and any reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement if confirmed within 24 hours thereafter by an
exchange of any standard form of written telecommunication (including facsimile
transmission) between the Agent and the Company) is herein referred to as a
"Terms Agreement." Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and the Agent. Each such Terms Agreement,
whether oral (and confirmed in writing, which confirmation may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit B hereto. An Agent's commitment to
purchase Notes pursuant to any Terms Agreement 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.
Unless expressly prohibited by the Company pursuant to the Terms Agreement
relating to a sale of Notes to the Agent, each Agent is authorized to utilize a
selling or dealer group in connection with the resale of the Notes purchased
pursuant to such Terms Agreement. In connection with any brokers or dealers
whose services are engaged by any Agent with respect to the offer or sale of the
Notes, such Agent agrees that it will use its best efforts to cause such brokers
or dealers to comply with the terms and provisions of this Agreement, the
applicable provisions of the 1933 Act and the 1934 Act and the applicable rules
and regulations of the Commission thereunder, the applicable rules and
regulations of the National Association of Securities Dealers, Inc. and the
applicable rules of any securities exchange having jurisdiction over the
offering of the Notes.
(c) Administrative Procedures. Administrative procedures with respect to
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). The Procedures initially agreed upon shall be those
set forth in Exhibit C hereto. The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by the
Agents and the Company herein and in the Procedures.
(d) Foreign Offerings. Each Agent represents and agrees that (i) it has
not solicited, and will not solicit, offers to purchase any of the Notes from,
(ii) it has not sold, and will not sell, any of the Notes to, and (iii) it has
not distributed, and will not distribute, the Prospectus to, any
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person or entity in any jurisdiction outside of the United States (collectively
"Foreign Offers and Sales") except, in each case, in compliance in all material
respects with all applicable laws and, in connection with the initial offering
of, or subscription for, any of the Notes, only with the prior written consent
of the Company and in full compliance with any requirements and procedures
established by the Company with respect to any such Foreign Offers and Sales.
For the purposes of this paragraph, "United States" means the United States of
America, its territories, its possessions (including the Commonwealth of Puerto
Rico) and other areas subject to its jurisdiction.
In particular and without limiting the generality of the foregoing:
(i) Each Agent, severally and not jointly, agrees to distribute, in
connection with any Foreign Offers and Sales, only those Prospectuses used
in connection therewith that have been appropriately "stickered" for use in
the jurisdiction in which such Foreign Offers and Sales are to be made.
(ii) With respect to the United Kingdom, each Agent, severally and
not jointly, represents and agrees that (A) in relation to Notes which have
a maturity of one year or more, it has not offered or sold and, prior to
the expiry of a period of six months from the date of issue of such Notes,
will not offer or sell any such Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (B) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it in
connection with the issue or sale of any Notes in circumstances in which
section 21(1) of the FSMA does not apply to the Company and (C) it has
complied and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Notes in, form or
otherwise involving the United Kingdom.
(iii) With respect to the Provinces of Canada (the "Provinces"), each
Agent, severally and not jointly, represents and agrees that, in connection
with the initial offering of any of the Notes, (A) it will not, directly or
indirectly, offer or sell any of the Notes in any of the Provinces or to,
or for the benefit of, any resident of any of the Provinces after the date
(the "Canadian Ending Date") set by the Company for the end of the offer of
such Notes, and, without the prior written consent of the Company, it will
not distribute or permit to be distributed any Prospectus in any of the
Provinces or to, or for the benefit of, any resident of any of the
Provinces after the Canadian Ending Date, (B) with respect to anything done
by such Agent in relation to the Notes in, from, or otherwise involving,
any of the Provinces, it has complied, and will comply, in all material
respects, with all applicable provisions of the securities legislation of
Canada and the Provinces (the "Canadian Securities Legislation")
(including, without limitation, the conveyance, or the provision of
assistance to the Company in conveying, any right of rescission, damages or
other right as required by applicable Canadian Securities Legislation) so
that any offer or
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sale of any of the Notes in the Provinces, or any of them, will qualify for
exemptions from prospectus, registration and equivalent requirements, or
exemptions from other applicable requirements, as prescribed by the
Canadian Securities Legislation in force at the time when such offer or
sale is made, provided that such offer or sale is made pursuant to the
Prospectus, as supplemented to the extent required by the Canadian
Securities Legislation (the Prospectus, as so supplemented, hereinafter
referred to as the "Canadian Offering Memorandum"), (C) with respect to
Notes offered or sold, or to be offered or sold, by such Agent, or Notes
purchased, or to be purchased, by such Agent, it has provided, and will
provide, investors, where required pursuant to the provisions of applicable
Canadian Securities Legislation, with (1) the Canadian Offering Memorandum,
and (2) a list of the documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent
to the date of the Prospectus dated April 7, 2005, and will obtain from
each of such investors an acknowledgment in form reasonably satisfactory to
the Company, and (D) with respect to any such sale of the Notes made by
such Agent, such Agent will effect all necessary filings in connection with
such sale, including, without limitation, any required filings of (x)
reports of trades and (y) the Canadian Offering Memorandum, in each case
with provincial securities commissions, as required pursuant to the
provisions of applicable Canadian Securities Legislation.
SECTION 3. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents promptly
(i) of the effectiveness of any post-effective amendment to the Registration
Statement (other than a post-effective amendment relating solely to an offering
of securities other than the Notes), (ii) of the transmittal to the Commission
for filing of any supplement to the Prospectus (other than a Pricing Supplement
or a supplement relating solely to an offering of securities other than the
Notes) or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement, the
Rule 462(b) Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or the Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the Rule 462(b)
Registration Statement or the initiation of any proceedings for that purpose and
(vi) of the receipt of notice from one or more of Standard & Poor's Corporation,
Moody's Investors Service, Inc. and Fitch IBCA, Inc. (or any of their respective
successors) that the Notes have been or are going to be placed on what is
commonly termed a "watch list" for possible downgrading. The Company will make
every reasonable effort to prevent the issuance of any such stop order and, if
any such stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
advance notice of its intention to file any additional registration statement
with respect to the registration of additional Notes to be covered by this
Agreement, any amendment to the Registration Statement (including any Rule
462(b) Registration Statement) or any amendment or supplement
10
to the prospectus included in the Registration Statement at the time it became
effective or any amendment or supplement to the Prospectus (other than a Pricing
Supplement or an amendment or supplement relating solely to an offering of
securities other than the Notes), whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with copies
of any such amendment or supplement, and will not file any such amendment or
supplement of which the Agents shall not previously have been advised or to
which the Agents shall reasonably object in writing, unless, in the judgment of
the Company and its counsel, such amendment or supplement is necessary to comply
with law.
(c) Copies of the Registration Statement, the Rule 462(b) Registration
Statement and the Prospectus. The Company will deliver to each of the Agents one
signed and as many conformed copies of the Registration Statement (as originally
filed), the Rule 462(b) Registration Statement, if any, and of each amendment
thereto (including the Incorporated Documents and any exhibits filed therewith
or incorporated by reference therein) as the Agents may reasonably request. The
Company will furnish to the Agents as many copies of the Prospectus (as amended
or supplemented) as the Agents shall reasonably request so long as the Agents
are required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(d) Revisions of Prospectus--Material Changes. So long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes, if any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the Company and
of counsel for the Agents, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading, in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, prompt notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the Agents may then own as
principal. In addition, if any Agent holds Notes purchased for resale pursuant
to a Terms Agreement during the period ending 90 days after the date of
execution of such Terms Agreement, the Company will promptly prepare and file an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Agents.
(e) Earnings Statements. The Company will make generally available to its
security holders, in each case as soon as practicable but in any event not later
than 15 months after the acceptance by the Company of an offer to purchase Notes
hereunder, a consolidated earnings statement (which need not be audited)
covering the twelve-month period beginning after the latest of (i) the effective
date of the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of such acceptance and (iii) the date of the Company's most recent
annual report on Form 10-K filed with the Commission prior to the date of such
acceptance, which earnings statement will satisfy the provisions of Section
11(a) of the 1933 Act (and, at the option of the Company, Rule 158 of the 1933
Act Regulations). Nothing in this Section 3(e) shall require the
11
Company to make such earnings statement available more frequently than once in
any period of twelve months.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions as the Agents may
reasonably designate (provided no registration shall be required in any
jurisdiction outside the United States), and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company will promptly notify the Agents of any
suspension of any such qualifications; and provided, further, that the Company
shall not be obligated to register or qualify as a foreign corporation or take
any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (b), (c) or (d) of this Section 3
or the provisions of subsection (a), (b) or (c) of Section 6 during any period
from the time the Agents shall have been notified to suspend the solicitation of
offers to purchase the Notes in their capacity as agent or resales of Notes
purchased pursuant to a Terms Agreement to the time the Company shall determine
that solicitation of offers to purchase the Notes through any Agent or Agents or
resales as principal of Notes purchased pursuant to a Terms Agreement by any
Agent or Agents should be resumed. Notwithstanding the foregoing, if any Agent
holds Notes purchased for resale pursuant to a Terms Agreement, the Company
shall comply with the provisions of subsections (b), (c) and (d) of this Section
3 and the provisions of subsections (a), (b) and (c) of Section 6 during the
90-day period from and including the date of execution of such Terms Agreement;
provided, however, that the Company shall have the right, in its reasonable
business judgment, to suspend such compliance during such 90-day period
(provided that such suspension may not be effected during the period from and
including the date of execution of such Terms Agreement to and including the
Settlement Date with respect to such Terms Agreement), in which event, such
90-day period shall be extended by the number of days included in any such
period of suspension. However, prior to instructing the Agents to resume the
solicitation of offers to purchase Notes or prior to purchasing Notes from the
Company as principal, the Company shall be required to comply with the
provisions of subsections (a), (b) and (c) of Section 6 by delivering or causing
to be delivered the certificates, opinions and letters that would have otherwise
been required under in connection with the filing of an Incorporated Document
(including any amendments to such documents).
SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement, the
Rule 462(b) Registration Statement and all amendments thereto and the
Prospectus and any amendments or supplements thereto and all Incorporated
Documents;
(ii) The preparation, filing and printing of this Agreement;
12
(iii) The preparation, printing, issuance and delivery of the Notes;
(iv) The fees and disbursements of the Trustee and its counsel, of
any calculation agent or exchange rate agent and of The Depository Trust
Company;
(v) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program contemplated
by this Agreement; provided, however, that in any sale of Notes to one or
more Agents acting as principal, the Company's obligations, if any, to pay
the reasonable fees and disbursements of such counsel shall be as agreed
upon by the Company and the Agent(s) participating in such transaction and
reflected in the applicable Terms Agreement;
(vi) The qualification of the Notes under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel to the Agents in
connection therewith and in connection with the preparation of any Blue Sky
survey and any legal investment survey;
(vii) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement, the Rule 462(b)
Registration Statement and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto relating to the Notes, and the
delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations of offers to purchase, or
confirmations of sales of, the Notes;
(viii) The preparation, printing and delivery to the Agents of copies
of the Indentures;
(ix) Any fees charged by rating agencies for the rating of the
Notes;
(x) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. relating
to the Agents' obligations hereunder or under a Terms Agreement; and
(xi) Any advertising and other out-of-pocket expenses of the Agents
incurred with the prior written approval of the Company.
SECTION 5. Conditions of Obligations.
The obligations of any Agent to solicit offers to purchase the Notes as
agent of the Company and the obligations of any Agent to purchase Notes pursuant
to any Terms Agreement will be subject at all times to the accuracy, as of the
applicable Representation Date, of the representations and warranties on the
part of the Company herein and the accuracy, as of the date made, of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions hereof, 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:
13
(a) Opinion of Counsel for the Company. On the date hereof, the Agents
shall have received an opinion from Robert E. Sawyer, Esq., Associate General
Counsel for the Company, dated as of the date hereof and in form and substance
satisfactory to counsel for the Agents, to the effect that:
(i) The Company has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware. Each Principal
Domestic Subsidiary is validly existing in good standing under the laws of
its state of incorporation.
(ii) The Company has full corporate power and corporate authority to
enter into and perform its obligations under this Agreement and the
Indentures, to borrow money as contemplated in this Agreement and the
Indentures, and to issue, sell and deliver the Notes.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
(iv) Each of the Indentures has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution and
delivery of that Indenture by the Trustee) is a valid and binding agreement
of the Company enforceable against the Company in accordance with its
terms, except (x) as may be subject to or limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (B) the
applicability or effect of any fraudulent transfer, preference or similar
law, (C) the effect of general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), (D)
requirements that a claim with respect to any security authenticated and
delivered under that Indenture denominated other than in United States
dollars (or a judgment denominated other than in United States dollars in
respect of such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law, (E)
governmental authority to limit, delay or prohibit the making of payments
outside of the United States or in a foreign currency or currency units or
(F) the effect of general rules of contract law that limit the
enforceability of provisions requiring indemnification of a party for
liability for its own action or inaction to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct, and (y) that the waiver contained in Section 515 of each
of the Indentures may be deemed unenforceable.
(v) No consent or approval of any United States governmental
authority or other United States person or United States entity is required
in connection with the issuance or sale of the Notes other than
registration thereof under the 1933 Act, qualification of the appropriate
Indenture under the 1939 Act, and such registrations or qualifications as
may be necessary under the securities or Blue Sky laws of the various
United States jurisdictions in which the Notes are to be offered or sold
and the rules and regulations of the National Association of Securities
Dealers, Inc. The opinion expressed in this paragraph (v) is limited to
those consents and approvals which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by this
Agreement.
14
(vi) The Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with
the terms of the appropriate Indenture (assuming the due authorization,
execution and delivery of that Indenture by the Trustee) and issued to and
paid for by the purchasers thereof, will be entitled to the benefits of
that Indenture and will be valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
except (x) as may be subject to or limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (B) the applicability or effect of
any fraudulent transfer, preference or similar law, (C) the effect of
general principles of equity (regardless of whether such enforcement is
sought in a proceeding in equity or at law), (D) requirements that a claim
with respect to any Notes denominated other than in United States dollars
(or a judgment denominated other than in United States dollars in respect
of such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law, (E)
governmental authority to limit, delay or prohibit the making of payments
outside of the United States or in foreign currency or currency unit, and
(F) the effect of general rules of contract law that limit the
enforceability of provisions requiring indemnification of a party for
liability for its own action or inaction to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct, and (y) that the waiver contained in Section 515 of each
of the Indentures may be deemed unenforceable.
(vii) The Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and each of the
Indentures has been qualified under the 1939 Act, and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated by the Commission.
(viii) The execution and delivery of this Agreement and each of the
Indentures by the Company, the issuance and sale of the Notes and the
performance of this Agreement and the Indentures by the Company will not
(A) conflict with the Restated Certificate of Incorporation or Bylaws of
the Company, in each case, as amended, (B) violate or conflict with, or
result in any contravention of, any statute, law or regulation to which the
Company or any Principal Domestic Subsidiary or any of their respective
properties may be subject or (C) violate or conflict with any judgment,
decree or order, known to such counsel, after reasonable inquiry, of any
court or governmental agency or authority entered in any proceeding to
which the Company or any Principal Domestic Subsidiary was or is now a
party or by which it is bound, except that such counsel may state that the
opinion set forth in clause (B) of this paragraph (viii) is limited to
those statutes, laws or regulations in effect as of the date of such
opinion which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement and that such
counsel expresses no opinion as to the securities or Blue Sky laws of the
various jurisdictions in which the Notes are to be offered.
(ix) The Registration Statement and the Rule 462(b) Registration
Statement, as of their respective effective dates, and the Prospectus, as
of its date, including each
15
Incorporated Document when such Incorporated Document was filed or became
effective, or if any such Incorporated Document was amended, when such
amendment was filed or became effective, appeared on their face to be
appropriately responsive in all material respects to the applicable
requirements of the 1933 Act or the 1934 Act, as the case may be, except
that in each case such counsel may state that other than as set forth in
clause (x) of this Section 5(a), such counsel assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and such counsel need not express
an opinion as to the financial statements, schedules and other financial
data included or incorporated by reference therein or excluded therefrom,
or the exhibits thereto, including the Form T-1.
(x) The statements in the Prospectus under the captions
"Description of the Notes," "Description of Senior Debt Securities,"
"Description of Subordinated Debt Securities" and "Description of
Securities," insofar as they purport to summarize certain provisions of
documents specifically referred to therein, fairly summarize such
provisions in all material respects.
(xi) Except as set forth in the Prospectus (including the
Incorporated Documents), there is not pending or, to the knowledge of such
counsel, after reasonable inquiry, threatened any action, suit or
proceeding against the Company or any of its subsidiaries before or by any
court or governmental agency or body, which is likely (to the extent not
covered by insurance) to have a material adverse effect on the consolidated
financial condition of the Company and its subsidiaries, taken as a whole.
(xii) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described or filed as
required.
(xiii) To the best of such counsel's knowledge, after reasonable
inquiry, the Company is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended.
(xiv) To the best of such counsel's knowledge, after reasonable
inquiry, the execution and delivery of this Agreement, the Indentures and
any applicable Terms Agreement by the Company, the issuance and sale of the
Notes and the performance by the Company of its obligations under this
Agreement, the Indentures and any applicable Terms Agreement will not
conflict with or constitute a breach of or a default (with the passage of
time or otherwise) under, subject (except in respect of any Notes issued
and sold on the date of such opinion pursuant to an applicable Terms
Agreement) to the Company's compliance with any applicable covenants
pertaining to its incurrence of unsecured indebtedness, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, any agreement or instrument to which
the Company is a party or by which it is bound and that is, individually or
in the aggregate, material to the Company and its subsidiaries taken as a
whole. To the best of such counsel's knowledge, after reasonable inquiry,
the issuance and sale as of the date of this Agreement of all of the
authorized aggregate principal
16
amount of the Notes, both immediately before and after giving effect to
such issuance and sale, would not conflict with or constitute breach of or
a default (with the passage of time or otherwise) under any applicable
covenants pertaining to the Company's incurrence of unsecured indebtedness
contained in the agreements or instruments referred to above.
In rendering the foregoing opinions such counsel may state that with
respect to certain matters he has relied upon advice of other counsel employed
by the Company who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company, outside
counsel for the Company, representatives of the independent public accountants
for the Company, representatives of the Agents and counsel for the Agents, at
which conferences the contents of the Registration Statement and Prospectus and
related matters were discussed and, although he is not passing upon, and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (other than
as set forth in paragraph (x) above) and has not made any independent check or
verification thereof, on the basis of the foregoing, no facts have come to such
counsel's attention that lead him to believe that either the Registration
Statement (including the Incorporated Documents) at the time such Registration
Statement became effective (or if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement and prior to the
date of such statement, then at the time such amendment became effective or at
the time of the most recent such filing (to the extent deemed to be incorporated
by reference therein) as the case may be), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus (including the Incorporated Documents) as of the date of this
Agreement (and, if the opinion is being given pursuant to Section 6(b) hereof as
a result of the Company having entered into a Terms Agreement as contemplated by
the first paragraph of Section 6(b) or having filed an Incorporated Document
described in the second paragraph of Section 6(b), as of the Settlement Date
with respect to such Terms Agreement or as of the filing date of such
Incorporated Document, as the case may be) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no opinion with respect to the financial statements, schedules and other
financial data included or incorporated by reference in, or excluded from, the
Registration Statement or Prospectus or with respect to the Forms T-1.
(b) Opinion of Counsel for the Agents. On the date hereof, the Agents
shall have received an opinion from Sidley Austin Brown & Wood LLP, counsel to
the Agents, dated as of the date hereof and in form and substance satisfactory
to the Agents.
(c) Officer's Certificate. Except as contemplated in the Prospectus or
reflected therein by the filing of any amendment or supplement thereto or any
Incorporated Document, at the date hereof and at each Settlement Date with
respect to any Terms Agreement, there shall not have been, since the date of the
most recent consolidated financial statements included or incorporated by
reference in the Prospectus, any material adverse change, or any development
17
which is reasonably likely to result in a material adverse change, in the
consolidated financial condition or consolidated results of operations of the
Company and its subsidiaries, taken as a whole. On the date hereof (and, if this
certificate is being delivered pursuant to a Terms Agreement, as of the
Settlement Date with respect to such Terms Agreement), the Agents shall have
received a certificate signed by an officer of the Company, substantially in the
form of Appendix I hereto and dated the date hereof, to the effect (i) that
there has been no such material adverse change, (ii) that the representations
and warranties of the Company contained in Section I (a) hereof (other than
Section I (a)(vi)) are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) that the Company
has complied with all agreements and satisfied all conditions required by this
Agreement or either of the Indentures on its part to be performed or satisfied
at or prior to the date of such certificate and (iv) that no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to the best of such officer's knowledge, no proceedings for that purpose have
been initiated or threatened by the Commission.
