<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 1995
REGISTRATION NO. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
OCCIDENTAL PETROLEUM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
95-4035997
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 208-8800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DONALD P. DE BRIER, ESQ.
GENERAL COUNSEL
OCCIDENTAL PETROLEUM CORPORATION
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 443-6176
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
============================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE(2) OFFERING PRICE(2) FEE
- -------------------------------------------------------------------------------------------------
Debt Securities................ $750,000,000 100%(3) $750,000,000(3) $258,623
============================================================================================
(1) In United States dollars or the equivalent thereof in one or more foreign
currencies, composite currencies or currency units. If any of these
securities are issued at a discount from their principal amount, the
principal amount will be increased such that the aggregate offering price
will equal $750,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Exclusive of accrued interest, if any.
</TABLE>
------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
===============================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 17, 1995
PROSPECTUS
OCCIDENTAL PETROLEUM CORPORATION
(LOGO)
SENIOR DEBT SECURITIES
------------------------
Occidental Petroleum Corporation ("Occidental") may offer from time to time
pursuant to this Prospectus its senior unsecured debt securities consisting of
notes, debentures or other evidences of indebtedness (the "Debt Securities").
The Debt Securities will be limited to $750,000,000 aggregate public offering
price (or, if applicable, the equivalent thereof in any foreign currency or
composite currency or currency unit, based on the applicable exchange rate in
effect at the time of the sale of such Debt Securities). The Debt Securities may
be offered as a single series or as two or more separate series in amounts, at
prices and on terms to be determined in light of market conditions at the time
of sale and to be set forth in one or more Prospectus Supplements.
The terms of each series of Debt Securities, including, where applicable,
the specific designation, the aggregate principal amount, the authorized
denominations, the maturity, the rate or rates and the time or times of payment
of any interest, any terms for optional or mandatory redemption or payment of
additional amounts or any sinking fund provisions, the initial public offering
price, the proceeds to Occidental and any other specific terms in connection
with the offering and sale of such series will be set forth in one or more
Prospectus Supplements. As used herein, Debt Securities shall include securities
denominated in United States dollars or, at the option of Occidental if so
specified in an applicable Prospectus Supplement, in any other currency or in
composite currencies or currency units or in amounts determined by reference to
an index. This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The Debt Securities may be sold to or through one or more underwriters or
dealers, directly by Occidental, or through one or more agents designated from
time to time. See "Plan of Distribution." If any underwriter or agent of
Occidental is involved in the sale of any Debt Securities in respect of which
this Prospectus is being delivered, the name of such underwriter or agent and
any applicable commission or discount will be set forth in a Prospectus
Supplement. The net proceeds to Occidental from such sale also will be set forth
in such Prospectus Supplement.
The Debt Securities may be issued in registered form or bearer form or
both. Debt Securities issued in bearer form may be offered only to non-United
States persons and to offices located outside the United States of certain
United States financial institutions. If the Debt Securities of any series are
issuable in bearer form, certain limitations on such issuance will be set forth
in an applicable Prospectus Supplement.
For a discussion of certain United States Federal income tax consequences
to holders of Debt Securities, see "United States Taxation."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1995.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY OCCIDENTAL
OR ANY UNDERWRITER OR AGENT. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS
SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
Occidental has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with the Securities and Exchange Commission (the
"Commission") with respect to the Debt Securities. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
items of which are omitted in accordance with the rules and regulations of the
Commission. For further information regarding the Debt Securities offered
hereby, reference is made to the Registration Statement and exhibits thereto,
which may be inspected without charge at the offices of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and copies of which may be obtained
from the Commission at prescribed rates.
Occidental is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information may be
inspected at, and, upon payment of the Commission's customary charges, copies
may be obtained from, the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and should also be available for inspection and copying at the
regional offices of the Commission located at 7 World Trade Center, 13th Floor,
New York, New York 10048 and Suite 1400, Citicorp Center, 500 West Madison
Street, Chicago, Illinois 60661. Copies of such materials can also be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material should also be
available for inspection at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York and the Pacific Stock Exchange, 115 Sansome Street,
Suite 1104, San Francisco, California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Occidental with the
Commission, are hereby incorporated by reference in this Prospectus:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1994;
(ii) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1995; and
(iii) Current Reports on Form 8-K, dated January 25, 1995 and April
20, 1995.
All documents filed by Occidental pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Occidental will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any documents incorporated by reference
herein, except for exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Occidental Petroleum Corporation, 10889 Wilshire Boulevard, Los
Angeles, California 90024, Attention: Fred J. Gruberth, Vice President and
Treasurer (telephone (310) 208-8800).
------------------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars" or "U.S.$").
2
<PAGE> 4
OCCIDENTAL PETROLEUM CORPORATION
Occidental, a Delaware corporation, explores for, develops, produces and
markets crude oil and natural gas; engages in interstate and intrastate natural
gas transmission and marketing; and manufactures and markets a variety of basic
chemicals, petrochemicals and polymers and plastics. Occidental conducts its
principal operations through three subsidiaries: Occidental Oil and Gas
Corporation, MidCon Corp. and Occidental Chemical Corporation. Occidental's
executive offices are located at 10889 Wilshire Boulevard, Los Angeles,
California 90024; telephone (310) 208-8800.
USE OF PROCEEDS
Unless otherwise indicated in an applicable Prospectus Supplement,
Occidental intends to use the net proceeds from the sale of the Debt Securities
for general corporate purposes, primarily the retirement of outstanding
indebtedness.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are Occidental's total enterprise ratios of earnings to fixed
charges for each of the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
- ------------------- ------------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
- ---- ------ ------ ---- ---- ---- ------
<S> <C> <C> <C> <C> <C> <C>
2.7 --(a) --(b) 1.41 1.30 1.70 --(c)
---------------
(a) For the three months ended March 31, 1994, earnings were inadequate to cover
fixed charges by $58 million.
(b) For the year ended December 31, 1994, earnings were inadequate to cover
fixed charges by $1 million.
(c) For the year ended December 31, 1990, earnings were inadequate to cover
fixed charges by $1.547 billion.
</TABLE>
Earnings are based on Occidental's consolidated income from continuing
operations, before taxes on income (other than foreign oil and gas taxes) and
before fixed charges. Fixed charges consist of interest and debt expense,
including the proportionate share of interest and debt expense of
50-percent-owned equity investments, the portion of lease rentals representative
of the interest factor and preferred dividends to minority stockholders of
subsidiaries adjusted to a pretax basis.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent
to which such general provisions may apply to the Offered Securities will be
described in a Prospectus Supplement relating to such Offered Securities.
The Debt Securities will be issued under an Indenture, to be dated as of
May 1, 1995 (the "Indenture"), between Occidental and The Bank of New York, as
trustee (the "Trustee"). The terms of the Debt Securities include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and holders of
the Debt Securities are referred to the Indenture and the Trust Indenture Act
for a statement thereof. The following summary of certain provisions of the Debt
Securities and of the Indenture does not purport to be complete and is qualified
in its entirety by reference to the Indenture, the proposed form of which has
been filed as an exhibit to the Registration Statement of which this Prospectus
is a part. Capitalized terms used but not defined herein have the meanings given
to them in the Indenture. The term "Securities," as used under this caption,
refers to all securities issued or issuable from time to time under the
Indenture and includes the Debt Securities.
3
<PAGE> 5
GENERAL
The Indenture will not limit the aggregate principal amount of Securities
that may be issued thereunder, and Securities may be issued thereunder from time
to time as a single series or in two or more separate series. As of the date of
this Prospectus, Occidental has authorized the issuance under the Indenture of
up to $750,000,000 aggregate public offering price of the Debt Securities, none
of which was outstanding as of the date of this Prospectus. The Indenture will
not limit the ability of Occidental or its subsidiaries to incur additional
unsecured indebtedness.
The Securities will be senior unsecured obligations of Occidental. However,
substantially all of Occidental's operations are conducted through subsidiaries,
and any right of Occidental to receive assets of any of its subsidiaries upon
the liquidation or recapitalization of any such subsidiary (and the consequent
right of Holders of the Securities to participate in those assets) will be
subject to the claims of such subsidiary's creditors, except to the extent that
Occidental is itself recognized as a creditor of such subsidiary. Even in the
event Occidental is recognized as a creditor of a subsidiary, Occidental's
claims would still be subject to any security interests in the assets of such
subsidiary and any indebtedness or other liability of such subsidiary senior to
Occidental's claims. Accordingly, by operation of the foregoing principles, the
Securities will be effectively subordinated to all indebtedness and other
liabilities, including trade accounts payable, of Occidental's subsidiaries. As
of March 31, 1995, the total amount of indebtedness and other liabilities of
such subsidiaries that would have been senior to the Holders' rights under the
Securities within the meaning of the two preceding sentences was approximately
$3.3 billion (excluding interest).
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for a description of the specific terms of the Offered Securities to
which such Prospectus Supplement relates, including, without limitation: (i) the
title of the Offered Securities; (ii) any limit on the aggregate principal
amount of the Offered Securities; (iii) whether the Offered Securities are to be
issuable as Registered Securities, Bearer Securities or both, whether the
Offered Securities may be represented by a Security in temporary or definitive
global form, and, if so, the initial Depositary with respect to such temporary
or definitive global Security, and, if other than as provided in Section 304 or
Section 305 of the Indenture, as applicable, whether, and the circumstances
under which, beneficial owners of interests in any such temporary or definitive
global Security may exchange such interests for Securities of such series of
like tenor and of any authorized form and denomination; (iv) the price or prices
(expressed as a percentage of the aggregate principal amount thereof) at which
the Offered Securities will be issued; (v) the date or dates on which the
principal of the Offered Securities is payable or the method of determination
thereof; (vi) the rate or rates (which may be fixed or variable) at which the
Offered Securities will bear interest, if any, or the method of calculating such
rate or rates and the date or dates from which such interest, if any, will
accrue; (vii) the Interest Payment Dates on which such interest, if any, on the
Offered Securities will be payable and the Regular Record Date for any interest
payable on any Offered Securities that are Registered Securities on any Interest
Payment Date; (viii) the person to whom any interest will be payable on any
Offered Security that is a Registered Security, if other than the person in
whose name the Offered Security is registered at the close of business on the
Regular Record Date for the payment of such interest; (ix) the manner in which,
or the person to whom, any interest on any Offered Security that is a Bearer
Security will be payable, if other than upon presentation and surrender of the
coupons appertaining thereto, and the extent to which, or the manner in which,
any interest payable on a temporary or definitive global Security on an Interest
Payment Date will be paid; (x) any mandatory or optional sinking fund or
analogous provisions and any provisions for the remarketing of the Offered
Securities; (xi) each office or agency where, subject to the terms of the
Indenture as described below under "Payment and Paying Agents," the principal of
and interest, if any, on the Offered Securities will be payable and each office
or agency where, subject to the terms of the Indenture as described below under
"Form, Exchange, Registration and Transfer," the Offered Securities may be
presented for exchange and Offered Securities that are Registered Securities may
be presented for registration of transfer; (xii) the date, if any, after or on
which, and the price or prices at which, the Offered Securities may, pursuant to
any optional or mandatory redemption provisions, be redeemed, in whole or in
part, and the other detailed terms and provisions of any such optional or
mandatory redemption provisions; (xiii) the denominations in which any Offered
Securities that are Registered Securities will be issuable, if other than the
denomination of $1,000 and any integral multiple thereof, and the denominations
in which any Offered Securities that are Bearer
4
<PAGE> 6
Securities will be issuable, if other than denominations of $5,000 and $100,000;
(xiv) the currency or currencies, including composite currencies or currency
units, for which the Offered Securities may be purchased or in which the Offered
Securities may be denominated, and/or the currency or currencies, including
composite currencies or currency units, for the payment of principal of and
interest, if any, on the Offered Securities, if other than U.S. dollars, and, if
other than U.S. dollars, whether the Offered Securities may be satisfied and
discharged other than as provided in Article Four of the Indenture; (xv) if the
amounts of payments of principal of and interest, if any, on the Offered
Securities are to be determined by reference to an index, formula or other
method, or based on a coin or currency other than that in which the Offered
Securities are stated to be payable, the manner in which such amounts shall be
determined and the calculation agent, if any, with respect thereto; (xvi) if
other than the principal amount thereof, the portion of the principal amount of
the Offered Securities that will be payable upon declaration of acceleration of
the Maturity thereof pursuant to an Event of Default; (xvii) if other than as
defined in the Indenture, the meaning of "Business Day" when used with respect
to the Offered Securities; (xviii) if the Offered Securities may be issued or
delivered (whether upon original issuance or upon exchange of a temporary
Security of such series or otherwise), or any instalment of principal or
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those specified in
the Indenture, the forms and terms of such certificates, documents or
conditions; (xix) any addition to, or modification or deletion of, any Event of
Default or any covenant of Occidental specified in the Indenture with respect to
the Offered Securities; and (xx) any other terms of the Offered Securities not
inconsistent with the provisions of the Indenture. Any such Prospectus
Supplement also will describe any special provisions for the payment of
additional amounts with respect to the Offered Securities. The variable terms of
the Securities are subject to change from time to time, but no such change will
affect any Security already issued or as to which an offer to purchase has been
accepted by Occidental.
Securities may be issued as Discount Securities, which may be sold at a
discount below their principal amount. Special United States Federal income tax
considerations applicable to Securities issued at an original issue discount,
including Discount Securities, are described generally under "United States
Taxation -- Original Issue Discount" and may be described in more detail in any
applicable Prospectus Supplement. Special United States Federal tax
considerations and other restrictions or terms applicable to any Offered
Securities that are (i) issuable in bearer form, (ii) offered exclusively to
United States Aliens (as defined in the Indenture) or (iii) denominated in a
currency other than United States dollars will be set forth in a Prospectus
Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The Securities of a series may be issued solely as Registered Securities,
solely as Bearer Securities (with or without coupons attached) or as both
Registered Securities and Bearer Securities. Securities of a series may be
issuable in whole or part in the form of one or more global Securities, as
described below under "Global Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Securities of any
series are issuable as both Registered Securities and as Bearer Securities, at
the option of the Holder, subject to the terms of the Indenture, Bearer
Securities (accompanied by all unmatured coupons, except as provided below, and
all matured coupons in default) of such series will be exchangeable for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. Unless otherwise indicated in an
applicable Prospectus Supplement, any Bearer Security surrendered in exchange
for a Registered Security between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest will be surrendered without the
coupon relating to such date for payment of interest and such interest will not
be payable in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the terms of the Indenture. Bearer Securities will not be
issued in exchange for Registered Securities.
