OCCIDENTAL PETROLEUM CORPORATION
MEDIUM-TERM SENIOR NOTES, SERIES C
MEDIUM-TERM SUBORDINATED NOTES, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
June 30, 1999
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, New York 10010-3629
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10281-1218
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281-1310
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of Chase Securities Inc., Credit Suisse First
Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated 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 C (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
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trustee (the "Trustee"). 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 Officer's Certificate delivered from time to time
pursuant to Sections 201 and 301 of the Subordinated Indenture), dated as of
January 20, 1999 between the Company and the Trustee. 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. $1,000,000,000 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. 333-79541), and
pre-effective amendment no. 1 thereto 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 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,
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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 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 (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 Services, 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.
(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 "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
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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 Statement of Eligibility on Form T-1 under the 1939 Act (the
"Form 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, 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.
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(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 (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 as such enforceability may be 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) general principles of equity (regardless
of whether such enforcement is considered in a proceeding in equity or at
law), (C) 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 and (D) governmental authority to limit, delay
or prohibit the making of payments outside the United States or in a
foreign currency. 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 Corporation, a
California 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 properties and carry on its
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
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
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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 is a
party or by which it is bound 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 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
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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. 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, 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.
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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 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.
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(ii) With respect to the United Kingdom, each Agent, severally and not
jointly, represents and agrees that (A) it has not offered or sold and will
not offer or sell any 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 complied and will comply with all applicable provisions of
the Financial Services Act of 1986 (the "Financial Services Act") with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom and (C) it has only issued or passed
on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the Notes, other than any
document which consists of or any part of listing particulars,
supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Financial
Services Act, to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
(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 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 June 30, 1999 and will
obtain from each of such investors an acknowledgment in form 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
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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., Duff & Phelps 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 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
10
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 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
11
(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, 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;
(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 from time to time in connection with the transactions contemplated
hereby;
(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;
12
(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:
(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 effect
of general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), (C) requirements that a claim
with respect to any security authenticated
13
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, (D)
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
(E) 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. 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.
(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 effect of general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law), (C) 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, (D) governmental authority to
limit, delay or prohibit the making of payments outside of the United
States or in foreign currency or currency unit, and (E) 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)
14
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
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) 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) 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 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 as to 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, are in all material respects accurate summaries of
such provisions.
(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.
15
(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, any agreement or
instrument to which the Company is a party or by which it is bound and that
are, 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 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, the Rule 462(b) 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, nothing has come to such counsel's attention that leads 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
16
therein) as the case may be) or any Rule 462(b) Registration Statement at
the time such Rule 462(b) Registration Statement became effective,
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 the
Registration Statement, the Rule 462(b) Registration Statement or
Prospectus or with respect to the Form T-1.
(b) Opinion of Counsel for the Agents. On the date hereof, the Agents shall
have received an opinion from 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
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 1(a) hereof (other than
Section 1(a)(vi)) are true and correct in all material respects 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 public accountants, 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
17
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 a firm of independent public accountants, 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 public accountants 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.
(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 threatened or, to the knowledge of the Company or the Agents,
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
threatened or, to the knowledge of the Company or the Agents, 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.
18
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 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
19
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 (other than the matters covered by Section
5(a)(viii) to the extent it relates to the execution and delivery of this
Agreement), 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 public accountants, 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 public accountants may 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;
20
(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, 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
21
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 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, on the other hand, from the offering of the 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 of the 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
22
the Company, on the one hand, and the Agents, on the other hand, shall be deemed
to be in the same proportions as the total net proceeds from the sale of the
Notes (before deducting expenses) received by the Company, on the one hand, and
the total commissions or other compensation or remuneration received by each
Agent, on the other hand, bear to the total purchase price of the Notes as set
forth in the applicable Pricing Supplement. The relative fault of the Company,
on the one hand, and the Agents, 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 the Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Agents' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Notes they have purchased hereunder, and not
joint. Notwithstanding the provisions of this Section 8, no 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 Agent to the public
exceeds the amount of any damages that such 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 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
23
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 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 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
24
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 the Agents in care of Merrill Lynch & Co., 250 Vesey Street, New
York, New York 10281, Attn; Product Management - 15th Floor, phone: (212)
449-7476, facsimile: (212) 449-2234. Notices to the Company shall be directed to
it at 10889 Wilshire Boulevard, Los Angeles, California 90024, attention of Vice
President and Treasurer.
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.
25
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:
CHASE SECURITIES INC.
By: /s/ Peter Madonia
--------------------------------
Name: Peter Madonia
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie A. Keogh
--------------------------------
Name: Julie A. Keogh
Title: Authorized Signatory
LEHMAN BROTHERS INC.
By: /s/ Jeffrey L. Weiss
--------------------------------
Name: Jeffrey L. Weiss
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
--------------------------------
Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
--------------------------------
Name: Michael Fusco
Title: Vice President
26
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
Rates):
If LIBOR,
~ LIBOR Reuters Page:
~ LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If 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):
B-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.
B-2
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(the "Distribution Agreement"), between the Company and each of
[insert Agents] (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. $
aggregate offering price of Medium-Term [Senior] [Subordinated] Notes, Series [
], 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]
Re: Occidental Petroleum Corporation Medium-Term [Senior] [Subordinated]
Notes, Series [ ]
Dear Ladies and Gentlemen:
I have delivered an opinion to you, dated , as counsel to Occidental
Petroleum Corporation (the "Company"), pursuant to Section 5(a) of the
Distribution Agreement, dated (the "Distribution Agreement"), between the
Company and [insert Agents]. 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,