(d) Comfort Letter. On the date hereof, the Agents shall have received a
letter from the Company's independent registered public accounting firm, dated
as of the date hereof and in form and substance satisfactory to the Agents,
containing statements and information of a type ordinarily included in
accountants' "comfort letters" to agents with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; and, if financial
statements for any assets, business or entity acquired by the Company are
included or incorporated by reference in the Registration Statement or the
Prospectus, the Agents shall have received a similar "comfort letter" from an
independent registered public accounting firm, dated as of the date hereof and
in form and substance satisfactory to the Agents, with respect to such financial
statements and any financial information with respect to such assets, business
or entity, as the case may be, contained or incorporated by reference in the
Registration Statement and the Prospectus. Without limitation to the foregoing,
the letter delivered by the Company's independent registered public accounting
firm shall state that nothing has come to their attention that caused them to
believe that at a specified date not more than five days prior to the date of
such letter, there was any change in the outstanding capital stock of the
Company or any increase in consolidated long-term debt of the Company or any
decrease in the stockholders' equity of the Company, in each case as compared
with the amounts shown on the most recent consolidated balance sheet of the
Company incorporated by reference in the Registration Statement and Prospectus
or, during the period from the date of such balance sheet to a specified date
not more than five days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated net sales and operating revenues or net income of the Company,
except in each such case as set forth in or contemplated by the Registration
Statement and Prospectus or except for such exceptions enumerated in such letter
as shall have been agreed to by the Agents and the Company.
(e) Other Documents. On the date hereof and on each Settlement Date with
respect to any applicable Terms Agreement, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of the Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained.
18
(f) Effectiveness of Registration Statement. The Registration Statement
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
instituted or, to the knowledge of the Company or the Agents, threatened or
contemplated by the Commission; no stop order suspending the sale of the Notes
in any jurisdiction designated by the Agents pursuant to Section 3(f) shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or the Agents, threatened or shall be
contemplated; any request of the Commission for additional information (to be
included in the Registration Statement, the Rule 462(b) Registration Statement
or the Prospectus or otherwise) shall have been complied with to the reasonable
satisfaction of the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by any of
the Agents (as to itself only) and any Terms Agreement may be terminated by the
Agent party to such Terms Agreement by notice to the Company at any time, and
any such termination shall be without liability of any party to any other party,
except that the covenants set forth in Section 3(e) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 7 and 8 hereof and the provisions of Sections 9 and 13 hereof shall
remain in effect.
SECTION 6. Subsequent Documentation Requirements of the Company.
The Company covenants and agrees that so long as Notes are authorized for
sale pursuant to this Agreement and unless the sale of Notes has been suspended
as provided in this Agreement:
(a) Subsequent Delivery of Certificates. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by (i)
a Pricing Supplement or an amendment or other supplement providing solely for a
change in the interest rates of the Notes or changes in other terms of the Notes
or (ii) an amendment or supplement which relates exclusively to an offering of
securities other than the Notes) or there is filed with the Commission any
document incorporated, or deemed to be incorporated, by reference into the
Prospectus (other than a Current Report on Form 8-K, unless delivery of a
certificate is reasonably requested by the Agents with respect to such filing)
or the Company sells Notes to an Agent pursuant to a Terms Agreement, the terms
of which so require, the Company shall furnish or cause to be furnished to the
Agents or to the Agent party to the Terms Agreement, as the case may be,
promptly following such amendment, supplement or filing or on the Settlement
Date with respect to such Terms Agreement, as the case may be, a certificate in
form satisfactory to counsel for the Agents to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof that was last
furnished to the Agents are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(c), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate (it being understood that, in the case of a
purchase by such Agent(s) as principal, any such certificate shall also include
a certification that there has not been any
19
material adverse change, or any development which is reasonably likely to result
in a material adverse change, in the consolidated financial condition or
consolidated results of operations of the Company and its subsidiaries, taken as
a whole, since the date of such Terms Agreement.
(b) Subsequent Delivery of Legal Opinions. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by (i)
a Pricing Supplement or an amendment or other supplement providing solely for a
change in the interest rates of the Notes or changes in other terms of the
Notes, (ii) an amendment or supplement providing solely for the inclusion of
additional financial information or (iii) an amendment or supplement that
relates exclusively to an offering of securities other than the Notes) or there
is filed with the Commission any document incorporated, or deemed to be
incorporated, by reference into the Prospectus (other than the filing of a
Current Report on Form 8-K, unless delivery of an opinion is reasonably
requested by the Agents with respect to such filing), the Company sells Notes in
a form not previously certified by the Company to the Agents, or the Company
sells Notes to an Agent pursuant to a Terms Agreement, the terms of which so
require, the Company shall furnish or cause to be furnished, promptly following
such amendment, supplement or filing or on the Settlement Date with respect to
such Terms Agreement, as the case may be, to the Agents or to the Agent party to
the Terms Agreement, as the case may be, a letter substantially in the form of
Appendix II hereto (modified, as necessary, in the case of a Terms Agreement)
from the counsel last furnishing the opinion referred to in Section 5(a) hereof
or, in lieu of such letter, a letter from other counsel satisfactory to counsel
for the Agents, dated the date of delivery of such letter and in form
satisfactory to counsel for the Agents, of the same tenor as the opinion
referred to in Section 5(a) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the
time of delivery of such opinion.
(c) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than an amendment or supplement
relating solely to the issuance of securities other than the Notes) or there is
filed with the Commission any document incorporated, or deemed to be
incorporated, by reference into the Prospectus which contains additional
financial statement information relating to the Company or the Company sells
Notes pursuant to a Terms Agreement, the terms of which so require, the Company
shall cause the Company's independent registered public accounting firm,
promptly following such amendment, supplement or filing or on the Settlement
Date with respect to such Terms Agreement, as the case may be, to furnish the
Agents or to the Agent party to the Terms Agreement, as the case may be, a
letter, dated the date of filing of such amendment, supplement or document with
the Commission, or such Settlement Date, as the case may be, in form
satisfactory to counsel for the Agents (or such Agent), of the same general
tenor as the letter furnished pursuant to Section 5(d) hereof (other than the
information required by the last sentence thereof, except in the case of a Terms
Agreement, the terms of which so require) but modified, as necessary, to relate
to the Registration Statement and Prospectus, as amended and supplemented to the
date of such letter and with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, the Company's independent registered
public accounting firm may
20
limit the scope of such letter to the unaudited financial statements included in
such amendment or supplement.
SECTION 7. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Agents), as incurred, insofar as such loss, liability, claim, damage or
expense arises out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arises out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Agents), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, insofar as such loss, liability, claim, damage or expense
arises out of any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever (including, subject to
the limitations set forth in subsection (c) below, the reasonable fees and
disbursements of counsel chosen by the Agents), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever, based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense (A) to the extent arising out of or based upon any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon the Form T-1 under the 1939 Act filed as an exhibit to the
Registration Statement; or (B) to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission in the Prospectus, if such
untrue statement or alleged untrue statement or omission or alleged omission is
corrected in an amendment or supplement to the Prospectus and if, having
previously been furnished by or on behalf of the Company with copies of the
Prospectus, as so amended or supplemented, such Agent thereafter failed to
deliver such Prospectus, as so amended or supplemented, prior to or concurrently
with the sale of a Note or Notes to the person asserting such loss, liability,
claim,
21
damage or expense who purchased such Note or Notes that are the subject thereof
from such Agent; or (C) as to which such Agent may be required to indemnify the
Company pursuant to the provisions of subsection (b) of this Section 7; or (D)
if such loss, liability, claim, damage or expense is covered by any other
written agreement between the Company and such Agent pertaining to the sale of
the Notes pursuant to which such Agent may be required to indemnify the Company
for such loss, liability, claim, damage or expense.
(b) Indemnification of the Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 7, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Agent expressly for use in the Registration Statement or the
Prospectus.
(c) General. (i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Agent or any person controlling such Agent, based upon the Registration
Statement or the Prospectus and with respect to which indemnity may be sought
against the Company pursuant to this Section 7, such Agent or controlling person
shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Agent and payment of all expenses. Failure to give such notice shall not
relieve the Company from any liability which it may have otherwise than on
account of the indemnity contained in this Section 7. Any such Agent or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of such Agent
or such controlling person, unless (A) the employment of such counsel shall have
been specifically authorized in writing by the Company, (B) the Company shall
have failed to assume the defense and employ reasonably satisfactory counsel or
(C) the named parties to any such action, suit or proceeding (including any
impleaded parties) shall include both such Agent or such controlling person and
the Company, and such Agent or such controlling person shall have been advised
by such counsel that there may be one or more legal defenses available to it
that are different from, or additional to, those available to the Company (in
which case, if such Agent or such controlling person notifies the Company in
writing that it elects to employ separate counsel at the expense of the Company,
the Company shall not have the right to assume the defense of such action, suit
or proceeding on behalf of such Agent or such controlling person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Agents and all such
controlling persons, which firm shall be designated in writing by a majority of
all such Agents, on behalf of all of such Agents and such controlling persons).
(ii) In case any action, suit or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the Company,
any of the Company's
22
directors or officers, or any person controlling the Company, with respect to
which indemnity may be sought against any Agent pursuant to this Section 7, such
Agent shall have the rights and duties given to the Company by subsection (c)(i)
of this Section 7, and the Company, the Company's directors and officers and any
such controlling person shall have the rights and duties given to the Agents by
subsection (c)(i) of this Section 7.