Securities may be presented for exchange as provided above, and, unless
otherwise indicated in an applicable Prospectus Supplement, Registered
Securities may be presented for registration of transfer (duly
5
<PAGE> 7
endorsed or accompanied by a duly executed written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by Occidental for such purpose with respect to any series of
Securities and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the Indenture. Such exchange or transfer, as the case may be, will
be effected upon the Security Registrar or such transfer agent, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. Occidental has initially appointed the Trustee as Security
Registrar. If a Prospectus Supplement refers to any transfer agent (in addition
to the Security Registrar) designated by Occidental with respect to any series
of Securities, Occidental may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that, if Securities of a series are issuable only as
Registered Securities, Occidental will be required to maintain a transfer agent
in each Place of Payment for such series, and, if Securities of a series are
issuable as Bearer Securities, Occidental will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. Occidental may at any time
designate additional transfer agents with respect to any series of Securities.
In the event of any partial redemption of Securities of any series,
Occidental will not be required to (i) issue, register the transfer of or
exchange Securities of that series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (a) if Securities of the series
are issuable only as Registered Securities, the day of mailing of the relevant
notice of redemption and (b) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption; (ii) register the transfer of or exchange any Registered Security,
or portion thereof, called for redemption, except the unredeemed portion of any
Registered Security being redeemed in part; or (iii) exchange any Bearer
Security called for redemption, except to exchange such Bearer Security for a
Registered Security of that series and of like tenor and principal amount that
is immediately surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest, if any, on Registered Securities will be made at
the office of such Paying Agent or Paying Agents as Occidental may designate
from time to time, except that, at the option of Occidental, payment of any
interest may be made (i) by check mailed to the address of the Person entitled
thereto, as such address shall appear in the Security Register, or (ii) by wire
transfer to an account maintained by the Person entitled thereto, as specified
in the Security Register. Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any instalment of interest on a Registered Security will
be made to the Person in whose name such Registered Security is registered at
the close of business on the Regular Record Date for such interest instalment.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and interest, if any, on Bearer Securities will be made, subject
to any applicable laws and regulations, at the offices of such Paying Agent or
Paying Agents outside the United States as Occidental may designate from time to
time, or by check or by transfer to an account maintained by the payee outside
the United States. Unless otherwise indicated in an applicable Prospectus
Supplement, any payment of an instalment of interest on any Bearer Security will
be made only against surrender of the coupon relating to such interest
instalment.
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee, acting through its Corporate Trust Office, will be designated as
Occidental's sole Paying Agent for payments with respect to Securities that are
issuable solely as Registered Securities and as Occidental's Paying Agent in the
Borough of Manhattan, The City of New York, for payments with respect to
Securities (subject to any limitations described in any applicable Prospectus
Supplement) that are issuable as Bearer Securities. Any Paying Agent outside the
United States and any other Paying Agent in the United States initially
designated by Occidental for the Offered Securities will be named in an
applicable Prospectus Supplement. Occidental may at any time designate one or
more additional Paying Agents or rescind the designation of any Paying Agent or
approve a
6
<PAGE> 8
change in the office through which any Paying Agent acts, except that, if
Securities of a series are issuable only as Registered Securities, Occidental
will be required to maintain a Paying Agent in each Place of Payment for such
series, and, if Securities of a series are issuable as Bearer Securities,
Occidental will be required to maintain (i) a Paying Agent in the Borough of
Manhattan, The City of New York, for payments with respect to any Registered
Securities of the series (and for payments with respect to Bearer Securities of
the series in the circumstances described in the Indenture, but not otherwise)
and (ii) a Paying Agent in a Place of Payment located outside the United States
where Securities of such series and any related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of such
series are listed on The London Stock Exchange or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, Occidental will maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, for the Securities of such series.
All moneys paid by Occidental to a Paying Agent for the payment of
principal of or interest, if any, on any Security that remain unclaimed at the
end of two years after such principal or interest shall have become due and
payable will be repaid to Occidental, and the Holder of such Security or any
coupon will thereafter look only to Occidental for payment thereof.
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in global
form. A Security in global form will be deposited with, or on behalf of, a
Depositary, which will be identified in an applicable Prospectus Supplement. A
global Security may be issued in either registered or bearer form and in either
temporary or definitive form. A Security in global form may not be transferred,
except as a whole, by the Depositary for such Security to a nominee of such
Depositary, or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary, or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor. If any Securities
of a series are issuable in global form, the applicable Prospectus Supplement
will describe the circumstances, if any, under which beneficial owners of
interests in any such global Security may exchange such interests for definitive
Securities of such series and of like tenor and principal amount in any
authorized form and denomination, the manner of payment of principal of and
interest, if any, on any such global Security and the specific terms of the
depositary arrangement with respect to any such global Security.
CERTAIN COVENANTS OF OCCIDENTAL
Limitation on Liens. Occidental will not, nor will it permit any
Consolidated Subsidiary (as defined below) to, incur, create, assume, guarantee
or otherwise become liable with respect to any Secured Debt (as defined below),
unless the Securities are secured equally and ratably with (or prior to) such
Secured Debt. This covenant will not apply to: (i) Liens (as defined below)
existing on the date of the Indenture; (ii) Liens existing on property of, or on
any shares of stock or Indebtedness of, any corporation at the time such
corporation becomes a Consolidated Subsidiary; (iii) Liens in favor of
Occidental or a Consolidated Subsidiary; (iv) Liens in favor of governmental
bodies to secure progress, advance or other payments; (v) Liens existing on
property, shares of stock or Indebtedness at the time of acquisition thereof
(including acquisition through merger or consolidation) or Liens to secure the
payment of all or any part of the purchase price thereof or the cost of
construction, installation, renovation, improvement or development thereon or
thereof or to secure any Indebtedness incurred prior to, at the time of, or
within 360 days after the later of the acquisition, completion of such
construction, installation, renovation, improvement or development or the
commencement of full operation of such property or within 360 days after the
acquisition of such shares or Indebtedness for the purpose of financing all or
any part of the purchase price or cost thereof; and (vi) any extension, renewal
or refunding of any Liens referred to in the foregoing clauses (i) through (v).
Notwithstanding the foregoing, Occidental and one or more Consolidated
Subsidiaries may incur, create, assume, guarantee or otherwise become liable
with respect to Secured Debt that would otherwise be subject to the foregoing
restrictions if, after giving effect thereto, the aggregate amount of such
Secured Debt, together with the aggregate amount of all other such Secured Debt
of Occidental and its Consolidated Subsidiaries
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then outstanding, plus the Discounted Rental Value (as defined below) in respect
of sale and leaseback transactions subject to the restrictions discussed in the
following paragraph, would not exceed 10% of consolidated Net Tangible Assets
(as defined below).
Limitation on Sale and Leaseback Transactions. Occidental will not nor will
it permit any Consolidated Subsidiary to sell and lease back any Principal
Domestic Property (as defined below) unless: (i) the transaction is one in which
the sale has occurred within 360 days after the later of the acquisition,
completion of construction or commencement of full operations of the Principal
Domestic Property; (ii) Occidental or such Consolidated Subsidiary could subject
such Principal Domestic Property to a Lien pursuant to the provisions described
above under "Limitation on Liens" in an amount equal to the Discounted Rental
Value with respect to the sale and leaseback transaction without equally and
ratably securing the Securities; or (iii) Occidental, within 120 days after such
sale, applies or causes to be applied to the retirement of its Funded Debt (as
defined below) an amount (subject to credits for certain voluntary retirements
of Funded Debt) not less than the greater of (a) the net proceeds of the sale of
the Principal Domestic Property leased pursuant to such arrangement or (b) the
fair value of the Principal Domestic Property so leased. This restriction will
not apply to any sale and leaseback transaction (i) between Occidental and a
Consolidated Subsidiary or between Consolidated Subsidiaries or (ii) involving
the taking back of a lease for a period, including renewals, of not more than
three years.
Other than the limitations in the Indenture on Liens and sale and leaseback
transactions described above, the provisions of the Indenture do not afford
Holders of the Debt Securities protection in the event of a highly leveraged
transaction, reorganization, restructuring, change in control, merger or similar
transaction involving Occidental that may adversely affect Holders of the Debt
Securities.
CERTAIN DEFINITIONS
"Consolidated Subsidiary" means any Subsidiary included in the financial
statements of Occidental and its Subsidiaries prepared on a consolidated basis
in accordance with generally accepted accounting principles.
"Discounted Rental Value" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent (after deducting the amount of
rent to be received by such Person under noncancelable subleases) required to be
paid by such Person under such lease during the remaining noncancelable term
thereof (including any such period for which such lease has been extended or
may, at the option of the lessor, be extended), discounted from the respective
due dates thereof to such date at a rate per annum of 11 3/4%. The net amount of
rent required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period,
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, water rates and similar charges. In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated. If and to the extent the amount of any rent
during any future period is not definitely determinable under the lease in
question, the amount of such rent shall be estimated in such reasonable manner
as the Board of Directors of Occidental may in good faith determine.
"Funded Debt" means all Indebtedness maturing one year or more from the
date of the creation thereof, all Indebtedness directly or indirectly renewable
or extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the creation thereof, and all Indebtedness under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more, even though such Indebtedness may also conform to
the definition of Short-Term Borrowing.
"Lien" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar encumbrance
to secure Indebtedness for borrowed money but excluding any security interest
which a lessor may be deemed to have under a lease and any lien which may be
deemed to exist under a Production Payment or under any subordination
arrangement. "Production Payment" means any economic interest in oil, gas or
mineral reserves which (i) entitles the holder thereof to a specified share of
future production from such reserves, free of the costs and expenses of such
production and (ii) terminates
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when a specified quantity of such share of future production from such reserves
has been delivered or a specified sum has been realized from the sale of such
share of future production from such reserves.
"Net Tangible Assets" of any specified Person means the total of all assets
properly appearing on a balance sheet of such Person prepared in accordance with
generally accepted accounting principles, after deducting from such total,
without duplication of deductions, (i) all Current Liabilities of such Person;
(ii) that portion of the book amount of all such assets which would be treated
as intangibles under generally accepted accounting principles, including,
without limitation, all such items as goodwill, trademarks, trade names, brands,
copyrights, patents, licenses and rights with respect to the foregoing and
unamortized debt discount and expense; and (iii) the amount, if any, at which
any stock of such Person appears on the asset side of such balance sheet.
"Principal Domestic Property" means any (i) developed oil or gas producing
property, (ii) mining property, (iii) processing or manufacturing plant, or (iv)
natural gas transmission facility which as of the date of the Indenture is or
thereafter is owned or leased by Occidental or any Consolidated Subsidiary and
which is located in the continental United States (provided, however, that any
such property, plant or facility declared by the Board of Directors by Board
Resolution not to be of material importance to the business of Occidental and
its Consolidated Subsidiaries taken as a whole will be excluded from the
foregoing definition).
"Secured Debt" means any Indebtedness of Occidental or any Consolidated
Subsidiary, secured by a Lien on any Principal Domestic Property or on any
shares of stock or on any Indebtedness of any Consolidated Subsidiary which owns
any Principal Domestic Property.
MERGER AND CONSOLIDATION
Occidental may consolidate with or merge into any other corporation, and
Occidental may convey, transfer or lease its properties and assets substantially
as an entirety to any Person, provided that: (i) the corporation formed by such
consolidation or into which Occidental is merged, or the Person that acquires by
conveyance or transfer or which leases the properties and assets of Occidental
substantially as an entirety, shall be organized and existing under the laws of
the United States, any State thereof or the District of Columbia and shall
expressly assume the payment of the principal of and interest on the Securities
and the performance of every covenant of the Indenture on the part of Occidental
to be performed or observed; and (ii) after giving effect to such transaction,
no Event of Default (as described below), and no event which, after notice or
lapse of time, or both, would become an Event of Default, shall have happened
and be continuing.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to
each series of Securities individually: (i) default in the payment of any
instalment of interest on any Security of such series when due, continued for 30
days; or (ii) default in the payment of the principal of any Security of such
series when due; or (iii) default in the performance, or breach, of any other
Indenture covenant or warranty of Occidental (other than a covenant or warranty
that is solely for the benefit of other series of the Securities), continued for
60 days after written notice by the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Securities of such series; or (iv)
acceleration of any indebtedness for money borrowed by Occidental under the
terms of the instrument under which such indebtedness is or may be outstanding,
if such indebtedness is not discharged or such acceleration is not annulled or
rescinded within 20 days after written notice by the Trustee or the Holders of
at least 25% in principal amount of the Outstanding Securities of such series
(provided, that no Event of Default under this clause (iv) shall be deemed to
exist as a result of an acceleration of any such indebtedness if the principal
of and interest on such indebtedness, when added to the principal of and
interest on all other such indebtedness which has been accelerated as aforesaid
(excluding any such indebtedness which has been discharged or as to which the
acceleration has been duly rescinded or annulled), shall not exceed
$50,000,000); or (v) certain events of bankruptcy, insolvency or reorganization
of Occidental. If an Event of Default with respect to the Securities of any
series occurs and is continuing, the Trustee or Holders of not less than 25% in
principal amount of the Outstanding Securities of such series may declare the
principal amount (or, if any of the Securities of such series are Discount
Securities, such portion of
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the principal amount of such Securities as may be specified by the terms
thereof) of all of the Securities of such series to be due and payable
immediately. Under certain circumstances, the Holders of a majority in principal
amount of the Outstanding Securities of such series may rescind such a
declaration.
The Holders of a majority in principal amount of the Outstanding Securities
of any series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series, provided
that such direction is not in conflict with any rule of law or the Indenture. In
case an Event of Default occurs (and is not cured), the Trustee is required to
exercise such of its rights and powers under the Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs. Subject to
such provisions, the Trustee is under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
Holders of the Securities, unless such Holders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with any such request or direction.