SECTION 8. Contribution.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 7 hereof is for any reason
held to be unenforceable with respect to the indemnified parties, although
applicable in accordance with its terms, the Company and each Agent shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Agents, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and each of the
Agents participating in the offering of Notes that gave rise to such losses,
liabilities, claims, damages and expenses (a "Relevant Agent"), on the other
hand, from the offering of such Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and each of
the Relevant Agents, on the other hand, in connection with the statements or
omissions that resulted in such losses, liabilities, claims, damages and
expenses. The relative benefits received by the Company, on the one hand, and
each Relevant Agent, on the other hand, shall be deemed to be in the same
proportions as the total net proceeds from the sale of such Notes (before
deducting expenses) received by the Company, on the one hand, and the total
commissions or other compensation or remuneration received by each Relevant
Agent, on the other hand, bear to the total purchase price of such Notes as set
forth in the applicable Pricing Supplement. The relative fault of the Company,
on the one hand, and each Relevant Agent, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by such Relevant
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. If more than one
Agent is a Relevant Agent in a proceeding, each Relevant Agent's obligation to
contribute pursuant to this Section 8 shall be several and not joint, and shall
be in the proportion that the principal amount of Notes that are the subject of
such proceeding that were offered and sold through such Relevant Agent bears to
the aggregate principal amount of Notes that are the subject of such proceeding.
Notwithstanding the provisions of this Section 8, no Relevant Agent shall be
required to contribute any amount in excess of the amount by which the total
purchase price at which the Notes were offered by such Relevant Agent to the
public exceeds the amount of any damages that such Relevant Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 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, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933
23
Act shall have the same rights to contribution as the Company. Any party
entitled to contribution hereunder will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have otherwise than under this Section 8.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or any Terms Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement may be terminated by the
Company (i) for any reason at any time with respect to any Agent or Agents upon
the giving of 10 days' written notice of such termination to each other party
hereto or (ii) at any time upon notice to each other party hereto if no Notes
then remain authorized for sale pursuant hereto. This Agreement may be
terminated by any Agent (as to itself only) either (x) upon the giving of 10
days' written notice of such termination to each other party hereto or (y) at
any time upon notice to the Company if the Company shall have failed to furnish
or cause to be furnished the certificates, opinions or letters referred to in
Section 5 or 6 hereof or if no Notes then remain authorized for sale pursuant
hereto.
(b) Termination of a Terms Agreement. An Agent party to a Terms Agreement
may terminate such Terms Agreement (as to itself only) immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto, if
between the date of such Terms Agreement and the related Settlement Date (i)
there shall have been any material adverse change in the consolidated financial
condition of the Company and its subsidiaries, taken as a whole, (ii) there
shall have occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other national or
international calamity or crisis, the effect of which shall be such as to make
it, in the reasonable judgment of such Agent, impracticable to market or to
enforce contracts for sale of the Notes or other debt securities, (iii) trading
in any securities of the Company shall have been suspended by the Commission or
a national securities exchange in the United States, or if trading generally on
the New York Stock Exchange shall have been suspended or settlement shall have
been materially disrupted, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by said exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated or
payable, (iv) in the case of a Terms Agreement relating to Senior Notes, any of
the nationally recognized securities rating agencies referred to in
24
Section 3(a)(vi) hereof shall have publicly announced that it has (A) placed the
Senior Notes or the Company's unsecured senior long-term debt generally on what
is commonly termed a "watch list" for possible downgrading or (B) downgraded the
Senior Notes or the Company's unsecured senior long-term debt generally, (v) in
the case of a Terms Agreement relating to Subordinated Notes, any of the
nationally recognized securities rating agencies referred to in Section 3(a)(vi)
hereof shall have publicly announced that it has (A) placed the Subordinated
Notes or the Company's unsecured subordinated long-term debt generally on what
is commonly termed a "watch list" for possible downgrading or (B) downgraded the
Subordinated Notes or the Company's unsecured subordinated long-term debt
generally, or (vi) the Company shall have failed to furnish or cause to be
furnished the certificates, opinions or letters referred to in Section 6 hereof.
(c) General. In the event of any such termination, no party will have any
liability to any other party hereto, except that (i) a terminating Agent shall
be entitled to any commissions earned in accordance with the third paragraph of
Section 2(a) hereof, (ii) if at the time of termination (A) a terminating Agent
and the Company shall have entered into a Terms Agreement and the Settlement
Date with respect thereto shall not yet have occurred or (B) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 3 (subject to the provisions
of Section 3(g)) and 6 hereof shall remain in effect until such Settlement Date
or until such Notes are so delivered, as the case may be, (iii) if at the time
of termination an Agent holds Notes purchased under a Terms Agreement entered
into within 90 days of such termination, the covenants set forth in Section 3(d)
(subject to the provisions of Section 3(g)) shall remain in effect for a period
of 90 days following the date such Terms Agreement is entered into (subject to
extension pursuant to Section 3(g)) and (iv) the covenants set forth in Section
3(e) hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof and the provisions of Sections 9
and 13 hereof shall remain in effect.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Agents shall be directed, as the case
may be, to Banc of America Securities LLC, at 40 West 57th Street, New York, New
York 10019 Attention: High Grade Capital Markets, Transaction Management/Legal,
phone: (646) 313-8800, facsimile: (704) 264-2522; to Citigroup Global Markets
Inc., at 388 Greenwich Street, New York, New York 10013, Attention: Medium-Term
Note Department, telephone: (212) 816-5831, facsimile: (212) 816-0949; to Credit
Suisse First Boston LLC, at Eleven Madison Avenue, New York, New York
10010-3629, Attention: Short and Medium Term Finance, telephone: (212) 325-7198,
facsimile: (212) 743-5825; to J.P. Morgan Securities Inc., 270 Park Avenue, 9th
Floor, New York, New York 10017, Attention: Transaction Execution Group,
telephone: (212) 834-5710, facsimile: (212) 834-6702; and to Morgan Stanley &
Co. Incorporated, at 1585 Broadway, New York, New York 10036, Attention: Manager
- - Continuously Offered Products, telephone: (212) 761-1685, facsimile: (212)
761-0780. Notices to the Company shall be directed to it at 10889 Wilshire
Boulevard, Los Angeles, California 90024, attention of Vice President and
Treasurer.
25
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the Agents
(and, in the case of a Terms Agreement, the Agent or Agents party thereto) and
the Company and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provisions
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement and the rights and obligations of the parties created hereby
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State,
including, without limitation, Section 5-1401 of the New York General
Obligations Law.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ J.R. Havert
------------------------------------
Name: J.R. Havert
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
Banc of America Securities LLC
By: /s/ Peter Carbone
-----------------------------------
Name: Peter Carbone
Title: Vice President
Citigroup Global Markets Inc.
By: /s/ Paul Bitler
-----------------------------------
Name: Paul Bitler
Title: Director
Credit Suisse First Boston LLC
By: /s/ Helena M. Willner
-----------------------------------
Name: Helena M. Willner
Title: Director
27
J.P. Morgan Securities Inc.
By: /s/ Maria Sramek
-----------------------------------
Name: Maria Sramek
Title: Vice President
Morgan Stanley & Co. Incorporated
By: /s/ Michael Fusco
-----------------------------------
Name: Michael Fusco
Title: Executive Director
28
EXHIBIT A
COMMISSION
TERM (a) RATE (b)
- -------- --------
More than 9 months but less than 1 year.............................. .125%
From 1 year but less than 18 months.................................. .150%
From 18 months but less than 2 years................................. .200%
From 2 years but less than 3 years................................... .250%
From 3 years but less than 4 years................................... .350%
From 4 years but less than 5 years................................... .450%
From 5 years but less than 6 years................................... .500%
From 6 years but less than 7 years................................... .550%
From 7 years but less than 10 years ................................. .600%
From 10 years but less than 15 years................................. .625%
From 15 years but less than 20 years................................. .700%
From 20 years but less than 30 years................................. .750%
Greater than 30 years ............................................... (c)
(a) With respect to each Note that is subject to purchase by the Company
at the option of the holder thereof (a "Put Note"), the word "Term" as
used in this Exhibit A refers to the earliest purchase date specified
in the applicable Put Note.
(b) With respect to each Note that is a Discount Security (as defined in
the Indentures), the commission payable to each Agent with respect to
each such Note sold as a result of a solicitation made by such Agent
shall be based on the purchase price of such Note.
(c) With respect to each Note with a term in excess of 30 years from the
date of issue, the commission payable to each Agent with respect to
each such Note sold as a result of a solicitation made by such Agent
will be agreed to by the Company and such Agent at the time of such
sale.
A-1
EXHIBIT B
The following terms, if applicable, shall be agreed to by the Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $_______________
(or principal amount of
foreign currency)
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
If Floating Rate Note:
Base Rate or Rates (or the method of calculating the Base Rate or
Rates):
If LIBOR,
~LIBOR Reuters Page:
~LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Moneyline Telerate Page:
If Moneyline Telerate Page 7052:
~Weekly Average:
~Monthly Average:
Designated CMT Maturity Index:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Interest Payment Dates:
Index Maturity:
Interest Determination Dates:
Maximum Interest Rate, if any:
Initial Interest Reset Date:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent (if other than the Trustee):
1
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Original Issue Date:
Stated Maturity:
Purchase Price: ______%, plus accrued interest, if any, from _______________
Price to Public: _____%, plus accrued interest, if any, from _______________
Settlement Date and Time:
Currency of Denomination (if currency is other than U. S. dollar):
Currency of Payment (if currency is other than U. S. dollar):
Denominations:
Additional Terms:
Also, agreement as to whether the following will be required:*
Officer's Certificate pursuant to Section 6(a) of the Distribution
Agreement.
Legal Opinion pursuant to Section 6(b) of the Distribution Agreement.
Comfort Letter pursuant to Section 6(c) of the Distribution Agreement.
- ---------------
*The following generally will not be required in connection with a sale of less
than $50,000,000 aggregate principal amount of Notes.
2
EXHIBIT C
OCCIDENTAL PETROLEUM CORPORATION
MEDIUM-TERM SENIOR NOTES, SERIES D
MEDIUM TERM SUBORDINATED NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
April 21, 2005
The administrative procedures and specific terms of the offering of
Medium-Term Senior Notes, Series D (the "Senior Notes") and Medium-Term
Subordinated Notes, Series A (the "Subordinated Notes" and, together with the
Senior Notes, the "Notes") on a continuous basis by Occidental Petroleum
Corporation (the "Issuer") pursuant to the Distribution Agreement, dated April
21, 2005 (the "Distribution Agreement"), between the Issuer and each of Banc of
America Securities LLC, Citigroup Global Markets Inc., Credit Suisse First
Boston LLC, J.P. Morgan Securities Inc. and Morgan Stanley & Co. Incorporated
(each an "Agent" and collectively, the "Agents") are explained below. In the
Distribution Agreement, the Agents have agreed to use their best efforts to
solicit offers to purchase the Notes. Each Agent, as principal, may purchase
Notes for its own account pursuant to the terms and settlement details of a
terms agreement entered into between the Issuer and such Agent, as contemplated
by the Distribution Agreement. In the Distribution Agreement, the Issuer
reserves the right to sell Notes directly on its own behalf.