MODIFICATION AND WAIVER
Occidental and the Trustee may execute a supplemental indenture, without
the consent of the Holders of the Securities or any related coupons: (i) to add
to the covenants, agreements and obligations of Occidental for the benefit of
the Holders of all the Securities of any series or to surrender any right or
power conferred in the Indenture upon Occidental; (ii) to evidence the
succession of another corporation to Occidental and the assumption by it of the
covenants of Occidental in the Indenture and the Securities; (iii) to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or interest, if any,
on Bearer Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit the issuance of
Securities in uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; (iv) to establish the form or terms of
Securities of any series and any related coupons as permitted by Sections 201
and 301 of the Indenture; (v) to provide for the acceptance of appointment under
the Indenture of a successor Trustee with respect to the Securities of one or
more series and to add to or change any provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts by more
than one Trustee; (vi) to cure any ambiguity or correct any inconsistency in the
Indenture or make other changes, provided that no such action shall adversely
affect the interests of the Holders of the Securities; (vii) to add to, change
or eliminate any provisions (which addition, change or elimination may apply to
one or more series of Securities), provided that any such addition, change or
elimination neither (a) applies to any Security of any series created prior to
the execution of such supplemental indenture that is entitled to the benefit of
such provision nor (b) modifies the rights of the Holder of any such Security
with respect to such provision; (viii) to secure the Securities; or (ix) if
allowed under applicable laws and regulations, to permit payment in the United
States of principal or interest on Bearer Securities or coupons.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of the series affected by such supplemental
indenture, Occidental and the Trustee also may execute a supplemental indenture
to add provisions to, or change in any manner or eliminate any provisions of,
the Indenture with respect to such series of Securities or modify in any manner
the rights of the holders of the Securities of such series and any related
coupons under the Indenture, provided that no such supplemental indenture will,
without the consent of the Holder of each Outstanding Security affected thereby:
(i) change the stated maturity of the principal of, or any instalment of
interest on, any such Security or any premium payable upon redemption thereof,
or reduce the amount of principal of any such Discount Security that would be
due and payable upon declaration of acceleration of maturity thereof; (ii)
reduce the principal amount of, or the rate of interest on, any such Security;
(iii) change the place or currency of payment of principal or interest, if any,
on any such Security; (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Security; (v) reduce
the above-stated percentage of Holders of Securities of any series necessary to
modify or amend the Indenture; or (vi) modify the foregoing requirements or
reduce the
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percentage in principal amount of Outstanding Securities of any series necessary
to waive any covenant or past default. Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may waive certain
past defaults and may waive compliance by Occidental with certain of the
restrictive covenants described above with respect to the Securities of such
series.
DISCHARGE
Unless otherwise indicated in an applicable Prospectus Supplement,
Occidental may terminate at any time its obligations under the Indenture with
respect to the Securities of any series by (i)(a) delivering all Outstanding
Securities of such series to the Trustee for cancellation or (b) depositing with
the Trustee funds or non-callable United States government obligations
sufficient to pay all remaining indebtedness on the Securities of such series
and (ii) complying with certain other provisions of the Indenture. See "United
States Taxation -- Defeasance of Debt Securities."
REPORTS
Occidental is required to furnish to the Trustee annually (i) a statement
as to the fulfillment by Occidental of all of its covenants under the Indenture
and (ii) within 20 days after the occurrence thereof, notice of each
acceleration which, with the giving of notice and the lapse of time, would be an
Event of Default, as described above in clause (iv) under "Events of Default."
THE TRUSTEE
The Trustee is a New York banking corporation. The Trustee is a
participating lender under a revolving credit agreement of Occidental and
provides commercial banking services to Occidental and certain of its
subsidiaries. The Indenture contains certain limitations on the rights of the
Trustee, as a creditor of Occidental, to obtain payment of claims in certain
cases or to realize on certain property received in respect of any such claim as
security or otherwise. The Trustee will be permitted to engage in other
transactions with Occidental and its subsidiaries; provided, however, that if
the Trustee acquires any conflicting interest at such time as a default is
pending under the Indenture, it must (with certain exceptions) eliminate such
conflict or resign.
UNITED STATES TAXATION
GENERAL
Set forth below is a summary of certain Federal income tax considerations
of importance to the original purchasers of the Debt Securities. The summary
does not discuss all of the aspects of Federal income taxation that may be
relevant to particular investors in light of their personal investment
circumstances, nor does it discuss any foreign, state or local income or other
tax considerations. The summary is based upon the Internal Revenue Code of 1986,
as amended (the "Code"), and on regulations, rulings and decisions that are now
in effect, all of which are subject to change, possibly retroactively.
Prospective purchasers of the Debt Securities are advised to consult with their
tax advisors regarding the Federal, state, local and foreign income and other
tax consequences of purchasing, holding and disposing of the Debt Securities.
Special Federal tax considerations and other restrictions or terms applicable to
any Debt Securities that are issuable as Bearer Securities, offered exclusively
to United States Aliens or denominated in a currency other than United States
dollars will be set forth in an applicable Prospectus Supplement.
For purposes of this summary, "United States Alien" means any person who,
for Federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust or a
foreign partnership, one or more of the members of which is, for Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
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ORIGINAL ISSUE DISCOUNT
Debt Securities with a term greater than one year may be issued with
original issue discount for Federal income tax purposes. Original issue discount
may arise because the stated principal amount at maturity of a Debt Security
exceeds its issue price by more than a de minimis amount or because of certain
interest payment characteristics of the Debt Security (e.g., interest holidays,
interest payable in additional Debt Securities, stepped rates or rates based on
multiple indices). If the Debt Securities are issued with original issue
discount, holders of the Debt Securities will be required to include amounts in
gross income for Federal income tax purposes in advance of the receipt of the
cash to which such income is attributable. The amount of original issue discount
to be included in income in any tax period will be determined using a constant
yield-to-maturity method that will result in the allocation of less original
issue discount to the earlier years of the term of the Debt Securities and more
original issue discount to the later years. Any amounts included in income as
original issue discount will increase a holder's tax basis in the Debt Security.
Any special Federal income tax considerations that may be applicable to Debt
Securities that (i) provide for interest at one or more variable rates; or (ii)
provide for any amounts of payments of interest or principal to be determined by
reference to an index, formula or other method, or based on a currency other
than that in which the Debt Securities are stated to be payable, will be set
forth in the applicable Prospectus Supplement or any Pricing Supplement thereto.
Occidental will report annually to the Internal Revenue Service and each
holder the original issue discount accrued with respect to the Debt Security.
Prospective holders are advised to consult their tax advisors with respect to
the particular original issue discount characteristics of the Debt Security that
is being purchased.
ACQUISITION DISCOUNT
Debt Securities that have a fixed maturity of one year or less may be
issued with acquisition discount. Acquisition discount may arise for the reasons
stated above with respect to original issue discount. Accrual basis taxpayers
and taxpayers in certain specified classes would be required to include
acquisition discount in income currently, in an amount and manner similar to
that applicable to original issue discount. Individuals and other cash basis
taxpayers holding such Debt Securities are not required but may elect to include
accrued acquisition discount in income until the cash attributable to such
amounts is received, which amounts will be treated as ordinary income. A holder
who does not recognize acquisition discount currently also may be subject to
limitations on the deductibility of interest on indebtedness incurred to
purchase or, in certain circumstances, carry such Debt Securities.
DISPOSITION OF DEBT SECURITIES
In general, and subject to the foregoing discussion of acquisition
discount, an original holder of a Debt Security will recognize gain or loss on
the sale, redemption, exchange or other disposition of the Debt Security, which
gain or loss will be measured by the difference between the amount of cash
received (except to the extent attributable to accrued interest) and the
holder's tax basis in the Debt Security.
DEFEASANCE OF DEBT SECURITIES
If Occidental exercises its right to satisfy and discharge its obligations
under the Indenture with respect to any series of the Debt Securities prior to
its maturity by depositing money or United States government obligations in
trust for holders of outstanding Debt Securities of that series, such
satisfaction and discharge ("discharge"), under present law, is likely to be
treated as a redemption of the Debt Securities of that series prior to maturity
in exchange for the property deposited in trust. In such event, and subject to
the foregoing discussion of acquisition discount, each holder would generally
recognize, at the time of discharge, gain or loss measured by the difference
between (i) the sum of (a) the amount of any cash and (b) the fair market value
of any property deemed received (except to the extent attributable to accrued
interest) and (ii) the holder's tax basis in the Debt Securities deemed
surrendered. Thereafter, each holder would be treated as if it held an undivided
interest in the cash (or investments made therewith) and the property held in
trust. Each holder would generally be subject to tax liability in respect of
interest income and original issue discount, if applicable, thereon and would
recognize any gain or loss upon any disposition, including redemption, of the
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assets held in trust. Although tax might be owed, the holder of a discharged
Debt Security would not receive cash (except for current payments of interest on
such Debt Security) until the maturity or earlier redemption of such Debt
Security. Such tax treatment could affect the purchase price that a holder would
receive upon the sale of the Debt Securities.
HOLDERS WHO ARE UNITED STATES ALIENS
Under present Federal income and estate tax law, assuming certain
certification requirements are satisfied (which, in the case of Registered
Securities, includes identification of the beneficial owner of a Debt Security),
and subject to the discussion of backup withholding below:
(i) payments of interest (including any original issue discount) on a
Debt Security to any United States Alien holder will not be subject to
Federal income or withholding tax; provided that (a) the holder does not
actually or constructively own 10% or more of the total combined voting
power of all classes of stock of Occidental entitled to vote, (b) the
holder is not (1) a foreign tax-exempt organization or foreign private
foundation for Federal income tax purposes, (2) a bank receiving interest
on an extension of credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business or (3) a controlled foreign
corporation that is related to Occidental through stock ownership and (c)
such interest payments are not effectively connected with the conduct of a
United States trade or business of the holder;
(ii) a holder of a Debt Security who is a United States Alien will not
be subject to Federal income or withholding tax on gain realized on the
sale, exchange, retirement or other disposition of such Debt Security,
unless (a) such holder is an individual who is present in the United States
for 183 days or more during the taxable year and holds such Debt Security
as a capital asset, and certain other requirements are met, or (b) the gain
is effectively connected with the conduct of a United States trade or
business of the holder; and
(iii) a Debt Security held by an individual, who at the time of death
is not a citizen or resident of the United States, will not be subject to
Federal estate tax as a result of such individual's death unless (a) the
income from the Debt Security is effectively connected with a United States
trade or business of the holder or (b) the individual actually or
constructively owns 10% or more of the total combined voting power of all
classes of stock of Occidental entitled to vote.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Occidental will, where required, report to the holders of the Debt
Securities and the Internal Revenue Service the amount of any interest paid or
original issue discount accruing on the Debt Securities in each calendar year
and the amounts of tax withheld, if any, with respect to such payments.
Under current Federal income tax law, a 31% backup withholding tax is
required with respect to certain interest and principal payments made to, and
the proceeds of sales before maturity by, certain United States holders if such
persons fail to supply their taxpayer identification numbers and other
information. Under temporary United States Treasury Department regulations,
backup withholding tax and certain information reporting requirements will
generally not apply to interest paid with respect to a Debt Security to a United
States Alien at an address outside the United States. Payments by a United
States office of a broker of the proceeds of a sale of a Debt Security are
subject to both backup withholding and information reporting, unless the holder
certifies its United States Alien status under penalties of perjury or otherwise
establishes an exemption. Information reporting requirements (but not backup
withholding) also will apply to payments of the proceeds of sales of Debt
Securities by foreign offices of United States brokers, or foreign brokers with
certain types of relationships to the United States, unless the broker has
documentary evidence in its records that the holder is a United States Alien and
certain other conditions are met or the holder otherwise establishes an
exemption.
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Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules will be refunded or credited against a holder's United
States Federal income tax liability, provided that required information is
furnished to the Internal Revenue Service.
These backup withholding and information reporting rules are under review
by the United States Treasury Department and their application to the Debt
Securities could be changed by future regulations.
PLAN OF DISTRIBUTION
Occidental may sell Debt Securities to one or more underwriters or dealers
for public offering and sale by them or may sell Debt Securities to investors
directly or through one or more agents designated from time to time by
Occidental. Any such underwriter or agent involved in the offer and sale of the
Debt Securities will be named in an applicable Prospectus Supplement.
Underwriters or agents may offer and sell the Debt Securities at a fixed
price or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. Occidental also may offer and sell the Debt
Securities in exchange for one or more of its outstanding issues of debt
securities. In connection with the sale of Debt Securities, underwriters or
agents may be deemed to have received compensation from Occidental in the form
of underwriting discounts or commissions and also may receive commissions from
purchasers of Debt Securities for whom they may act as agent. Underwriters may
sell Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers of Debt Securities for whom they may act as agent.
Any compensation paid by Occidental to underwriters or agents in connection
with the offering of Debt Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in an applicable Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Debt Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Debt Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements with Occidental, to
indemnification against, and contribution toward, certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by
Occidental for certain expenses.
Underwriters, dealers or agents to or through which Debt Securities may be
offered and sold may engage in transactions with, or perform other services for,
Occidental and its subsidiaries in the ordinary course of business.
If so indicated in an applicable Prospectus Supplement, Occidental may
authorize underwriters or dealers, acting as Occidental's agents, to solicit
offers by certain institutions to purchase Debt Securities from Occidental at
the public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Debt
Securities sold pursuant to Contracts shall not be less nor more than, the
respective amounts stated in such Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be subject
to the approval of Occidental. Contracts will not be subject to any conditions
except: (i) the purchase by an institution of the Debt Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject; and (ii)
if the Debt Securities are being sold to underwriters, Occidental shall have
sold to such underwriters the total principal amount of the Debt Securities,
less the principal amount thereof covered by Contracts. Underwriters and dealers
will have no responsibility in respect of the delivery or performance of
Contracts, except to the extent they have entered into a Contract.
The Debt Securities may or may not be listed on a national securities
exchange or a foreign securities exchange. No assurances can be given that there
will be a market for the Debt Securities.
14
<PAGE> 16
LEGAL MATTERS
Certain legal matters with respect to the legality of the Debt Securities
being offered hereby will be passed upon for Occidental by Robert E. Sawyer,
Esq., Associate General Counsel of Occidental. Mr. Sawyer beneficially owns, and
has rights to acquire under employee stock options, an aggregate of less than 1%
of the outstanding common stock of Occidental.
EXPERTS
The consolidated financial statements and financial statement schedule of
Occidental and its subsidiaries, included or incorporated by reference in
Occidental's Annual Report on Form 10-K for the fiscal year ended December 31,
1994, which are incorporated by reference in this Prospectus, have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, which are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports. Reference is made to said reports, which include an
explanatory paragraph with respect to the adoption by Occidental, effective
January 1, 1992, of Statement of Financial Accounting Standards No. 106 and No.
109, as discussed in Note 4 to the consolidated financial statements.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with this offering to be borne by
Occidental, other than any fees, discounts and commissions payable to
underwriters or agents, are:
<TABLE>
<S> <C>
Registration fee................................................. $ 258,623
Printing fees and expenses....................................... 120,000
Accounting fees and expenses..................................... 125,000
Rating agency fees............................................... 350,000
Legal fees and expenses.......................................... 50,000
Blue sky fees and expenses....................................... 10,000
Fees of Trustee.................................................. 10,000
Miscellaneous.................................................... 1,377
----------
Total.................................................. $ 925,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers under certain circumstances for liabilities incurred in connection
with their activities in such capacities (including reimbursement for expenses
incurred). Occidental's Restated Certificate of Incorporation, as amended,
provides for the elimination of personal liability of its directors to the full
extent permitted by the Delaware General Corporation Law and Occidental has
entered into indemnification agreements with each director and certain officers
providing for additional indemnification. Article VIII of Occidental's By-laws
provides that Occidental shall indemnify directors and officers under certain
circumstances for liabilities and expenses incurred by reason of their
activities in such capacities. In addition, Occidental has insurance policies
that provide liability coverage to directors and officers while acting in such
capacities.
The forms of Underwriting Agreement and Distribution Agreement filed as
Exhibits 1.1 and 1.2, respectively, to this Registration Statement provide for
indemnification of directors and officers of Occidental by the underwriters or
agents, as the case may be, against certain liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
1.2 Form of Distribution Agreement.
4 Form of Indenture between Occidental and The Bank of New York, as
Trustee, relating to the Securities.
5 Opinion of Robert E. Sawyer, Esq.
12 Statement regarding the computation of total enterprise ratios of
earnings to fixed charges (incorporated by reference to Exhibit 12 to
Occidental's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1995, File No. 1-9210).
23.1 Consent of Robert E. Sawyer, Esq. (included in Exhibit 5).
23.2 Consent of Independent Public Accountants.
24 Power of Attorney of the Registrant (reference is hereby made to page
II-3).
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Trustee under the Indenture.
</TABLE>
II-1
<PAGE> 18
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act, unless such information required in such post-effective
amendment is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act, that are incorporated by reference in this Registration
Statement;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement, unless such information is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-2
<PAGE> 19
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Donald
P. de Brier, Scott A. King, Matthew T. Gay and Robert E. Sawyer his or her true
and lawful attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all Amendments (including
Post-Effective Amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, or his or her substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on May 17, 1995.
OCCIDENTAL PETROLEUM CORPORATION
By /s/ R. R. IRANI
------------------------------------
Ray R. Irani
Chairman of the Board of Directors,
President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ R. R. IRANI Chairman of the Board May 17, 1995
- ------------------------------------------- of Directors, President
Ray R. Irani and Chief Executive
Officer
/s/ A. R. LEACH Executive Vice May 17, 1995
- ------------------------------------------- President and Chief
Anthony R. Leach Financial Officer
/s/ S. P. DOMINICK Vice President and May 17, 1995
- ------------------------------------------- Controller (Chief
Samuel P. Dominick, Jr. Accounting Officer)
</TABLE>
II-3
<PAGE> 20
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ALBERT GORE Director May 17, 1995
- ----------------------------------------------
Albert Gore
/s/ ARTHUR GROMAN Director May 17, 1995
- ----------------------------------------------
Arthur Groman
/s/ J. ROGER HIRL Director May 17, 1995
- ----------------------------------------------
J. Roger Hirl
/s/ JOHN W. KLUGE Director May 17, 1995
- ----------------------------------------------
John W. Kluge
/s/ DALE R. LAURANCE Director May 17, 1995
- ----------------------------------------------
Dale R. Laurance
/s/ I. W. MALONEY Director May 17, 1995
- ----------------------------------------------
Irvin W. Maloney
/s/ GEORGE O. NOLLEY Director May 17, 1995
- ----------------------------------------------
George O. Nolley
/s/ JOHN F. RIORDAN Director May 17, 1995
- ----------------------------------------------
John F. Riordan
/s/ RODOLFO SEGOVIA Director May 17, 1995
- ----------------------------------------------
Rodolfo Segovia
/s/ AZIZ D. SYRIANI Director May 17, 1995
- ----------------------------------------------
Aziz D. Syriani
/s/ ROSEMARY TOMICH Director May 17, 1995
- ----------------------------------------------
Rosemary Tomich
</TABLE>
II-4
<PAGE> 21
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------- ----------- ------------
<S> <C> <C>
1.1 Form of Underwriting Agreement........................................
1.2 Form of Distribution Agreement........................................
4 Form of Indenture between Occidental and The Bank of New York, as
Trustee, relating to the Securities...................................
5 Opinion of Robert E. Sawyer, Esq......................................
12 Statement regarding the computation of total enterprise ratios of
earnings to fixed charges (incorporated by reference to Exhibit 12 to
Occidental's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1995, File No. 1-9210)................................
23.1 Consent of Robert E. Sawyer, Esq. (included in Exhibit 5).............
23.2 Consent of Independent Public Accountants.............................
24 Power of Attorney of the Registrant (reference is hereby made to page
II-4).................................................................
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture.............................................................
</TABLE>
<PAGE> 1
EXHIBIT 1.1
Proof of May 4, 1995
OCCIDENTAL PETROLEUM CORPORATION
FORM OF UNDERWRITING AGREEMENT
[Date]
Dear Sirs:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with [insert names of lead underwriters] (collectively
the "Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11 hereof) with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth opposite their names on Schedule A
hereto, of the Company's (the "Notes"). The Notes are to be
issued pursuant to an indenture (the "Indenture", which term, for the purpose of
this Agreement, shall include the Officers' Certificate, dated
, delivered pursuant to Sections 201 and 301 of the
Indenture), dated as of May 1, 1995, between the Company and The Bank of New
York, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33- ) for the
registration of senior 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 has been declared effective by the Commission and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement and the prospectus constituting a
part thereof, together with any preliminary prospectus supplement and any
prospectus supplement relating to the Notes, including, in each case, all
Incorporated Documents (as hereinafter defined), are referred to herein as the
"Registration Statement" and the
<PAGE> 2
"Prospectus," respectively, except that, if any revised prospectus shall be
provided to the Underwriters 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 from and after the time it is first provided to the
Underwriters for such use. Any reference herein to the Registration Statement or
the Prospectus shall be deemed to refer to and include the documents, financial
statements and schedules 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 Securities Exchange Act of 1934, as amended (the
"1934 Act"), and so 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 debt securities other than the Notes
shall not be deemed to have supplemented the Prospectus.
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each of the Underwriters as
follows:
(i) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act, and 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; 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 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 date hereof and at the
Closing Time, the Registration Statement and the Prospectus, and any
supplement or amendment thereto relating to the Notes, will comply in all
material respects with the provisions of the 1933 Act and the 1933 Act
Regulations; and the Registration Statement and 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 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 any Underwriter 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.
2
<PAGE> 3
(iii) This Agreement, the Indenture and the Notes have been duly
authorized by the Company and conform in all material respects to the
descriptions thereof in the Prospectus.
(iv) The Indenture (assuming the due execution and delivery thereof by
the Trustee) is, and the Notes (when executed by the Company and
authenticated in accordance with the 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 or composite currency.] The Notes (when executed by the
Company and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the purchasers thereof) will be entitled to
the benefits of the Indenture (subject to the exceptions set forth in the
preceding sentence).
(v) The Company and each of MidCon Corp., a Delaware corporation,
Occidental Chemical Holding Corporation, a California corporation, and
Occidental Oil and Gas Corporation, a California corporation (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 is owned by the Company, directly or indirectly through
subsidiaries, free and clear of any security interest, claim, lien or
encumbrance. There are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in any such Principal Domestic
Subsidiary, except for rights, warrants or options held by the Company.
(vi) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless the Company has notified the
Underwriters as provided in Section 4(d) hereof, there has not been any
material adverse change in the consolidated financial condition 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 and the Indenture 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 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
3
<PAGE> 4
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.
(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.
(ix) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to the Underwriters or to counsel for the Underwriters
in connection with transactions contemplated hereby shall be deemed a
representation and warranty by the Company to such Underwriters as to the
matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) Purchase and Sale. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at % of the principal amount thereof, the principal amount of Notes
set forth on Schedule A opposite the name of such Underwriter.
(b) Closing Time. Payment of the purchase price for, and delivery of the
certificates for, the Notes shall be made at the offices of
, or at such other place as shall be agreed upon by the
Underwriters and the Company, at 10:00 a.m., New York City time, on the fifth
business day after execution and delivery of this Agreement, or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called "Closing Time"). Payment shall be made to the Company by certified
or official bank check or checks in New York Clearing House funds payable to the
order of the Company, against delivery to the Underwriters of certificates for
the Notes to be purchased by them. Certificates for the Notes shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least two business days before Closing Time. It is understood that
each Underwriter has authorized for its respective account, to
accept delivery of, and receipt for, and make payment of the purchase price for,
the Notes which such Underwriter has agreed to purchase. The certificates for
the Notes will be made available for examination and packaging by the
Underwriters not later than 10:00 a.m. on the last business day prior to Closing
Time at the offices of .
SECTION 3. Foreign Offerings.
Each Underwriter represents and agrees that (i) such Underwriter has not
solicited, and will not solicit, offers to purchase any of the Notes from, (ii)
such Underwriter has not sold, and will not sell, any of the Notes to, and (iii)
such Underwriter 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 subsection (d), "United States" means the
United States of
4
<PAGE> 5
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 Underwriter agrees to distribute, in connection with any
Foreign Offers and Sales, only those Prospectuses used in connection
therewith that have been appropriately "stickered" for use in the
jurisdiction in which such Foreign Offers and Sales are to be made.
(ii) With respect to the United Kingdom, each Underwriter represents
and agrees that (A) it has not offered or sold and will not offer or sell
in the United Kingdom or elsewhere, by means of any document, any Notes
other than to persons whose ordinary business it is to buy or sell shares
or debentures, whether as principal or agent or in circumstances which do
not constitute an offer to the public within the meaning of the Companies
Act 1985 of the United Kingdom, (B) it has complied and will comply with
all applicable provisions of the Financial Services Act 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
9(3) of the Financial Services Act (Investment Advertisements) (Exemptions)
Order 1986 or is a person to whom the document may otherwise lawfully be
issued or passed on, provided, however, that clause (A) above shall not
apply in respect of any Notes in respect of which application has been made
for admission to the official list of The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited ("The London Stock
Exchange"), in which event each Underwriter undertakes to comply with the
requirements of the Financial Services Act, in particular the directions
and rules made by The London Stock Exchange or such other party as may for
the time being be the competent authority under the Financial Services Act.
(iii) With respect to Japan, each Underwriter understands that the
Notes have not been, and will not be, registered under the Securities and
Exchange Law of Japan, and, accordingly, each Underwriter represents and
agrees that (A) in connection with the initial offering of any of the
Notes, such Underwriter has not, directly or indirectly, offered or sold,
and will not, directly or indirectly, offer or sell, any of the Notes in
Japan or to any resident of Japan (including any corporation or other
entity incorporated or organized under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to any such
resident of Japan, except, in each case, in compliance in all material
respects with the Securities and Exchange Law of Japan, and (B) with
respect to any such sale of the Notes made by such Underwriter, such
Underwriter will effect all necessary filings in connection with such sale,
including, without limitation, any required filings of notifications with
the Minister of Finance of Japan, as required pursuant to the provisions of
relevant securities or foreign exchange control legislation of Japan.
(iv) With respect to the Provinces of Canada (the "Provinces"), each
Underwriter represents and agrees that, in connection with the initial
offering of any of the Notes, (A) such Underwriter 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, such
Underwriter 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 Underwriter in relation to the Notes in, from, or
otherwise involving, any of the Provinces, such Underwriter 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
5
<PAGE> 6
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 Underwriter, or
Notes purchased, or to be purchased, by such Underwriter, 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 , and will
obtain from each of such investors an acknowledgement in form satisfactory
to the Company, and (D) with respect to any such sale of the Notes made by
such Underwriter, such Underwriter will effect all necessary filings in
connection with such sale, including, without limitation, any required
filings of (x) reports of trades and (y) the Canadian Offering Memorandum,
in each case with provincial securities commissions, as required pursuant
to the provisions of applicable Canadian Securities Legislation.
SECTION 4. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof to
and including the Closing Time, the Company will notify the Underwriters
promptly (i) of the effectiveness of any post-effective amendment to the
Registration Statement, (ii) of the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose. 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) Proposed Filings. During the period from the date hereof to and
including the Closing Time, the Company will not file any amendment or
supplement to the Registration Statement, or file any amendment or supplement to
the Prospectus, in either case relating to the Notes, of which the Underwriters
shall not previously have been advised or to which the Underwriters 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 and the Prospectus. The Company
will deliver to each of the Underwriters one signed and as many conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto relating to the Notes (including the Incorporated Documents and any
exhibits filed therewith or incorporated by reference therein) as the
Underwriters may reasonably request. The Company will furnish to the
Underwriters as many copies of the Prospectus (as amended or supplemented) as
the Underwriters shall reasonably request so long as the Underwriters 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
Underwriters 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 Underwriters, 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 to the Underwriters, and the Company will promptly prepare and file an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will
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<PAGE> 7
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
Underwriters.
(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 Closing Time, 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).
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Underwriters, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters 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
Underwriters 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) Filing of Prospectus. Immediately following the execution and delivery
of this Agreement, the Company will prepare and file or transmit for filing with
the Commission in accordance with Rule 424(b) of the 1933 Act Regulations,
copies of a supplement to the Prospectus containing the terms of the Notes and
such other information as the Underwriters and the Company deem appropriate.
[(h) Listing of Notes. The Company will use its reasonable best efforts to
cause the Notes to be duly authorized for listing on the New York Stock
Exchange.]
SECTION 5. 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 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 qualification of the Notes under securities laws in accordance
with the provisions of Section 4(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel to the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky
survey and any legal investment survey;
(vi) The printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the 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 Underwriters of the
Prospectus and any amendments or supplements thereto in connection with
solicitations of offers to purchase, or confirmations of sales of, the
Notes;
(vii) The preparation, printing and delivery to the Underwriters of
copies of the Indenture;
(viii) Any fees charged by rating agencies for the rating of the
Notes; and
(ix) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc. relating
to the offering made hereby.
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<PAGE> 8
If this Agreement is terminated pursuant to any of the provisions hereof
(otherwise than by notice given by the Underwriters in connection with the
occurrence of any event set forth in Section 10(a)), the Company shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Obligations.
The obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company herein and the
accuracy 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) At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or contemplated by the Commission; no stop order
suspending the sale of the Notes in any jurisdiction designated by the
Underwriters pursuant to Section 4(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 Underwriters, shall be contemplated; any request of the
Commission for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been complied with to
satisfaction of the Underwriters. The supplement to the Prospectus referred to
in Section 4(g) of this Agreement shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the
prescribed time period, and prior to Closing Time the Company shall have
provided evidence satisfactory to the Underwriters of such timely filing.
(b) The Underwriters shall have received an opinion from Robert E. Sawyer,
Esq., Associate General Counsel for the Company, dated as of the Closing Time
and in form and substance satisfactory to counsel for the Underwriters, 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
Indenture, to borrow money as contemplated in this Agreement and the
Indenture, and to issue, sell and deliver the Notes.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
(iv) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(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 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.
(vi) The Notes, when executed by the Company and authenticated by the
Trustee in accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee) and
issued to and paid for by the Underwriters in accordance with the terms of
this Agreement, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except that such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other
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<PAGE> 9
similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law).