Each Senior Note will be issued under an indenture between the Issuer and
The Bank of New York, as trustee, (the "Trustee"), dated as of April 1, 1998
(the "Senior Indenture," which term, for the purposes hereof, shall include the
officers' certificate (the "Senior Notes Officers' Certificate") delivered from
time to time pursuant to Sections 201 and 301 of the Senior Indenture
establishing the terms of the Senior Notes, as amended by the Second
Supplemental Indenture dated April 21, 2005 (the "Second Supplemental
Indenture"), relating to senior debt securities of the Issuer. Each Subordinated
Note will be issued under an Indenture between the Issuer and the Trustee dated
as of January 20, 1999 (the "Subordinated Indenture," which term, for the
purposes hereof, shall include the officers' certificate (the "Subordinated
Notes Officers' Certificate" and, together with the Senior Notes Officers'
Certificate, the "Officers' Certificates") delivered from time to time pursuant
to Sections 201 and 301 of the Subordinated Indenture establishing the terms of
the Subordinated Notes), including, without limitation, the Officers'
Certificate dated June 30, 1999, as amended by the First Supplemental Indenture
dated March 6, 2002, between the Company and the Trustee, and the Second
Supplemental Indenture, relating to the subordinated debt securities of the
Issuer. The Senior Indenture and the Subordinated Indenture are herein referred
to collectively as the "Indentures." Notes will bear interest at fixed rates
("Fixed Rate Notes"), floating rates ("Floating Rate Notes") or will not bear
interest. 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"). Owners of beneficial interests in a
Global Security will be entitled to physical delivery of Certificated Notes
equal in principal amount to their respective beneficial interests only under
certain limited circumstances.
1
The Trustee will act as Paying Agent for the payment of principal of and
interest on the Notes and will perform, as Paying Agent, unless otherwise
specified in the Notes, the applicable Indenture or herein, the other duties
specified herein. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Any administrative responsibilities, document control and
record-keeping functions to be performed by the Issuer will be performed by its
Treasury Department. To the extent that the procedures set forth herein conflict
with any provision of the Notes (which, in the case of Book-Entry Notes shall be
the related Global Security), the applicable Indenture, DTC's operating
requirements or the Distribution Agreement, the relevant provisions of the
Notes, the applicable Indenture, DTC's operating requirements or the
Distribution Agreement shall be controlling. Unless otherwise defined herein,
terms defined in the Indentures, the Officers' Certificates or the Notes shall
be used herein as therein defined.
Upon the agreement of the Company, the Trustee and the Agent or Agents with
respect to a particular issue of Notes, subject to the terms of the applicable
Indenture, the terms and procedures with respect to such issue of Notes may be
varied from those set forth herein.
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 Issuer and the Trustee to DTC dated as of June 30, 1999, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated August
17, 1989, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Issuer will issue a single global security in fully
registered form without coupons (a "Global Security")
representing up to $500,000,000 principal amount, or
face amount if indexed principal notes, of all such
Notes that have the same Original Issue Price, Stated
Maturity, Earliest Redemption Date, Redemption Price
and other redemption provisions, if any, Purchase Date
or Dates and Purchase Price or Prices, if any, Interest
Payment Dates, Regular Record Dates, Interest Payment
Period, Original Issue Discount, if any, Yield to
Maturity, if applicable, and, additionally, in the case
of Fixed Rate Notes, interest rate and, in the case of
Floating Rate Notes, Initial Interest Rate, if any,
Base Rate or Rates, Index Maturity, Interest Reset
Period, Interest Reset Dates, Option Reset Dates, if
any, Spread or Spread Multiplier, if any, Minimum
Interest Rate, if any, and Maximum Interest Rate, if
any (collectively the "Terms"). Each Global Security
will be dated and issued as of the date of its
authentication by the
2
Trustee. Each Global Security will bear interest from
the later of the Original Issue Date specified therein
or from the most recent Interest Payment Date with
respect to such Global Security (or Predecessor
Security) to which interest has been paid or duly
provided for (such later date being herein referred to
as a "Global Interest Accrual Date"). Book-Entry Notes
may only be denominated and payable in U.S. dollars. No
Global Security will represent any Certificated Note.
Identification Numbers: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of two series of CUSIP
numbers (including tranche numbers), which individually
consist of approximately 700 CUSIP numbers remaining
for Senior Notes and 900 CUSIP numbers for the
Subordinated Notes and relates to Global Securities
representing the Book-Entry Notes. The Issuer has
obtained from the CUSIP Service Bureau a written list
of such series of reserved CUSIP numbers and has
delivered to the Trustee and DTC such written list of
CUSIP numbers. The Issuer will assign CUSIP numbers to
Global Securities as described under Settlement
Procedure "B" below. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Issuer has assigned to Global Securities. At any time
when fewer than 100 of the reserved CUSIP numbers of a
series remain unassigned to Global Securities, the
Trustee will notify the Issuer and, if the Issuer deems
necessary, it will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry
Notes. Upon obtaining such additional CUSIP numbers,
the Issuer shall deliver a list of such additional
CUSIP numbers to the Trustee and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security
Register maintained under the applicable 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 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 Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through
the records of such Participants or through the
separate records
3
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: At the request of the Issuer, the Trustee shall deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the
CUSIP numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes having the
same Terms and for which interest has been paid to the
same date, (ii) a date, occurring at least 30 days
after such written notice is delivered and at least 30
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 Issuer,
to be assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of
the Global Securities to be exchanged will no longer be
valid. On the specified exchange date, the Trustee will
exchange such Global Securities for a single Global
Security bearing the new CUSIP number, and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau customary
procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed $500,000,000
in aggregate principal amount, one Global Security will
be authenticated and issued to represent each
$500,000,000 of principal amount of the exchanged
Global Securities and an additional Global Security
will be authenticated and issued to represent any
remaining principal amount of such Global Securities
(see "Denominations" below).
Maturities: Each Book-Entry Note will mature on a date not less
than nine months after the settlement date for such
Note.
4
Notice of Redemption In the case of a full redemption of all Book-Entry
Dates: Notes represented by a single Global Security, the
Trustee will notify DTC not more than 60 but not less
than 30 days prior to the Redemption Date with respect
to such Global Security, of the CUSIP number of such
Global Security, the Redemption Date and the Redemption
Price. In the case of a redemption of less than all
Book-Entry Notes represented by a single Global
Security, the Trustee will notify DTC not more than 2
business days before 60 days, but not less than 2
business days before 30 days, prior to the Redemption
Date with respect to such Global Security, of the CUSIP
number of such Global Security, the Redemption Date and
the Redemption Price.
Notice of Purchase In the case of any Global Security having a Purchase
Dates: Date or Dates specified therein, the Trustee will
notify DTC, upon the earlier of 60 days prior to each
such Purchase Date or 5 days prior to the first date on
which a Purchase Notice with respect to such Purchase
Date may be delivered to the Trustee, of the CUSIP
number of such Global Security, the first and last date
on which a Purchase Notice with respect to such
Purchase Date may be delivered to the Trustee, the
Purchase Date and the Purchase Price.
Denominations: Book-Entry Notes will be sold in denominations of
$1,000 and any amount in excess thereof that is an
integral multiple of $1,000, unless otherwise indicated
in the applicable Book-Entry Note. Global Securities
will be issued in denominations of $1,000 and any
amount in excess thereof that is an integral multiple
of $1,000, up to a maximum denomination of
$500,000,000. If one or more Book-Entry Notes having an
aggregate principal amount in excess of $500,000,000
would, but for the preceding sentence, be represented
by a single Global Security, then one Global Security
will be issued to represent each $500,000,000 principal
amount of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue
from the Global Interest Accrual Date of the Global
Security representing such Note and will be paid on the
Interest Payment Dates of the Global Security
representing such Book-Entry Note. In the case of a
Global Security originally issued between a Regular
Record Date and the related Interest Payment Date or on
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date immediately
following the next Regular Record Date. Each payment of
interest on a Global Security will include
5
interest accrued to but excluding the Interest Payment
Date or Maturity. See "Calculation of Interest" below.
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 any Global Security in the appropriate daily
or weekly bond reports published by Standard & Poor's
Corporation.
Regular Record Dates. Unless otherwise specified in the
applicable Global Security, the Regular Record Date
with respect to Fixed Rate Book-Entry Notes shall be
the April 30 or October 31, as the case may be, next
preceding the applicable Interest Payment Date. The
Regular Record Date with respect to any Interest
Payment Date for Floating Rate Book-Entry Notes shall
be the fifteenth day (whether or not a Business Day)
next preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified
in the applicable Global Security, interest payments on
Fixed Rate Book-Entry Notes will be made semiannually
on May 15 and November 15 of each year and at Maturity,
subject to the exceptions specified in "Payments of
Principal and Interest" below.
Floating Rate Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semiannually or annually of each year, as
specified in the related Global Security, and at
Maturity. Unless otherwise specified in the applicable
Global Security and subject to the exceptions specified
in "Payments of Principal and Interest" below, interest
will be payable, in the case of Floating Rate
Book-Entry Notes which reset (i) daily, weekly or
monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December
of each year, as specified in the Global Security
representing the applicable Book-Entry Note; (ii)
quarterly, on the third Wednesday of March, June,
September and December of each year; (iii)
semiannually, on the third Wednesday of each of the two
months specified in the Global Security representing
the applicable Book-Entry Note; and (iv) annually, on
the third Wednesday of the month specified in the
Global Security representing the applicable Book-Entry
Note; and, in each case, at Maturity.