(vii) The Registration Statement has become effective under the 1933
Act and the Indenture 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 has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated.
(viii) The execution and delivery of this Agreement and the Indenture
by the Company, the issuance and sale of the Notes and the fulfillment of
this Agreement and the Indenture 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 currently in effect 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, as of the date it became effective,
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
Securities Exchange Act of 1934, as the case may be, except that in each
case such counsel need not express an opinion as to the financial
statements and 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 Debt Securities" and "[Description of the Notes]," 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.
(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 and the Indenture by
the Company, the issuance and sale of the Notes and the performance by the
Company of its obligations under this Agreement and the Indenture will not
conflict with or constitute a breach of or a default (with the passage of
time or otherwise) under, subject to the Company's compliance with any
applicable covenants pertaining to its incurrence of unsecured
indebtedness, any agreement or instrument that 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.
[In rendering the opinions set forth in paragraphs (iv) and (vi)
above, such counsel may state that such enforcement may be limited by (i)
requirements that a claim with respect to any Notes
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<PAGE> 10
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 (ii) governmental authority to
limit, delay or prohibit the making of payments outside the United States
or in foreign currency or composite currency.]
In rendering such opinion 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 Underwriters and
counsel for the Underwriters, at which conferences the contents of the
Registration Statement and Prospectus and related matters were discussed
and, although he is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (other than as
set forth in paragraph (x) above) and has not made any independent check or
verification thereof, on the basis of the foregoing, 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, and if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by
the Company with the Commission subsequent to the effectiveness of the
Registration Statement and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference therein),
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 the Prospectus (including the
Incorporated Documents) as of its date and as of the Closing Time contained
an untrue statement of a material fact or omitted 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 or Prospectus or with respect to the Form T-1.
(c) The Underwriters shall have received an opinion from Brown & Wood,
counsel to the Underwriters, dated as of the Closing Time and in form and
substance satisfactory to the Underwriters.
(d) 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 Closing Time, 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 in the
consolidated financial condition of the Company and its subsidiaries, taken as a
whole. The Underwriters shall have received a certificate signed by an officer
of the Company, dated as of the Closing Time, 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 the Indenture 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 Statements 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.
(e) Comfort Letter. On the date hereof, the Underwriters 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 Underwriters, to
the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and its subsidiaries audited and
reported upon by them and incorporated by reference in the
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<PAGE> 11
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the rules and regulations thereunder.
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim consolidated
financial statements of the Company, a reading of the minute books of the
Company since the end of the most recent fiscal year with respect to which
an audit report has been issued, inquiries of and discussions with certain
officials of the Company and certain of its subsidiaries responsible for
financial and accounting matters with respect to the unaudited consolidated
financial statements incorporated by reference in the Registration
Statement and Prospectus and the latest available interim unaudited
consolidated financial statements of the Company, and such other inquiries
and procedures as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused them
to believe that: (A) the unaudited consolidated financial statements of the
Company incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the rules and
regulations thereunder or were not fairly presented in conformity with
generally accepted accounting principles in the United States applied on a
basis substantially consistent with that of the audited financial
statements incorporated by reference therein, or (B) 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 Underwriters
and the Company.
(iv) In addition to the audit referred to in their report included or
incorporated by reference in the Registration Statement and the Prospectus,
and the limited procedures referred to in clause (iii) above, they have
carried out certain other specified procedures, not constituting an audit,
with respect to certain financial information which is included or
incorporated by reference in the Registration Statement and Prospectus,
which would normally be covered under auditing procedures and which are
specified by the Underwriters, and have found such financial information to
be in agreement with the relevant accounting, financial and other records
of the Company identified in such letter.
(f) Subsequent Delivery of Comfort Letter. At the Closing Time, the
Underwriters shall have received from the Company's independent public
accountants a letter, dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the specified date referred to shall be a date not
more than five days prior to the Closing Time.
(g) Other Documents. At the Closing Time, counsel for the Underwriters
shall have been furnished with resolutions of the Company's Board of Directors
authorizing and approving the issuance and sale of the Notes and matters related
thereto and such other documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by any of
the Underwriters by notice to the Company at any time at or prior to the Closing
Time, and any such termination shall be without liability of any party to any
other party, except as provided in Section 5.
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SECTION 7. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls an
Underwriter 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
Underwriters), as incurred, insofar as such loss, liability, claim, damage
or expense arises out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arises out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (including, subject to the limitations set forth in subsection
(c) below, the reasonable fees and disbursements of counsel chosen by the
Underwriters), 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 Underwriters), 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 Underwriter 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 Underwriter; or (C) as to which such Underwriter 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 Underwriter
pertaining to the sale of the Notes pursuant to which such Underwriter may be
required to indemnify the Company for such loss, liability, claim, damage or
expense.
(b) Indemnification of the Company. Each Underwriter agrees 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 such Underwriter expressly for
use in the Registration Statement or the Prospectus.
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(c) General. (i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Underwriter or any person controlling such Underwriter, based upon the
Registration Statement or the Prospectus and with respect to which indemnity may
be sought against the Company pursuant to this Section 7, such Underwriter or
controlling person shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel and
payment of all expenses. Any such Underwriter 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 Underwriter 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 counsel or (C) the named parties to any
such action, suit or proceeding (including any impleaded parties) shall include
both such Underwriter or such controlling person and the Company, and such
Underwriter 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
Underwriter 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 Underwriter 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 Underwriters and such
controlling persons, which firm shall be designated in writing by a majority of
all such Underwriters, on behalf of all of such Underwriters 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 Underwriter
pursuant to this Section 7, such Underwriter 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 Underwriters 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 by the indemnified parties, although applicable in
accordance with its terms, the Company and each Underwriter 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
Underwriters, as incurred, in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and each of the
Underwriters, on the other hand, from the offering of the Notes. The relative
benefits received by the Company, on the one hand, and the Underwriters, 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 underwriting discounts and commissions
received by each Underwriter, on the other hand, bear to the total price to
public of the Notes as set forth in the table on the cover page of the
Prospectus. 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 Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as such Underwriter, 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
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<PAGE> 14
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 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 Underwriter or any controlling person
of any Underwriter, 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) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time if (i) between the date
hereof and the Closing Date, there shall have been any material adverse change
in the consolidated financial condition of the Company and its subsidiaries,
taken as 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 the
Underwriters, 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,
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, (iv) any nationally recognized securities rating agency in the
United States shall have publicly announced that it has (A) placed the Notes on
what is commonly termed a "watch list" for possible downgrading or (B)
downgraded the Notes, or (v) the Company shall have failed to furnish or cause
to be furnished the certificates, opinions or letters referred to in Section 6
hereof.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5.
SECTION 11. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time to purchase
the Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), the non-defaulting Underwriters shall have the right, within
24 hours thereafter, to make arrangements for one or more of such non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Notes in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, such non-defaulting Underwriters shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of the Notes, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of the Notes, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action pursuant to this Section shall relieve any defaulting Underwriter
from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the non-defaulting Underwriters or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
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<PAGE> 15
SECTION 12. 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 Underwriters shall be directed, as the
case may be, to . Notices to the Company shall be
directed to it at 10889 Wilshire Boulevard, Los Angeles, California 90024,
attention of Vice President and Treasurer.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters 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 14. 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.
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<PAGE> 16
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 Underwriters and the Company in accordance with its terms.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By _____________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date
first above written:
[Underwriters]
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<PAGE> 1
EXHIBIT 1.2
PROOF OF MAY 4, 1995
OCCIDENTAL PETROLEUM CORPORATION
MEDIUM-TERM NOTES, SERIES C
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
FORM OF DISTRIBUTION AGREEMENT
, 1995
Dear Sirs:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of [insert name of Agents] (each an "Agent" and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes, Series C (the "Notes"). The Notes are to be issued
pursuant to an indenture (the "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 Indenture) dated as of May 1, 1995,
between the Company and The Bank of New York, as trustee (the "Trustee"). As of
the date hereof, the Company has authorized the issuance of up to U.S.
$ aggregate offering price (or its equivalent, based upon the
applicable exchange rate at the time of issuance, in such foreign currencies,
composite 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.
<PAGE> 2
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 party
to this Agreement, 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. 33- ) for the
registration of senior 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 has been declared effective by the Commission and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (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 is to be covered by
this Agreement) and the prospectus constituting a part thereof, together with
any prospectus supplement relating to the Notes, including, in each case, all
Incorporated Documents (as hereinafter defined), as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934, as amended (the "1934 Act"), or the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus," respectively,
except that, if any revised prospectus 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 from
and after the time it is first provided to the Agents for such use. Any
reference herein to the Registration Statement or the Prospectus shall be deemed
to refer to and include the documents, financial statements and schedules
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 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 debt securities
other than the Notes shall not be deemed to have supplemented the Prospectus.
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 Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act, 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; 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
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<PAGE> 3
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 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, will comply in all material
respects with the provisions of the 1933 Act and the 1933 Act Regulations;
and the Registration Statement and 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.
(iii) This Agreement, the Indenture, 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 Indenture (assuming the due execution and delivery thereof by
the Trustee) is, and the Notes (when executed by the Company and
authenticated in accordance with the 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 respective 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 or composite currency. The Notes (when executed by the
Company and authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the purchasers thereof) will be entitled to
the benefits of the Indenture (subject to the exceptions set forth in the
preceding sentence).
(v) The Company is a validly existing corporation in good standing
under the laws of its state of incorporation. Each Principal Domestic
Subsidiary (which term means each of MidCon Corp., a Delaware corporation,
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) 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
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<PAGE> 4
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, since the date of the
most recent consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, unless the
Company has notified the Agents as provided in Section 3(d) hereof, there
has not been any material adverse change in the consolidated financial
condition 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 Indenture 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.
(ix) The Company has complied with, and is and will be in compliance
with, the provisions of that certain Florida act relating to disclosure of
doing business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder (collectively, the "Cuba
Act") or is exempt therefrom.
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<PAGE> 5
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to an Agent or to counsel for the Agents in connection
with an offering of Notes shall be deemed a representation and warranty by the
Company to such Agent as to the matters covered thereby on the date of such
certificate.
SECTION 2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its best efforts to
solicit offers to purchase the Notes upon the terms and subject to the
conditions set forth herein and in the Prospectus. The Agents are not authorized
to appoint sub-agents or to engage the services of any other broker or dealer in
connection with the offer or sale of the Notes as agents. In connection with the
solicitation of offers to purchase Notes, the Agents are not authorized to
provide any written information relating to the Company to any prospective
purchaser other than the Prospectus and the Incorporated Documents.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes commencing at any time for any
period of time or permanently. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of offers to purchase the Notes
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, which such Agent is
hereby authorized to deduct from the sales proceeds of each Note sold by the
Company as a result of a solicitation made by such Agent, 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, maturity date and other terms of the
Notes agreed upon by the Company shall be set forth in a pricing supplement to
the Prospectus to be prepared following each acceptance by the Company of an
offer for the purchase of Notes (a "Pricing Supplement"). All Notes will be
issued at 100% of their principal amount, unless otherwise agreed to by the
Company. Each Agent acknowledges and agrees that any funds which such Agent
receives in respect of a purchase of Notes, which purchase has been solicited by
such Agent, as agent of the Company, will be received, held and disposed of by
such Agent, as agent of the Company.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and any reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement if confirmed within 24 hours thereafter by an
exchange of any standard form of written telecommunication (including facsimile
transmission) between the Agent and the Company) is herein referred to as a
"Terms Agreement." Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and the Agent. Each such Terms Agreement,
whether oral (and confirmed in writing, which confirmation may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit B hereto. An Agent's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Unless expressly prohibited by the Company pursuant to the Terms Agreement
relating to a sale of Notes to the Agent, each Agent is authorized to utilize a
selling or dealer group in connection with the resale of the Notes purchased
pursuant to such
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<PAGE> 6
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) such
Agent has not solicited, and will not solicit, offers to purchase any of the
Notes from, (ii) such Agent has not sold, and will not sell, any of the Notes
to, and (iii) such Agent 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 subsection (d), "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 agrees to distribute, in connection with any Foreign
Offers and Sales, only those Prospectuses used in connection therewith that
have been appropriately "stickered" for use in the jurisdiction in which
such Foreign Offers and Sales are to be made.
(ii) With respect to the United Kingdom, each Agent represents and
agrees that (A) it has not offered or sold and will not offer or sell in
the United Kingdom, by means of any document, any Notes other than to
persons whose ordinary business it is to buy or sell shares or debentures,
whether as principal or agent, or in circumstances which do not constitute
an offer to the public within the meaning of the Companies Act 1985, (B) it
has complied and will comply with all applicable provisions of the
Financial Services Act 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 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1988 or is a person to whom
the document may otherwise lawfully be issued or passed on, provided,
however, that clause (A) above shall not apply in respect of any Notes in
respect of which application has been made for admission to the official
list of The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited ("The London Stock Exchange"), in which event
each Agent undertakes to comply with the requirements of the Financial
Services Act, in particular the directions and rules made by The London
Stock Exchange or such other party as may for the time being be the
competent authority under the Financial Services Act.
(iii) With respect to Japan, each Agent understands that the Notes
have not been, and will not be, registered under the Securities and
Exchange Law of Japan, and, accordingly, each Agent represents and agrees
that (A) in connection with the initial offering of any of the Notes, such
Agent has not, directly or indirectly, offered or sold, and will not,
directly or indirectly, offer or sell, any of the Notes in Japan or to any
resident of Japan (including any corporation or other entity incorporated
or organized under the laws of Japan), or to others for re-offering or
resale, directly or indirectly, in Japan or to any such resident of
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<PAGE> 7
Japan, except, in each case, in compliance in all material respects with
the Securities and Exchange Law of Japan, and (B) with respect to any such
sale of the Notes made by such Agent, such Agent will effect all necessary
filings in connection with such sale, including, without limitation, any
required filings of notifications with the Minister of Finance of Japan, as
required pursuant to the provisions of relevant securities or foreign
exchange control legislation of Japan.
(iv) With respect to the Provinces of Canada (the "Provinces"), each
Agent represents and agrees that, in connection with the initial offering
of any of the Notes, (A) such Agent 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, such Agent 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, such Agent 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
, 1995, and will obtain from each of such investors an
acknowledgement 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 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 debt 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 debt 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 or the
Prospectus (other than any comments relating solely to an offering of debt
securities other than the Notes), (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information (other than any such request relating
solely to an offering of debt securities other than the Notes), (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
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 Investors Service,
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
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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, unless the Company shall, in its sole discretion, determine
that it is not in its best interest to do so.
(b) Notice of Certain Proposed Filings. At or prior to the filing thereof,
the Company will give the Agents 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 or any
amendment or supplement to the Prospectus (other than a Pricing Supplement or an
amendment or supplement relating solely to an offering of debt 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 or other documents promptly after the filing thereof.