6
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
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates (to the extent then
determinable by the Trustee) that will occur with
respect to each Global Security during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date for Floating
Rate Notes, the calculation agent (the "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. Except as otherwise
Interest: specified in the applicable Global Securities, 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 Global Security representing the
applicable Floating Rate Book-Entry Notes. Except as
otherwise specified in the applicable Global
Securities, interest will be calculated in the case of
(a) CD Rate, Eleventh District Cost of Funds Rate,
Commercial Paper Rate, Federal Funds Rate, LIBOR and
Prime Rate Notes, on the basis of the actual number of
days in the interest period and a 360-day year; and (b)
CMT Rate and Treasury Rate Notes, on the basis of the
actual number of days in the interest period and the
actual number of days in the year.
Payments of Principal Payments of Interest Only. Promptly after each Regular
and Interest: Record Date, the Trustee will deliver to the Issuer and
DTC a written notice specifying 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 check the amount
payable on each Global Security on such Interest
Payment Date as shown in the appropriate daily or
weekly bond reports published by Standard & Poor's
Corporation. On such Interest Payment Date, the Issuer
will pay to the Trustee 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 the times and in the manner set forth below under
"Manner of Payment."
If any Interest Payment Date for a Fixed Rate
Book-Entry Note is scheduled to occur on a day that is
not a Business Day with respect to such Fixed Rate
Book-Entry Note, the payment due on such Interest
Payment Date will be made on the following day that is
a
7
Business Day with respect to such Fixed Rate Book-Entry
Note, and no interest shall accrue on the amount
payable on such Interest Payment Date for the period
from and after such Interest Payment Date to such
following day that is a Business Day.
If any Interest Payment Date for a Floating Rate
Book-Entry Note is scheduled to occur on a day that is
not a Business Day with respect to such Floating Rate
Book-Entry Note, such Interest Payment Date will be the
following day that is a Business Day with respect to
such Floating Rate Book-Entry Note; provided, however,
that in the case of a Floating Rate Book-Entry Note
which is a LIBOR Note, if such following day that is a
Business Day is in the next succeeding calendar month,
such Interest Payment Date will be the immediately
preceding day that is a Business Day.
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal and interest
to be paid on each Global Security either maturing at
Stated Maturity or maturing (in whole or in part) on a
Redemption Date or Purchase Date in the following month
(to the extent then determinable by the Trustee). The
Issuer, the Trustee and DTC will confirm the amounts of
such principal and interest payments with respect to
each such Global Security on or about the fifth
Business Day preceding the Maturity of such Global
Security. The Issuer will pay to The Bank of New York,
as the Paying Agent, the principal amount of such
Global Security, together with interest due at such
Maturity. The Paying Agent will pay such amounts to DTC
at the times and in the manner set forth under "Manner
of Payment" below. 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 the Maturity of such
Global Security, the Trustee will cancel such Global
Security in accordance with the terms of the Indenture,
deliver to the Issuer an appropriate debit advice and
return to the Issuer all such cancelled Global
Securities; provided, however, that in the event only a
portion of a Global Security shall have been redeemed
or purchased by the Issuer, the Trustee will exchange
such Global Security for two Global Securities, one of
which shall represent the portion of the original
Global Security which was so redeemed or purchased and
shall be cancelled immediately after issuance and the
other of which shall represent the remaining portion of
the original Global Security which was not so redeemed
or purchased and shall bear the CUSIP number of the
original Global Security.
8
On the first Business Day of each month, the Trustee
will deliver to the Issuer by facsimile transmission a
written statement, indicating the total principal
amount of Outstanding Global Securities for which it
serves as trustee as of the immediately preceding
Business Day.
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 Issuer
to the Trustee in funds available for use by the
Trustee as of 9:30 a.m. (New York City time) or in any
event not later than 12:00 noon (New York City time) on
such date. The Issuer will make such payment on such
Global Securities by wire transfer to the Trustee.
Prior to 10:00 a.m. (New York City time) on each
Maturity date or as soon as possible thereafter
following the receipt of funds, 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 interest and
principal due on a Global Security on such date. On
each Interest Payment Date, interest payments shall be
made to DTC in same day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter 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 Issuer (either as Issuer or as Paying
Agent) nor the Trustee shall have any 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. Appropriate documentation regarding such
withholding will be obtained from the beneficial owner
of such Note by the Participant, indirect participant
in DTC or other Person responsible for forwarding
payments and materials directly to the beneficial owner
of such Note.
Acceptance and The Issuer has the sole right to accept offers to
Rejection of Offers: purchase Book-Entry Notes and may reject any such offer
in whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any
9
offer to purchase Book-Entry Notes received by it in
whole or in part. Each Agent will advise the Issuer
promptly by telephone or by facsimile transmission of
all offers to purchase Book-Entry Notes received by
such Agent, other than those rejected by it.
Settlement: The receipt by the Issuer of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect to such Note. Each offer accepted by the
Issuer will be settled on the third Business Day
following acceptance of such offer pursuant to the
timetable for settlement set forth below, unless the
Issuer and the purchaser agree to settlement on another
day which shall be no earlier than the Business Day
following acceptance of such offer.
Settlement Procedures: In the event of a purchase of Book-Entry Notes by one
or more of the Agents, as principal, appropriate
settlement details, if different from those set forth
below, will be set forth in an applicable
Terms Agreement to be entered into between such Agent
or Agents and the Issuer pursuant to the Distribution
Agreement. Settlement Procedures with regard to each
Book-Entry Note sold by the Issuer through an Agent, as
agent, shall be as follows:
A. Such Agent will advise the Issuer by facsimile
transmission of the following settlement
information:
1. Whether the form of the Global Security
representing such Note is the Form of Senior
Global Fixed Rate Registered Security, Form
of Senior Global Floating Rate Registered
Security, Form of Senior Global Discount
Registered Security, Form of Senior Global
Zero Coupon Registered Security, Form of
Subordinated Global Fixed Rate Registered
Security, Form of Subordinated Global
Floating Rate Registered Security, Form of
Subordinated Global Discount Registered
Security or Form of Subordinated Global Zero
Coupon Registered Security.
2. Principal amount.
3. Stated Maturity.
4. Specified Currency (if other than U.S.
dollars).
5. If such Note is a Fixed Rate Note, the
interest rate. If such Note is a Floating
Rate Note, the following:
10
a) Whether such Note is a Regular Floating
Rate Note, an Inverse Floating Rate Note
or a Floating Rate/Fixed Rate Note;
b) Interest Rate Basis or Bases (or the
method of calculating the Interest Rate
Basis or Bases);
c) Initial Interest Rate, if any;
d) Spread and/or Spread Multiplier, if any;
e) Interest Reset Dates;
f) Optional Reset Dates, if any;
g) Interest Reset Period;
h) Interest Payment Dates;
i) Index Maturity;
j) Interest Payment Period;
k) Calculation Agent (if other than The
Bank of New York);
l) Exchange Rate Agent (if other than The
Bank of New York);
m) Maximum Interest Rate, if any;
n) Minimum Interest Rate, if any; and
o) Interest Determination Dates.
6. Optional Redemption Date(s), Initial
Redemption Percentage, Annual Redemption
Percentage Reduction and other redemption
provisions, if any.
7. Original Issue Date.
8. Issue Price.
9. Original Issue Discount, if any, and Yield to
Maturity, if applicable.
10. Agent's DTC participant account number and
Agent's commission, determined as provided in
11
Section 2 of the Distribution Agreement
between the Issuer and such Agent.
11. Additional terms or provisions of such Note,
if any.
B. The Issuer will assign a CUSIP number to the
Global Security representing such Note and then
advise the Trustee by telephone (confirmed in
writing at any time on the same date) or facsimile
transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number
and the name of such Agent. The Issuer will also
notify the Agent of such CUSIP number by telephone
as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, such Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A" above.
2. Numbers of the participant accounts
maintained by DTC on behalf of the Trustee
and the Agent.
3. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
4. Initial Interest Payment Date for such Note,
Regular Record Date and amount of interest
payable on such Interest Payment Date.
5. Interest Payment Period.
6. CUSIP number of the Global Security
representing such Note.
7. Whether such Global Security will represent
any other Book-Entry Note (to the extent
known at such time).
D. The Issuer will deliver to the Trustee a
pre-printed Global Security to represent such
Note, in a form that has been approved by the
Issuer, the Agents and the Trustee.
E. The Trustee will complete and authenticate the
Global Security representing such Note.
12
F. DTC will credit such 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 Note to the
Trustee's participant account and credit such Note
to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal
to the price of such Note less such Agent's
commission. The entry of such a deliver order
shall constitute a representation and warranty by
the Trustee to DTC that (i) the Global Security
representing such Book-Entry Note has been issued
and authenticated and (ii) the Trustee is holding
such Global Security pursuant to the Medium-Term
Note Certificate Agreement between the Trustee and
DTC.
H. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note
to the participant accounts of the Participants
with respect to such Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of such Agent for
any amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" above will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
J. The Trustee will credit to an account of the
Issuer designated from time to time by the Issuer
to the Trustee funds available for immediate use
in the amount transferred to the Trustee in
accordance with Settlement Procedure "G" above.
K. The Trustee will retain the Global Security
representing such Note and will send a photocopy
thereof to the Issuer by first-class mail.
Monthly, the Trustee will send to the Issuer a
written statement, setting forth (i) the principal
amount of Notes Outstanding under the Indenture as
of the date of such report, (ii) a brief
description of any sales of which the Issuer has
advised the Trustee but which have not yet been
settled and (iii) a description of issuances and
retirements of, payments on and other activity
relating to
13
the Notes during the related month.
L. Such Agent will confirm the purchase of such Note
to the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institution delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by an Agent,
Timetable: as agent, and accepted by the Issuer for settlement on
the first Business Day after the sale date, Settlement
Procedures "A" through "L" above shall be completed as
soon as possible but not later than the respective
times (New York City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the 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 sale date
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-L 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedure "A" shall be
completed as soon as practicable but no later than
11:00 a.m. on the first Business Day after the sale
date and Settlement Procedures "B" and "C" shall be
completed as soon as practicable but no later than
12:00 noon and 2:00 p.m., respectively, on the first
Business Day after the sale date. 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 second Business Day before
the settlement date. Settlement Procedures "D" through
"L" shall be completed as soon as possible thereafter
but not later than the respective times (New York City
time) set forth in the preceding table, except that
Settlement Procedures "I" through "L" are subject to
extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in
the SDFS operating procedures in effect on the
settlement date.
14
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on
the Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure "G," the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such 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 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 mark such Global
Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global
Security to the Issuer. The CUSIP number assigned to
such Global Security shall, in accordance with CUSIP
Service Bureau customary procedures, be cancelled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the Trustee will exchange the Global Security for two
Global Securities, one of which shall represent such
Book-Entry Note or Notes for which such withdrawal
message has been processed and shall be cancelled
immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not
timely paid to the applicable Participants with respect
to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such Participants
and, in turn, the Agent for such Note may enter SDFS
deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to
Settlement Procedures "H" and "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 default by the
applicable Agent in the performance of its obligations
hereunder or under the Distribution Agreement, the
Issuer will reimburse such Agent on an equitable basis
for its loss of the use of funds during the period when
the
15
funds were credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
such actions as it deems appropriate in accordance with
its SDFS operating procedures then in effect in order
to reverse the orders entered into DTC's Participant
Terminal System pursuant to Settlement Procedures "H"
and "G," respectively. 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 Procedures "D" and "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.
Procedure for Postings: The Issuer will periodically contact one or more Agents
for recommended interest rates, coupons or spreads
("postings") with respect to Notes being offered. When
the Issuer has determined or changed its postings with
respect to Notes being offered, it will promptly advise
the Agents. At such times as the Issuer is not posting,
the Agents will not solicit firm offers but may record
"indications of interest" only.
Pricing Supplements: Within five Business Days after any sale of Notes, the
Issuer will file or transmit for filing with the
Securities and Exchange Commission (the "Commission"),
in compliance with Rule 424(b)(3) of the rules and
regulations of the Commission promulgated under the
Securities Act of 1933, as amended, and Item 309 of
Regulation S-T of the Commission, a copy of a pricing
supplement to the Prospectus (as defined in the
Distribution Agreement) relating to such Notes that
reflects the applicable interest rates and other terms
(the "Pricing Supplement") and will deliver a copy of
such Pricing Supplement to each of the Agents.
Suspension of The Issuer may instruct the Agents to suspend
Solicitation, solicitation of purchases of Book-Entry Notes at any
Amendment or time. Upon receipt of such instructions, each Agent
Supplement: will forthwith suspend such solicitations until such
time as it has been advised by the Issuer that such
solicitations may be resumed. The Issuer will,
consistent with its obligations under the Distribution
Agreement, promptly advise each Agent and the Trustee
whether orders outstanding at the time such Agent
suspends solicitation 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 Issuer will have the
sole responsibility for such decision and for
16
any arrangements that may be made in the event that the
Issuer determines that such orders may not be settled
or that copies of such Prospectus and Pricing
Supplement may not be so delivered.
Delivery of Prospectus: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any, must be provided
to a purchaser by the applicable Agent prior to or at
the time of the earlier of (a) the written confirmation
of a sale sent to a purchaser of Book-Entry Notes or
his Agent, and (b) the date of settlement of any such
Book-Entry Notes (see Settlement Procedures).
Advertising Costs: The Issuer will determine with the Agents the amount
and nature of advertising that may be appropriate in
offering the Notes. Advertising expenses approved in
writing by the Issuer in connection with the
solicitation of purchases of the Notes from the Issuer
will be paid by the Issuer.
17
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Security Registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear interest from the later of
the Original Issue Date specified therein or from the
most recent Interest Payment Date with respect to such
Certificated Note (or Predecessor Security) to which
interest has been paid or duly provided for (such later
date being herein referred to as a "Certificated
Interest Accrual Date").
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and Exchanges: A Certificated Note may be presented for transfer or
exchange at the Corporate Trust Office of the Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical Terms but different
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 from the settlement date for such
Note.
Denominations: Certificated Notes will be issued in denominations of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000 unless otherwise specified
in the applicable Certificated Notes.
Interest: General. Interest on each Certificated Note will accrue
from the Certificated Interest Accrual Date of such
Note. In the case of a Certificated Note originally
issued between a Regular Record Date and the related
Interest Payment Date or on an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next Regular Record Date.
Each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest
Payment Date or Maturity. See "Calculation of Interest"
below. Interest will be payable to the Person in whose
name a Certificated Note is registered on the Security
Register at the close of business on the Regular Record
Date next preceding the applicable Interest Payment
Date; provided, however, interest payable at Maturity
will be payable to the Person to whom principal of such
Certificated
18
Note is payable.
Regular Record Date. Unless otherwise specified in the
applicable Certificated Note, the Regular Record Date
with respect to Fixed Rate Certificated Notes shall be
the April 30 or October 31, as the case may be, next
preceding the applicable Interest Payment Date. The
Regular Record Date with respect to any Interest
Payment Date for Floating Rate Certificated Notes shall
be the fifteenth day (whether or not a Business Day)
next preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Certificated Note, interest
payments on Fixed Rate Certificated Notes will be made
semiannually on May 15 and November 15 of each year and
at Maturity, subject to the exceptions specified in
"Payments of Principal and Interest" below.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semiannually or annually of each
year, as specified in the related Note, and at
maturity. Unless otherwise specified in the applicable
Certificated Note and subject to the exceptions
specified in "Payments of Principal and Interest"
below, interest will be payable, in the case of
Floating Rate Certificated Notes which reset (i) daily,
weekly or monthly, on the third Wednesday of each month
or on the third Wednesday of March, June, September and
December of each year, as specified in the applicable
Certificated Note; (ii) quarterly, on the third
Wednesday of March, June, September and December of
each year; (iii) semiannually, on the third Wednesday
of each of the two months specified in the applicable
Certificated Note; and (iv) annually, on the third
Wednesday of the month specified in the applicable
Certificated Note and, in each case, at Maturity.
Calculation of Fixed Rate Certificated Notes. Unless otherwise
Interest: specified in the applicable Certificated Note,
interest on Fixed Rate Certificated Notes (including
interest for partial periods) will be calculated on the
basis of a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined as
set forth in the applicable Notes. The Issuer and the
Trustee will confirm the amount of the initial interest
payment due on any Floating Rate Certificated Note for
which the initial Interest Period is
19
shorter or longer than the Index Maturity. Promptly
after each Interest Determination Date for Floating
Rate Certificated Notes, the Calculation Agent will
notify Standard & Poor's Corporation of the interest
rates determined on such Interest Determination Date.
Unless otherwise specified in the applicable
Certificated Note, interest will be calculated in the
case of (a) CD Rate, Commercial Paper Rate, Eleventh
District Cost of Funds Rate, Federal Funds Rate, LIBOR
and Prime Rate Certificated Notes, on the basis of the
actual number of days in the interest period and a 360-
day year; and (b) CMT Rate or Treasury Rate Notes, on
the basis of the actual number of days in the interest
period and the actual number of days in the year.
Payments of Principal The Trustee will pay the principal amount of each
and Interest: Certificated Note at Maturity to the Person in whose
name such Note is registered upon presentation of such
Note to the Trustee. Such payment, together with
payment of interest due at Maturity of such Note, will
be made in funds available for immediate use by the
holder of such Note. Certificated Notes presented to
the Trustee at Maturity for payment will be cancelled
by the Trustee in accordance with the terms of the
Indenture and returned to the Issuer. All interest
payments on a Certificated Note (other than interest
due at Maturity) will be made by check drawn on the
Trustee (or another Person appointed by the Trustee)
and mailed by the Trustee to the Person entitled
thereto as provided in such Note; provided, however,
that the holder of $10,000,000 or more of Certificated
Notes paying interest on the same Interest Payment Date
will be entitled to receive payment by wire transfer
but only if appropriate payment instructions have been
received in writing by the Trustee not later than the
Regular Record Date or Special Record Date, as the case
may be, for such payment. Following each Regular Record
Date and Special Record Date, the Trustee will furnish
the Issuer with a list of interest payments to be made
on the following Interest Payment Date for each
Certificated Note and in total for all Certificated
Notes. Interest at Maturity will be payable to the
Person to whom the payment of principal is payable. The
Trustee will provide monthly to the Issuer lists of
principal and interest to be paid on Certificated Notes
maturing in the next month. The Trustee will be
responsible for determining the amount of withholding
taxes on interest paid on Certificated Notes
withholding such amount and obtaining appropriate
documentation regarding such withholding, as required
by applicable law. On the first
20
Business Day of each month, the Trustee will deliver to
the Issuer by facsimile transmission a written
statement, indicating the total principal amount of
Outstanding Certificated Notes for which it serves as
trustee as of the immediately preceding Business Day.
If any Interest Payment Date for a Fixed Rate
Certificated Note is scheduled to occur on a day that
is not a Business Day with respect to such Fixed Rate
Certificated Note, the payment due on such Interest
Payment Date will be made on the following day that is
a Business Day with respect to such Fixed Rate
Certificated Note, and no interest shall accrue on the
amount payable on such Interest Payment Date for the
period from and after such Interest Payment Date to
such following day that is a Business Day.
If any Interest Payment Date for a Floating Rate
Certificated Note is scheduled to occur on a day that
is not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date will
be the following day that is a Business Day with
respect to such Floating Rate Certificated Note;
provided, however, that in the case of a Floating Rate
Certificated Note which is a LIBOR Note, if such
following day that is a Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding day that is a
Business Day.
If any Interest Payment Date for a Floating Rate
Certificated Note is scheduled to occur on a day that
is not a Business Day with respect to such Floating
Rate Certificated Note, such Interest Payment Date will
be the following day that is a Business Day with
respect to such Floating Rate Certificated Note;
provided, however, that in the case of a Floating Rate
Certificated Note which is a LIBOR Note, if such
following day that is a Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding day that is a
Business Day.
Acceptance and The Issuer has the sole right to accept offers to
Rejection of Offers: purchase Certificated Notes and may reject any offer in
whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Certificated Notes received by it in whole or part.
Each Agent will advise the Issuer promptly by telephone
or facsimile transmission of all offers to purchase
Certificated Notes received by such Agent, other than
those rejected by it.
21
Settlement: The receipt by the Issuer of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the selling Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. Each offer accepted by the Issuer
will be settled on the third Business Day following
acceptance of such offer pursuant to the timetable for
settlement set forth below, unless the Issuer and the
purchaser agree to settlement on another day; provided,
however, that the Issuer will notify the Trustee at
least twenty-four hours prior to the time of
settlement.