(c) Copies of the Registration Statement and the Prospectus. The Company
will deliver to the Agents one signed and as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including the Incorporated Documents and any exhibits filed therewith or
incorporated by reference therein) as the Agents may reasonably request. The
Company will furnish to the Agents as many copies of the Prospectus (as amended
or supplemented) as the Agents shall reasonably request so long as the Agents
are required to deliver a Prospectus in connection with sales or solicitations
of offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Changes. So long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes, if any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the Company and
of counsel for the Agents, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading, in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, prompt notice shall be given, and confirmed in writing, to
the Agents to cease the solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the Agents may then own as
principal. In addition, if any Agent holds Notes purchased for resale pursuant
to a Terms Agreement during the period ending 90 days after the date of
execution of such Terms Agreement, the Company will promptly prepare and file an
amendment or supplement to the Prospectus so that the Prospectus, as amended or
supplemented, will not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Agents.
(e) Revisions of Prospectus -- Periodic Financial Information. On or
promptly following the date on which there shall first be released to the
general public interim financial statement information related to the Company's
results of operations for each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year (in
each case which has not been previously included or incorporated by reference in
the Prospectus), the Company shall furnish such information to the Agents and
shall cause the Prospectus to be amended or supplemented, whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, to include or
incorporate by reference such financial statement information included in such
release (but not any narrative information included in each such release), as
well as such other information and explanations as, in the reasonable judgment
of the Company, shall be necessary for an understanding thereof or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(f) 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
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<PAGE> 9
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(f)
shall require the Company to make such earnings statement available more
frequently than once in any period of twelve months.
(g) 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 outside of 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.
(h) Suspension of Certain Obligations. The Company shall not be required
to comply with the provisions of subsections (b), (c), (d), or (e) of this
Section 3 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),
(d) and (e) of this Section 3 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.
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 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(g) 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 and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto relating to the Notes, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in connection with
solicitations of offers to purchase, or confirmations of sales of, the
Notes;
(viii) The preparation, printing and delivery to the Agents of copies
of the Indenture;
(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
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(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) On the date hereof, the Agents shall have received an opinion from
Robert E. Sawyer, Esq., Associate General Counsel of the Company, dated as of
the date hereof and in form and scope 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
Indenture, to borrow money as contemplated in this Agreement and the
Indenture, and to issue, sell and deliver the Notes.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company.
(iv) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(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 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.
(vi) The Notes, when executed by the Company and authenticated by the
Trustee in accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee) and
issued to and paid for by the purchasers thereof, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company enforceable against the Company in accordance with their respective
terms, except that such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).
(vii) The Registration Statement has become effective under the 1933
Act and the Indenture 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 has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated.
(viii) The execution and delivery of this Agreement and the Indenture
by the Company, the issuance and sale of the Notes and the fulfillment of
this Agreement and the Indenture 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,
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(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 currently in effect 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, as of the date it became effective,
and the Prospectus, as of the date of this Agreement, 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 Securities Exchange Act of 1934, as the
case may be, except that in each case such counsel need not express an
opinion as to the financial statements and 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 Debt Securities" and "[Description of the Notes,]" 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.
(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 Indenture 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 Indenture 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 that 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. 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 a 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 opinions set forth in paragraphs (iv) and (vi) above,
such counsel may state that such enforcement may be limited by (i)
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 (ii) governmental authority to limit, delay or prohibit
the making of payments outside the United States or in foreign currency or
composite currency.
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In rendering such opinion such counsel may state that with respect to
certain matters he has relied upon advice of other counsel employed by the
Company who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company, outside
counsel for the Company, representatives of the independent public
accountants for the Company, representatives of the Agents and counsel for
the Agents, at which conferences the contents of the Registration Statement
and Prospectus and related matters were discussed and, although he is not
passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (other than as set forth in paragraph (x)
above) and has not made any independent check or verification thereof, on
the basis of the foregoing, 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, and if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement and prior to
the date of such statement, then at the time such amendment became
effective or at the time of the most recent such filing (to the extent
deemed to be incorporated by reference therein), 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 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 an untrue statement of a material fact or omitted 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 or Prospectus or with respect to the Form T-1.
(b) On the date hereof, the Agents shall have received an opinion from
Brown & Wood, 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 in the consolidated
financial condition 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 the Indenture 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
Statements 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, to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
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(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and its subsidiaries audited and
reported upon by them and incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-3 and the 1934 Act and the
rules and regulations thereunder.
(iii) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim consolidated
financial statements of the Company, a reading of the minute books of the
Company since the end of the most recent fiscal year with respect to which
an audit report has been issued, inquiries of and discussions with certain
officials of the Company and certain of its subsidiaries responsible for
financial and accounting matters with respect to the unaudited consolidated
financial statements incorporated by reference in the Registration
Statement and Prospectus and the latest available interim unaudited
consolidated financial statements of the Company, and such other inquiries
and procedures as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused them
to believe that: (A) the unaudited consolidated financial statements of the
Company incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the rules and
regulations thereunder or were not fairly presented in conformity with
generally accepted accounting principles in the United States applied on a
basis substantially consistent with that of the audited financial
statements incorporated by reference therein, or (B) 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.
(iv) In addition to the audit referred to in their report included or
incorporated by reference in the Registration Statement and the Prospectus,
and the limited procedures referred to in clause (iii) above, they have
carried out certain other specified procedures, not constituting an audit,
with respect to certain financial information which is included or
incorporated by reference in the Registration Statement and Prospectus,
which would normally be covered under auditing procedures and which are
specified by the Agents, and have found such financial information to be in
agreement with the relevant accounting, financial and other records of the
Company identified in such letter.
(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.
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(f) 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.
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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 that relates exclusively to an offering of
debt securities other than the Notes) or there is filed with the Commission any
document incorporated by reference into the Prospectus (other than as required
pursuant to Section 3(e) hereof) or the Company sells Notes to an Agent pursuant
to a Terms Agreement, the terms of which so require, the Company shall use its
best efforts to 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.
(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 debt securities other than the Notes) or
there is filed with the Commission any document incorporated by reference into
the Prospectus (other than any Current Report on Form 8-K or Quarterly Report on
Form 10-Q relating primarily to financial statements or other financial
information as of and for any fiscal quarter) or the Company sells Notes to an
Agent pursuant to a Terms Agreement, the terms of which so require, the Company
shall use its best efforts to 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, and to counsel to the
Agents a letter substantially in the form of Appendix II hereto (modified, as
necessary, in the case of a Terms Agreement) from the counsel last furnishing
the opinion referred to in Section 5(a) hereof or, in lieu of such letter, a
letter from other counsel satisfactory to counsel for the Agents, dated the date
of delivery of such letter and in form satisfactory to counsel for the Agents,
of the same tenor as the opinion referred to in Section 5(a) hereof (other than
the matters covered by Section 5(a)(xi)), 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.
The Company shall use its best efforts to furnish or cause to be furnished
to the Agents, promptly following each filing by the Company of a Quarterly
Report on Form 10-Q or an Annual Report on Form 10-K, a letter from the counsel
last furnishing the opinion referred to in Section 5(a) hereof, or 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)(xi) and the statement in the
last paragraph of Section 5(a) hereof, but modified, as necessary, to relate to
the Registration Statement and Prospectus, as amended and supplemented to the
time of delivery of such letter.
(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 or there is filed with the Commission
any document incorporated by reference into the Prospectus which contains
additional financial statement information relating to the Company (other than
as required pursuant to Section 3(e)
14
<PAGE> 15
hereof) or the Company sells Notes pursuant to a Terms Agreement, the terms of
which so require, the Company shall use its best efforts to 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 tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(d) hereof but modified, as necessary, to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of such
letter, and of the same general tenor as the portions of the letter referred to
in clauses (iii) and (iv) of said Section 5(d) 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;
(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
15
<PAGE> 16
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 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 such Agent expressly for use in the
Registration Statement or the Prospectus.
(c) General. (i) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought against
any Agent or any person controlling such Agent, based upon the Registration
Statement or the Prospectus and with respect to which indemnity may be sought
against the Company pursuant to this Section 7, such Agent or controlling person
shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the employment of counsel and payment of all
expenses. 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 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 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 by 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, 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. The relative benefits received
by the Company, on the one hand, and each of 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 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, bears to the total purchase price of the Notes, in each case as set
16
<PAGE> 17
forth in the applicable Pricing Supplement. 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 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
(i) between the date of such Terms Agreement and the related Settlement Date,
there shall have been any material adverse change in the consolidated financial
condition of the Company and its subsidiaries, taken as 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 and other debt securities, (iii) trading
in any securities of the Company shall have been suspended by the Commission or
a national securities exchange, 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) any of the nationally recognized securities rating agencies
referred to in Section 3(a)(vi) shall have publicly announced that it has (A)
placed the Notes on what is commonly termed as "watch list" for possible
downgrading or (B) downgraded the Notes, or (v) 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
17
<PAGE> 18
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(h)) 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(h)) 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(h)) and (iv) the covenants set forth in Section
3(f) 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
10 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 [insert Agent's notice provisions]. 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.
18
<PAGE> 19
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
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date
first above written:
[Agents]
19
<PAGE> 20
EXHIBIT A
<TABLE>
<CAPTION>
COMMISSION
TERM(A) RATE(B)
-----------
<S> <C>
More than 9 months but less than 1 year...............
From 1 year but less than 18 months...................
From 18 months but less than 2 years..................
From 2 years but less than 3 years....................
From 3 years but less than 4 years....................
From 4 years but less than 5 years....................
From 5 years but less than 6 years....................
From 6 years but less than 7 years....................
From 7 years but less than 10 years...................
From 10 years but less than 15 years..................
From 15 years but less than 20 years..................
From 20 years to 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
Indenture), 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.
</TABLE>
A-1
<PAGE> 21
EXHIBIT B
The following terms, if applicable, shall be agreed to by the Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $
(or principal amount of ----------------
foreign currency)
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
If Floating Rate Note:
Base Rate or Rates (or the method of calculating the Base Rate or
Rates):
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Index Maturity:
Interest Determination Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent (if other than the Trustee):
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Stated Maturity:
Purchase Price: %
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-1
<PAGE> 22
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 , 1995 (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
Notes, Series C, 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 in the consolidated financial condition 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 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
, 19 .
------------------------------------
Name:
Title:
<PAGE> 23
APPENDIX II
FORM OF RELIANCE LETTER OF COUNSEL
, 19
Re: Occidental Petroleum Corporation Medium-Term Notes, Series C
Dear Sirs:
I have delivered an opinion to you, dated , 1995, as counsel
to Occidental Petroleum Corporation (the "Company"), pursuant to Section 5(a) of
the Distribution Agreement, dated , 1995 (the "Distribution
Agreement"), between the Company and [insert Agents]. You may continue to rely
upon such opinion (other than the matters covered by Section 5(a)(xi) thereof,
as to which no opinion is expressed) 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,
<PAGE> 24
EXHIBIT C
OCCIDENTAL PETROLEUM CORPORATION
MEDIUM-TERM NOTES, SERIES C
ADMINISTRATIVE PROCEDURES
------------------------
, 1995
The administrative procedures and specific terms of the offering of
Medium-Term Notes, Series B (the "Notes") on a continuous basis by Occidental
Petroleum Corporation (the "Issuer") pursuant to the Distribution Agreement,
dated , 1995 (the "Distribution Agreement"), between the Issuer
and each of [Insert Agents] (each an "Agent") are explained below. In the
Distribution Agreement, the Agents have agreed to use their best efforts to
solicit offers to purchase the Notes. Each Agent, as principal, may purchase
Notes for its own account pursuant to the terms and settlement details of a
terms agreement entered into between the Issuer and such Agent, as contemplated
by the Distribution Agreement. In the Distribution Agreement, the Issuer
reserves the right to sell Notes directly on its own behalf.
Each Note will be issued under an indenture between the Issuer and The Bank
of New York, as trustee, (the "Trustee"), dated as of May 1, 1995 (the
"Indenture", which term, for purposes hereof, shall include the Officers'
Certificate (the "Officers' Certificate") delivered from time to time pursuant
to Sections 201 and 301 of the Indenture establishing the terms of the Note),
relating to senior debt securities of the Issuer. Notes will bear interest at
fixed rates ("Fixed Rate Notes"), floating rates ("Floating Rate Notes") or will
not bear interest. Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Owners of beneficial
interests in a Global Security will be entitled to physical delivery of
Certificated Notes equal in principal amount to their respective beneficial
interests only under certain limited circumstances.
The Trustee will act as Paying Agent for the payment of principal of and
interest on the Notes and will perform, as Paying Agent, unless otherwise
specified in the Notes, the Indenture or herein, the other duties specified
herein. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof. Any
administrative responsibilities, document control and record-keeping functions
to be performed by the Issuer will be performed by its Treasury Department. To
the extent that the procedures set forth herein conflict with any provision of
the Notes (which, in the case of Book-Entry Notes shall be the related Global
Security), the Indenture or the Distribution Agreement, the relevant provisions
of the Notes, the Indenture or the Distribution Agreement shall be controlling.
Unless otherwise defined herein, terms defined in the Indenture, the Officers'
Certificates or the Notes shall be used herein as therein defined.
Upon the agreement of the Company, the Trustee and the Agent or Agents with
respect to a particular issue of Notes, subject to the terms of the Indenture,
the terms and procedures with respect to such issue of Notes may be varied from
those set forth herein.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Issuer and the Trustee to DTC dated as of , 1995, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated
, and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
1
<PAGE> 25
ISSUANCE: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Issuer will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
$150,000,000 principal amount of all such Notes that
have the same Original Issue Price, Stated Maturity,
Earliest Redemption Date, Redemption Price and other
redemption provisions, if any, Purchase Date or Dates
and Purchase Price or Prices, if any, Interest Payment
Dates, Regular Record Dates, Interest Payment Period,
Original Issue Discount, if any, Yield to Maturity, if
applicable, and, additionally, in the case of Fixed Rate
Notes, interest rate and, in the case of Floating Rate
Notes, Initial Interest Rate, Base Rate or Rates, Index
Maturity, Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier, if any, Minimum Interest
Rate, if any, and Maximum Interest Rate, if any
(collectively the "Terms"). Each Global Security will be
dated and issued as of the date of its authentication by
the Trustee. Each Global Security will bear interest
from the later of the Original Issue Date specified
therein or from the most recent Interest Payment Date
with respect to such Global Security (or Predecessor
Security) to which interest has been paid or duly
provided for (such later date being herein referred to
as a "Global Interest Accrual Date"). Book-Entry Notes
may only be denominated and payable in U.S. dollars. No
Global Security will represent any Certificated Note.
IDENTIFICATION NUMBERS: The Issuer has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers), which series
consists of approximately 900 CUSIP numbers (of which
766 remained unassigned as of , 1995) and
relates to Global Securities representing the Book-Entry
Notes. The Issuer has obtained from the CUSIP Service
Bureau a written list of such series of reserved CUSIP
numbers and has delivered to the Trustee and DTC such
written list of 766 unassigned CUSIP numbers. The Issuer
will assign CUSIP numbers to Global Securities as
described under Settlement Procedure "B" below. DTC will
notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Issuer has assigned to Global
Securities. At any time when fewer than 100 of the
reserved CUSIP numbers of a series remain unassigned to
Global Securities, the Trustee will notify the Issuer
and, if the Issuer deems necessary, it will reserve
additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Issuer shall deliver
a list of such additional CUSIP numbers to the Trustee
and DTC.
REGISTRATION: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register
maintained under the Indenture. The beneficial owner of
a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such Note, the
"Participants") to act as agent or agents for such owner
in connection with the book-entry system maintained by
DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such
Participants, a credit balance with respect to such Note
in the account of such Participants. The ownership
interest of such beneficial owner in such Note will be
recorded through the records of such Participants or
through the separate records of such Participants and
one or more indirect participants in DTC.
2
<PAGE> 26
TRANSFERS: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
EXCHANGES: At the request of the Issuer, the Trustee shall deliver
to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities
that represent Book-Entry Notes having the same Terms
and for which interest has been paid to the same date,
(ii) a date, occurring at least 30 days after such
written notice is delivered and at least 30 days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Issuer, to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date
and the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On
the specified exchange date, the Trustee will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number, and the CUSIP numbers of
the exchanged Global Securities will, in accordance with
CUSIP Service Bureau customary procedures, be cancelled
and not immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged
exceed $150,000,000 in aggregate principal amount, one
Global Security will be authenticated and issued to
represent each $150,000,000 of principal amount of the
exchanged Global Securities and an additional Global
Security will be authenticated and issued to represent
any remaining principal amount of such Global Securities
(see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date not less than
nine months after the settlement date for such Note.
NOTICE OF REDEMPTION
DATES: In the case of a full redemption of all Book-Entry Notes
represented by a single Global Security, the Trustee
will notify DTC not more than 60 but not less than 30
days prior to the Redemption Date with respect to such
Global Security, of the CUSIP number of such Global
Security, the Redemption Date and the Redemption Price.
In the case of a redemption of less than all Book-Entry
Notes represented by a single Global Security, the
Trustee will notify DTC not more than 2 business days
before 60 days, but not less than 2 business days before
30 days, prior to the Redemption Date with respect to
such Global Security, of the CUSIP number of such Global
Security, the Redemption Date and the Redemption Price.
NOTICE OF PURCHASE
DATES: In the case of any Global Security having a Purchase
Date or Dates specified therein, the Trustee will notify
DTC, upon the earlier of 60 days prior to each such
Purchase Date or 5 days prior to the first date on which
a Purchase Notice with respect to such Purchase Date may
be delivered to the Trustee, of the CUSIP number of such
Global Security, the first and last date on which a
Purchase Notice with respect to such Purchase Date may
be delivered to the Trustee, the Purchase Date and the
Purchase Price.
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<PAGE> 27
DENOMINATIONS: Book-Entry Notes will be sold in denominations of $1,000
and any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be issued in
denominations of $1,000 and any amount in excess thereof
that is an integral multiple of $1,000, up to a maximum
denomination of $150,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence, be
represented by a single Global Security, then one Global
Security will be issued to represent each $150,000,000
principal amount of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent
any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
INTEREST: General. Interest on each Book-Entry Note will accrue
from the Global Interest Accrual Date of the Global
Security representing such Note and will be paid on the
Interest Payment Dates of the Global Security
representing such Book-Entry Note. In the case of a
Global Security originally issued between a Regular
Record Date and the related Interest Payment Date or on
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date immediately
following the next Regular Record Date. Each payment of
interest on a Global Security will include interest
accrued to but excluding the Interest Payment Date or
Maturity. See "Calculation of Interest" below. Interest
payable at the Maturity of a Book-Entry Note will be
payable to the Person to whom the principal of such Note
is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message
described under Settlement Procedure "C" below in order
to include the amount of any interest payable and
certain other information regarding any Global Security
in the appropriate weekly supplement to the Corporate
Registered Bond Interest Record published by Standard &
Poor's Corporation.
Regular Record Dates. Unless otherwise specified in the
applicable Global Security, the Regular Record Date with
respect to Fixed Rate Book-Entry Notes shall be the
January 15 or July 15, as the case may be, next
preceding the applicable Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for Floating Rate Book-Entry Notes shall be the
fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
Fixed Rate Book-Entry Notes. Unless otherwise specified
in the applicable Global Security, interest payments on
Fixed Rate Book-Entry Notes will be made semiannually on
February 1 and August 1 of each year and at Maturity,
subject to the exceptions specified in "Payments of
Principal and Interest" below.
Floating Rate Book-Entry Notes. Interest payments will
be made on Floating Rate Book-Entry Notes monthly,
quarterly, semiannually or annually of each year, as
specified in the related Global Security, and at
Maturity. Unless otherwise specified in the applicable
Global Security and subject to the exceptions specified
in "Payments of Principal and Interest" below, interest
will be payable, in the case of Floating Rate Book-Entry
Notes which reset (i) daily, weekly or monthly, on the
third Wednesday of each month; (ii) quarterly, on the
third Wednesday of March, June, September and December
of each year; (iii) semiannually, on the third Wednesday
of each of the two months specified in the Global
Security representing the applicable Book-Entry Note;
and (iv) annually, on the third Wednesday of the month
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<PAGE> 28
specified in the Global Security representing the
applicable Book-Entry Note; and, in each case, at
Maturity.
Notice of Interest Payment and Regular Record Dates. On
the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates (to the extent then
determinable by the Trustee) that will occur with
respect to each Global Security during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date for Floating Rate
Notes, the calculation agent (the "Calculation Agent")
will notify Standard & Poor's Corporation of the
interest rates determined on such Interest Determination
Date.
CALCULATION OF INTEREST:Fixed Rate Book-Entry Notes. Except as otherwise
specified in the applicable Global Securities, interest
on Fixed Rate Book-Entry Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as set
forth in the Global Security representing the applicable
Floating Rate Book-Entry Notes. Except as otherwise
specified in the applicable Global Securities, interest
will be calculated in the case of (a) Commercial Paper
Rate, CD Rate, Federal Funds Rate, LIBOR and Prime Rate
Notes, on the basis of the actual number of days in the
interest period and a 360-day year; and (b) Treasury
Rate Notes, on the basis of the actual number of days in
the interest period and the actual number of days in the
year.
PAYMENTS OF PRINCIPAL
AND INTEREST: Payments of Interest Only. Promptly after each Regular
Record Date, the Trustee will deliver to the Issuer and
DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Security on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and the
total of such amounts. DTC will check the amount payable
on each Global Security on such Interest Payment Date as
shown in the appropriate weekly supplements to the
Corporate Registered Bond Interest Record published by
Standard & Poor's Corporation. On such Interest Payment
Date, the Issuer will pay to the Trustee the total
amount of interest due on such Interest Payment Date
(other than at Maturity), and the Trustee will pay such
amount to DTC at the times and in the manner set forth
below under "Manner of Payment."
If any Interest Payment Date for a Fixed Rate Book-Entry
Note is scheduled to occur on a day that is not a
Business Day with respect to such Fixed Rate Book-Entry
Note, the payment due on such Interest Payment Date will
be made on the following day that is a Business Day with
respect to such Fixed Rate Book-Entry Note, and no
interest shall accrue on the amount payable on such
Interest Payment Date for the period from and after such
Interest Payment Date to such following day that is a
Business Day.
If any Interest Payment Date for a Floating Rate
Book-Entry Note is scheduled to occur on a day that is
not a Business Day with respect to such Floating Rate
Book-Entry Note, such Interest Payment Date will be the
following day that is a Business Day with respect to
such Floating Rate Book-Entry Note; provided, however,
that in the case of a Floating Rate Book-Entry Note
which is a LIBOR Note, if such following day that is a
Business Day is in
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<PAGE> 29
the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding day that
is a Business Day.
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal and interest
to be paid on each Global Security either maturing at
Stated Maturity or maturing (in whole or in part) on a
Redemption Date or Purchase Date in the following month
(to the extent then determinable by the Trustee). The
Issuer, the Trustee and DTC will confirm the amounts of
such principal and interest payments with respect to
each such Global Security on or about the fifth Business
Day preceding the Maturity of such Global Security. The
Issuer will pay to The Bank of New York, as the Paying
Agent, the principal amount of such Global Security,
together with interest due at such Maturity. The Paying
Agent will pay such amounts to DTC at the times and in
the manner set forth under "Manner of Payment" below. If
any Maturity of a Global Security representing
Book-Entry Notes is not a Business Day, the payment due
on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Maturity.
Promptly after payment to DTC of the principal and
interest due at the Maturity of such Global Security,
the Trustee will cancel such Global Security in
accordance with the terms of the Indenture, deliver to
the Issuer an appropriate debit advice and return to the
Issuer all such cancelled Global Securities; provided,
however, that in the event only a portion of a Global
Security shall have been redeemed or purchased by the
Issuer, the Trustee will exchange such Global Security
for two Global Securities, one of which shall represent
the portion of the original Global Security which was so
redeemed or purchased and shall be cancelled immediately
after issuance and the other of which shall represent
the remaining portion of the original Global Security
which was not so redeemed or purchased and shall bear
the CUSIP number of the original Global Security. On the
first Business Day of each month, the Trustee will
deliver to the Issuer by facsimile transmission a
written statement, indicating the total principal amount
of Outstanding Global Securities for which it serves as
trustee as of the immediately preceding Business Day.
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Maturity shall be paid by the Issuer
to the Trustee in funds available for use by the Trustee
as of 9:30 a.m. (New York City time) or in any event not
later than 12:00 noon (New York City time) on such date.
The Issuer will make such payment on such Global
Securities by wire transfer to the Trustee. Prior to
10:00 a.m. (New York City time) on each Maturity date or
as soon as possible thereafter following the receipt of
funds, the Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC, each
payment of interest and principal due on a Global
Security on such date. On each Interest Payment Date,
interest payments shall be made to DTC in same day funds
in accordance with existing arrangements between the
Trustee and DTC. Thereafter on each such date, DTC will
pay, in accordance with its SDFS operating procedures
then in effect, such amounts in funds available for
immediate use to the respective Participants in whose
names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. Neither the Issuer (either as Issuer
or as Paying Agent) nor the Trustee shall have any
responsibility or liability for the
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<PAGE> 30
payment by DTC to such Participants of the principal of
and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC
or other Person responsible for forwarding payments and
materials directly to the beneficial owner of such Note.
ACCEPTANCE AND
REJECTION OF OFFERS: The Issuer has the sole right to accept offers to
purchase Book-Entry Notes and may reject any such offer
in whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Book-Entry Notes received by it in whole or in part.
Each Agent will advise the Issuer promptly by telephone
or by facsimile transmission of all offers to purchase
Book-Entry Notes received by such Agent, other than
those rejected by it.
SETTLEMENT: The receipt by the Issuer of immediately available funds
in payment for a Book-Entry Note and the authentication
and issuance of the Global Security representing such
Note shall constitute "settlement" with respect to such
Note. Each offer accepted by the Issuer will be settled
on the fifth Business Day following acceptance of such
offer pursuant to the timetable for settlement set forth
below, unless the Issuer and the purchaser agree to
settlement on another day which shall be no earlier than
the Business Day following acceptance of such offer.
SETTLEMENT PROCEDURES: In the event of a purchase of Book-Entry Notes by one or
more of the Agents, as principal, appropriate settlement
details, if different from those set forth below, will
be set forth in an applicable Terms Agreement to be
entered into between such Agent or Agents and the Issuer
pursuant to the Distribution Agreement. Settlement
Procedures with regard to each Book-Entry Note sold by
the Issuer through an Agent, as agent, shall be as
follows:
A. Such Agent will advise the Issuer by facsimile
transmission of the following settlement
information:
1. Whether the form of the Global Security
representing such Note is the Form of Global
Fixed Rate Registered Security, Form of Global
Floating Rate Registered Security, Form of
Global Fixed Rate Registered Security (with Put
Option), Form of Global Floating Rate
Registered Security (with Put Option), Form of
Global Zero Coupon Registered Security or Form
of Global Discount Registered Security.
2. Principal amount.
3. Stated Maturity.
4. If such Note is a Fixed Rate Note, the interest
rate.
If such Note is a Floating Rate Note, the
following:
a) Base Rate or Base Rates (or the method
of calculating the Base Rate or Base
Rates);
b) Initial Interest Rate;
c) Spread and/or Spread Multiplier, if
any;
d) Interest Reset Dates;
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<PAGE> 31
e) Interest Reset Period;
f) Interest Payment Dates;
g) Index Maturity;
h) Interest Payment Period;
i) Calculation Agent (if other than The
Bank of New York);
j) Maximum Interest Rate, if any;
k) Minimum Interest Rate, if any; and
l) Interest Determination Dates.
5. Earliest Redemption Date, Redemption Price and
other redemption provisions, if any, and
Purchase Date or Dates and Purchase Price or
Prices, if any.
6. Settlement date.
7. Original Issue Price.
8. Original Issue Discount, if any, and Yield to
Maturity, if applicable.
9. Agent's commission, determined as provided in
Section 2 of the Distribution Agreement between
the Issuer and such Agent.
10. Additional terms or provisions of such Note, if
any.
B. The Issuer will assign a CUSIP number to the Global
Security representing such Note and then advise the
Trustee by telephone (confirmed in writing at any
time on the same date) or facsimile transmission of
the information set forth in Settlement Procedure
"A" above, such CUSIP number and the name of such
Agent. The Issuer will also notify the Agent of such
CUSIP number by telephone as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, such
Agent, and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A" above.
2. Numbers of the participant accounts maintained
by DTC on behalf of the Trustee and the Agent.
3. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
4. Initial Interest Payment Date for such Note,
Regular Record Date and amount of interest
payable on such Interest Payment Date.
5. Interest Payment Period.
6. CUSIP number of the Global Security representing
such Note.
7. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time).
D. The Issuer will deliver to the Trustee a pre-printed
Global Security to represent such Note, in a form
that has been approved by the Issuer, the Agents and
the Trustee.
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<PAGE> 32
E. The Trustee will complete and authenticate the
Global Security representing such Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to such Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission. The entry
of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated
and (ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC.