Settlement Procedures: In the event of a purchase of Certificated Notes by one
or more of the Agents, as principal, appropriate
settlement details, if different from those set forth
below, will be set forth in an applicable Terms
Agreement to be entered into between such Agent or
Agents and the Issuer pursuant to the Distribution
Agreement.
Settlement Procedures with regard to each Certificated
Note sold by the Issuer through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Issuer by facsimile
transmission of the following settlement
information:
1. Whether the form of such Certificated Note is
the Form of Senior Definitive Fixed Rate
Registered Security, Form of Senior
Definitive Floating Rate Registered Security,
Form of Senior Definitive Discount Registered
Security, Form of Senior Definitive Zero
Coupon Registered Security, Form of
Subordinated Definitive Fixed Rate Registered
Security, Form of Subordinated Definitive
Floating Rate Registered Security, Form of
Subordinated Definitive Discount Registered
Security or Form of Subordinated Definitive
Zero Coupon Registered Security.
2. Name in which such Note is to be registered
(the "Registered Owner").
3. Address of the Registered Owner and address
for payment of principal and interest.
22
4. Taxpayer identification or Social Security
number of the Registered Owner (if
available).
5. Principal amount.
6. Stated Maturity.
7. Specified Currency (if other than U.S.
dollars).
8. If such Note is a Fixed Rate Note, the
interest rate.
If such Note is a Floating Rate Note, the
following:
a) Whether such Note is a Regular Floating
Rate Note, Inverse Floating Rate Note or
a Floating Rate/Fixed Rate Note;
b) Interest Rate Basis or Bases (or the
method of calculating the Interest Rate
Basis or Bases);
c) Initial Interest Rate, if any;
d) Spread and/or Spread Multiplier, if any;
e) Interest Reset Dates;
f) Optional Reset Dates, if any;
g) Interest Reset Period;
h) Interest Payment Dates;
i) Index Maturity;
j) Interest Payment Period;
k) Calculation Agent (if other than The
Bank of New York);
l) Exchange Rate Agent (if other than The
Bank of New York);
23
m) Maximum Interest Rate, if any;
n) Minimum Interest Rate, if any; and
o) Interest Determination Dates.
9. Optional Redemption Date(s), Initial
Redemption Percentage, Annual Redemption
Percentage Reduction and other redemption
provisions, if any.
10. Original Issue Date.
11. Issue Price.
12. Original Issue Discount, if any, and Yield to
Maturity, if applicable.
13. Agent's commission, determined as provided in
Section 2 of the Distribution Agreement
between the Issuer and such Agent.
14. Additional terms or provisions of such Note,
if any.
B. The Issuer will advise the Trustee by telephone
(confirmed in writing at any time on the same
date) or facsimile transmission of the information
set forth in Settlement Procedure "A" above and
the name of such Agent.
C. The Issuer will deliver (if not previously
delivered) to the Trustee a pre-printed four-ply
packet for such Note, which packet will contain
the following documents in forms that have been
approved by the Issuer, the Agents and the
Trustee:
1. Note with customer confirmation.
2. Stub One--For the Trustee.
3. Stub Two--For the Agent.
4. Stub Three--For the Issuer.
D. The Trustee will complete and authenticate such
Note and deliver it (with the confirmation) and
Stubs One and Two to such Agent, and such Agent
will
24
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 and evidence that
instructions have been given by such Agent for
payment to the account of the Issuer at the
Trustee, in funds available for immediate use, of
an amount equal to the price of such Note less
Agent's commission. In the event that the
instructions given by such Agent for payment to
the account of the Issuer are revoked, the Issuer
as promptly as possible wire transfer to the
account of such Agent an amount of immediately
available funds equal to the amount of such
payment and such Agent will return such Note to
the Trustee.
E. Such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will retain Stub One and will send
Stub Three to the Issuer by first-class mail.
Monthly, the Trustee will send to the Issuer a
written statement, setting forth (i) the principal
amount of the Notes Outstanding under the
Indenture as of the date of such report, (ii) a
brief description of any sales of which the Issuer
has advised the Trustee but which have not yet
been settled and (iii) a description of issuances
and retirements of, payments on and other activity
relating to the Notes during the related month.
Settlement Procedures For offers of Certificated Notes solicited by an Agent,
Timetable: as agent, and accepted by the Issuer, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York
City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 3:00 p.m. on day before settlement date
B 4:00 p.m. on day before settlement date
C-D 2:15 p.m. on settlement date
E 3:00 p.m. on settlement date
25
F 5:00 p.m. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the selling Agent
will notify the Issuer and the Trustee by telephone and
return such Note to the Trustee. Upon receipt of such
Note, the Issuer will immediately wire transfer to the
account of the Agent an amount equal to the amount
previously credited thereto in respect of such Note.
Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the day
following the settlement date. If the failure shall
have occurred for any reason other than a default by
the applicable Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, the Issuer will reimburse such Agent 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 Issuer. Immediately upon receipt of the
Certificated Note in respect of which such failure
occurred, the Trustee will mark such Note "cancelled,"
make appropriate entries in the Trustee's records and
send such cancelled Note to the Issuer.
Procedure for Postings: The Issuer will periodically contact one or more Agents
for recommended postings with respect to Certificated
Notes being offered. When the Issuer has determined or
changed its postings with respect to Certificated Notes
being offered, it will promptly advise the Agents. At
such times as the Issuer is not posting, the Agents
will not solicit firm offers but may record
"indications of interest" only.
Pricing Supplements: Within five Business Days after any sale of
Certificated Notes, the Issuer will file or transmit
for filing with the Commission in compliance with Rule
424(b)(3) of the rules and regulations of the
Commission promulgated under the Securities Act of
1933, as amended, and Item 309 of Regulation S-T of the
Commission, a copy of a Pricing Supplement to the
Prospectus relating to such Notes that reflects the
applicable interest rates and other terms and will
deliver a copy of such Pricing Supplement to each of
the Agents.
Suspension of The Issuer may instruct the Agents to suspend
Solicitation, solicitation of purchases of Certificated Notes at any
Amendment or time. Upon receipt of such instructions, each Agent
Supplement: will forthwith suspend such solicitations until such
time as it has been advised by the Issuer that such
solicitations may be resumed. The Issuer will,
consistent with its obligations under the Distribution
26
Agreement, promptly advise each Agent and the Trustee
whether orders outstanding at the time such Agent
suspends solicitation 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 Issuer will have the
sole responsibility for such decision and for any
arrangements that may be made in the event that the
Issuer determines that such orders may not be settled
or that copies of such Prospectus and Pricing
Supplement may not be so delivered.
Delivery of Prospectus: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any, must be provided
to a purchaser by the applicable Agent prior to or at
the time of the earlier of (a) the written confirmation
of a sale sent to a purchaser of Certificated Notes or
his agent and (b) the delivery of any such Certificated
Notes to a purchaser or his agent (see Settlement
Procedures).
Advertising Costs: The Issuer will determine with the Agents the amount
and nature of advertising that may be appropriate in
offering the Certificated Notes. Advertising expenses
approved in writing by the Issuer in connection with
the solicitation of purchases of Certificated Notes
from the Issuer will be paid by the Issuer.
27
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
OCCIDENTAL PETROLEUM CORPORATION
I, [name], [title] of Occidental Petroleum Corporation, a Delaware
corporation (the "Company"), pursuant to Section 5(c) of the Distribution
Agreement, dated April 21, 2005 (the "Distribution Agreement"), between the
Company and each of Banc of America Securities LLC, Citigroup Global Markets
Inc., Credit Suisse First Boston LLC, J.P. Morgan Securities Inc. and Morgan
Stanley & Co. Incorporated (collectively, the "Agents"), relating to the
offering from time to time by the Company directly or through or to the Agents
of up to U.S. $1,500,000,000 aggregate offering price of Medium-Term [Senior]
[Subordinated] Notes, Series [D] [A], of the Company, hereby certify on behalf
of the Company that:
1. Except as contemplated in the Prospectus (as defined in the
Distribution Agreement) or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document (as defined in the Distribution
Agreement), since the date of the most recent consolidated financial statements
included or incorporated by reference in the Prospectus, there has not been any
material adverse change, or any development which is reasonably likely to result
in a material adverse change, in the consolidated financial condition or
consolidated results of operations of the Company and its subsidiaries, taken as
a whole.
2. The representations and warranties of the Company contained in Section
1(a) of the Distribution Agreement (other than Section 1(a)(vi) thereof) are
true and correct in all material respects with the same force and effect as
though expressly made at and as of the date hereof;
3. The Company has complied with all agreements and satisfied all
conditions required by the Distribution Agreement or the appropriate Indenture
(as defined in the Distribution Agreement) on its part to be performed or
satisfied at or prior to the date hereof; and
4. No stop order suspending the effectiveness of the Registration
Statement (as defined in the Distribution Agreement) has been issued and, to the
best of my knowledge, no proceedings for that purpose have been initiated or
threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my name this ____________ day of
____________.
By:
------------------------------------------
Name:
Title:
APPENDIX II
FORM OF RELIANCE LETTER OF COUNSEL
[Date]
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Citigroup Global Markets Inc.
390 Greenwich Street, 4th Floor
New York, NY 10013
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010
J.P. Morgan Securities Inc. 270 Park Avenue, 8th Floor
New York, NY 10017
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Re: Occidental Petroleum Corporation Medium-Term [Senior]
[Subordinated] Notes, Series [D] [A]
Dear Ladies and Gentlemen:
I have delivered an opinion to you, dated April 21, 2005, as counsel to
Occidental Petroleum Corporation (the "Company"), pursuant to Section 5(a) of
the Distribution Agreement, dated April 21, 2005 (the "Distribution Agreement"),
between the Company and each of Banc of America Securities LLC, Citigroup Global
Markets Inc., Credit Suisse First Boston LLC, J.P. Morgan Securities Inc. and
Morgan Stanley & Co. Incorporated. You may continue to rely upon such opinion as
if it were dated as of this date, except that all statements and opinions
contained therein shall be deemed to relate to the Registration Statement and
Prospectus (as such terms are defined in the Distribution Agreement) as amended
and supplemented to this date.
This letter is delivered to you pursuant to Section 6(b) of the
Distribution Agreement.
Very truly yours,