H. Such Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such
Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account
of such Agent for any amount equal to the price of
such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" above will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
J. The Trustee will credit to an account of the Issuer
designated from time to time by the Issuer to the
Trustee funds available for immediate use in the
amount transferred to the Trustee in accordance
with Settlement Procedure "G" above.
K. The Trustee will retain the Global Security
representing such Note and will send a photocopy
thereof to the Issuer by first-class mail. Monthly,
the Trustee will send to the Issuer a written
statement, setting forth (i) the principal amount of
Notes Outstanding under the Indenture as of the date
of such report, (ii) a brief description of any
sales of which the Issuer has advised the Trustee
but which have not yet been settled and (iii) a
description of issuances and retirements of,
payments on and other activity relating to the Notes
during the related month.
L. Such Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institution delivery system or by mailing a written
confirmation to such purchaser.
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<PAGE> 33
SETTLEMENT PROCEDURES
TIMETABLE: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Issuer for settlement on the
first Business Day after the sale date, Settlement
Procedures "A" through "L" above shall be completed as
soon as possible but not later than the respective times
(New York City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
---------- ----
<S> <C>
A...................... 11:00 a.m. on the sale date
B...................... 12:00 Noon on the sale date
C...................... 2:00 p.m. on the sale date
D...................... 3:00 p.m. on the sale date
E...................... 9:00 a.m. on settlement date
F...................... 10:00 a.m. on settlement date
G-H.................... 2:00 p.m. on settlement date
I...................... 4:45 p.m. on settlement date
J-L.................... 5:00 p.m. on settlement date
</TABLE>
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedure "A" shall be
completed as soon as practicable but no later than 11:00
a.m. on the first Business Day after the sale date and
Settlement Procedures "B" and "C" shall be completed as
soon as practicable but no later than 12:00 noon and
2:00 p.m., respectively, on the first Business Day after
the sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as
soon as such rate has been determined but no later than
12:00 noon and 2:00 p.m., respectively, on the second
Business Day before the settlement date. Settlement
Procedures "D" through "L" shall be completed as soon as
possible thereafter but not later than the respective
times (New York City time) set forth in the preceding
table, except that Settlement Procedures "I" through "L"
are subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee will deliver to DTC, through
DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
FAILURE TO SETTLE: If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "G", the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that
the Trustee's participant account contains a principal
amount of the Global Security representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Security, the Trustee will mark such Global
Security "cancelled", make appropriate entries in the
Trustee's records and send such cancelled Global
Security to the Issuer. The CUSIP number assigned to
such Global Security shall, in accordance with CUSIP
Service Bureau customary procedures, be cancelled and
not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security,
the
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<PAGE> 34
Trustee will exchange the Global Security for two Global
Securities, one of which shall represent such Book-Entry
Note or Notes for which such withdrawal message has been
processed and shall be cancelled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the applicable Participants with respect
to such Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants and, in
turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "H" and "G", respectively. Thereafter, the
Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph. If
such failure shall have occurred for any reason other
than default by the applicable Agent in the performance
of its obligations hereunder or under the Distribution
Agreement, the Issuer will reimburse such Agent on an
equitable basis for its loss of the use of funds during
the period when the funds were credited to the account
of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book- Entry Note, DTC may take
such actions as it deems appropriate in accordance with
its SDFS operating procedures then in effect in order to
reverse the orders entered into DTC's Participant
Terminal System pursuant to Settlement Procedures "H"
and "G", respectively. In the event of a failure to
settle with respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a Global
Security, the Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the
authentication and issuance of a Global Security
representing the other Book-Entry Notes to have been
represented by such Global Security and will make
appropriate entries in its records.
PROCEDURE FOR POSTINGS: The Issuer will periodically contact one or more Agents
for recommended interest rates, coupons or spreads
("postings") with respect to Notes being offered. When
the Issuer has determined or changed its postings with
respect to Notes being offered, it will promptly advise
the Agents. At such times as the Issuer is not posting,
the Agents will not solicit firm offers but may record
"indications of interest" only.
PRICING SUPPLEMENTS: Within five Business Days after any sale of Notes, the
Issuer will file or transmit for filing with the
Securities and Exchange Commission (the "Commission"),
in compliance with Rule 424(b)(3) of the rules and
regulations of the Commission promulgated under the
Securities Act of 1933, as amended, and Item 309 of
Regulation S-T of the Commission, a copy of a pricing
supplement to the Prospectus (as defined in the
Distribution Agreement) relating to such Notes that
reflects the applicable interest rates and other terms
(the "Pricing Supplement") and will deliver a copy of
such Pricing Supplement to each of the Agents.
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<PAGE> 35
SUSPENSION OF
SOLICITATION,
AMENDMENT OR
SUPPLEMENT: The Issuer may instruct the Agents to suspend
solicitation of purchases of Book-Entry Notes at any
time. Upon receipt of such instructions, each Agent will
forthwith suspend such solicitations until such time as
it has been advised by the Issuer that such
solicitations may be resumed. The Issuer will,
consistent with its obligations under the Distribution
Agreement, promptly advise each Agent and the Trustee
whether orders outstanding at the time such Agent
suspends solicitation may be settled and whether copies
of the Prospectus, as in effect at the time of the
suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the
settlement of such orders. The Issuer will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that the
Issuer determines that such orders may not be settled or
that copies of such Prospectus and Pricing Supplement
may not be so delivered.
DELIVERY OF PROSPECTUS: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any, must be provided
to a purchaser by the applicable Agent prior to or at
the time of the earlier of (a) the written confirmation
of a sale sent to a purchaser of Book-Entry Notes or his
Agent, and (b) the date of settlement of any such
Book-Entry Notes (see Settlement Procedures).
ADVERTISING COSTS: The Issuer will determine with the Agents the amount and
nature of advertising that may be appropriate in
offering the Notes. Advertising expenses approved in
writing by the Issuer in connection with the
solicitation of purchases of the Notes from the Issuer
will be paid by the Issuer.
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<PAGE> 36
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Security Registrar in connection with the
Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear interest from the later of
the Original Issue Date specified therein or from the
most recent Interest Payment Date with respect to such
Certificated Note (or Predecessor Security) to which
interest has been paid or duly provided for (such later
date being herein referred to as a "Certificated
Interest Accrual Date").
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFERS AND
EXCHANGES: A Certificated Note may be presented for transfer or
exchange at the Corporate Trust Office of the Trustee.
Certificated Notes will be exchangeable for other
Certificated Notes having identical Terms but different
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
MATURITIES: Each Certificated Note will mature on a date not less
than nine months from the settlement date for such Note.
DENOMINATIONS: Certificated Notes will be issued in denominations of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
INTEREST: General. Interest on each Certificated Note will accrue
from the Certificated Interest Accrual Date of such
Note. In the case of a Certificated Note originally
issued between a Regular Record Date and the related
Interest Payment Date or on an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next Regular Record Date.
Each payment of interest on a Certificated Note will
include interest accrued to but excluding the Interest
Payment Date or Maturity. See "Calculation of Interest"
below. Interest will be payable to the person in whose
name a Certificated Note is registered on the Security
Register at the close of business on the Regular Record
Date next preceding the applicable Interest Payment
Date; provided, however, interest payable at Maturity
will be payable to the Person to whom principal of such
Certificated Note is payable.
Regular Record Date. Unless otherwise specified in the
applicable Certificated Note, the Regular Record Date
with respect to Fixed Rate Certificated Notes shall be
the January 15 or July 15, as the case may be, next
preceding the applicable Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for Floating Rate Certificated Notes shall be the
fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Certificated Note, interest
payments on Fixed Rate Certificated Notes will be made
semiannually on February 1 and August 1 of each year and
at Maturity, subject to the exceptions specified in
"Payments of Principal and Interest" below.
Floating Rate Certificated Notes. Interest payments will
be made on Floating Rate Certificated Notes monthly,
quarterly, semiannually or annually of each year, as
specified in the related Note, and at maturity. Unless
otherwise specified in the applicable Certificated Note
and subject to the exceptions specified in "Payments of
Principal and Interest" below, interest will be
13
<PAGE> 37
payable, in the case of Floating Rate Certificated Notes
which reset (i) daily, weekly or monthly, on the third
Wednesday of each month; (ii) quarterly, on the third
Wednesday of March, June, September and December of each
year; (iii) semiannually, on the third Wednesday of each
of the two months specified in the applicable
Certificated Note; and (iv) annually, on the third
Wednesday of the month specified in the applicable
Certificated Note and, in each case, at Maturity.
CALCULATION OF INTEREST:Fixed Rate Certificated Notes. Unless otherwise
specified in the applicable Certificated Note, interest
on Fixed Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined as
set forth in the applicable Notes. The Issuer and the
Trustee will confirm the amount of the initial interest
payment due on any Floating Rate Certificated Note for
which the initial Interest Period is shorter or longer
than the Index Maturity. Promptly after each Interest
Determination Date for Floating Rate Certificated Notes,
the Calculation Agent will notify Standard & Poor's
Corporation of the interest rates determined on such
Interest Determination Date. Unless otherwise specified
in the applicable Certificated Note, interest will be
calculated in the case of (a) Commercial Paper Rate, CD
Rate, Federal Funds Rate, LIBOR and Prime Rate
Certificated Notes, on the basis of the actual number of
days in the interest period and a 360-day year; and (b)
Treasury Rate Notes, on the basis of the actual number
of days in the interest period and the actual number of
days in the year.
PAYMENTS OF PRINCIPAL
AND INTEREST: The Trustee will pay the principal amount of each
Certificated Note at Maturity upon presentation of such
Note to the Trustee. Such payment, together with payment
of interest due at Maturity of such Note, will be made
in funds available for immediate use by the Holder of
such Note. Certificated Notes presented to the Trustee
at Maturity for payment will be cancelled by the Trustee
in accordance with the terms of the Indenture and
returned to the Issuer. All interest payments on a
Certificated Note (other than interest due at Maturity)
will be made by check drawn on the Trustee (or another
Person appointed by the Trustee) and mailed by the
Trustee to the Person entitled thereto as provided in
such Note; provided, however, that the holder of
$10,000,000 or more of Certificated Notes paying
interest on the same Interest Payment Date will be
entitled to receive payment by wire transfer but only if
appropriate payment instructions have been received in
writing by the Trustee not later than the Regular Record
Date or Special Record Date, as the case may be, for
such payment. Following each Regular Record Date and
Special Record Date, the Trustee will furnish the Issuer
with a list of interest payments to be made on the
following Interest Payment Date for each Certificated
Note and in total for all Certificated Notes. Interest
at Maturity will be payable to the Person to whom the
payment of principal is payable. The Trustee will
provide monthly to the Issuer lists of principal and
interest to be paid on Certificated Notes maturing in
the next month. The Trustee will be responsible for
withholding taxes on interest paid on Certificated Notes
as required by applicable law. On the first Business Day
of each month, the Trustee will deliver to the Issuer by
facsimile transmission a written statement,
14
<PAGE> 38
indicating the total principal amount of Outstanding
Certificated Notes for which it serves as trustee as of
the immediately preceding Business Day.
If any Interest Payment Date for a Fixed Rate
Certificated Note is scheduled to occur on a day that is
not a Business Day with respect to such Fixed Rate
Certificated Note, the payment due on such Interest
Payment Date will be made on the following day that is a
Business Day with respect to such Fixed Rate
Certificated Note, and no interest shall accrue on the
amount payable on such Interest Payment Date for the
period from and after such Interest Payment Date to such
following day that is a Business Day.
If any Interest Payment Date for a Floating Rate
Certificated Note is scheduled to occur on a day that is
not a Business Day with respect to such Floating Rate
Certificated Note, such Interest Payment Date will be
the following day that is a Business Day with respect to
such Floating Rate Certificated Note; provided, however,
that in the case of a Floating Rate Certificated Note
which is a LIBOR Note, if such following day that is a
Business Day is in the next succeeding calendar month,
such Interest Payment Date will be the immediately
preceding day that is a Business Day.
If the date of Maturity of a Certificated Note is
scheduled to occur on a day that is not a Business Day
with respect to such Certificated Note, the payment due
at Maturity will be made on the following day that is a
Business Day with respect to such Certificated Note, and
no interest shall accrue on the amount payable at
Maturity for the period from and after the date of
Maturity.
ACCEPTANCE AND
REJECTION OF OFFERS: The Issuer has the sole right to accept offers to
purchase Certificated Notes and may reject any offer in
whole or in part. Each Agent may, in its discretion
reasonably exercised, reject any offer to purchase
Certificated Notes received by it in whole or part. Each
Agent will advise the Issuer promptly by telephone or
facsimile transmission of all offers to purchase
Certificated Notes received by such Agent, other than
those rejected by it.
SETTLEMENT: The receipt by the Issuer of immediately available funds
in exchange for an authenticated Certificated Note
delivered to the selling Agent and such Agent's delivery
of such Note against receipt of immediately available
funds shall constitute "settlement" with respect to such
Note. Each offer accepted by the Issuer will be settled
on the fifth Business Day following acceptance of such
offer pursuant to the timetable for settlement set forth
below, unless the Issuer and the purchaser agree to
settlement on another day; provided, however, that the
Issuer will notify the Trustee at least twenty-four
hours prior to the time of settlement.
SETTLEMENT PROCEDURES: In the event of a purchase of Certificated Notes by one
or more of the Agents, as principal, appropriate
settlement details, if different from those set forth
below, will be set forth in an applicable Terms
Agreement to be entered into between such Agent or
Agents and the Issuer pursuant to the Distribution
Agreement.
15
<PAGE> 39
Settlement Procedures with regard to each Certificated
Note sold by the Issuer through an Agent, as agent,
shall be as follows:
A. Such Agent will advise the Issuer by facsimile
transmission of the following settlement
information:
1. Whether the form of such Certificated Note is
the Form of Definitive Fixed Rate Registered
Security, Form of Definitive Floating Rate
Registered Security, Form of Definitive Fixed
Rate Registered Security (with Put Option),
Form of Definitive Floating Rate Registered
Security (with Put Option), Form of Definitive
Zero Coupon Registered Security or Form of
Definitive Discount Registered Security.
2. Name in which such Note is to be registered
(the "Registered Owner").
3. Address of the Registered Owner and address for
payment of principal and interest.
4. Taxpayer identification or Social Security
number of the Registered Owner (if available).
5. Principal amount.
6. Stated Maturity.
7. If such Note is a Fixed Rate Note, the interest
rate.
If such Note is a Floating Rate Note, the
following:
a) Base Rate or Base Rates (or the method
of calculating the Base Rate or
Rates);
b) Initial Interest Rate;
c) Spread and/or Spread Multiplier, if
any;
d) Interest Reset Dates;
e) Interest Reset Period;
f) Interest Payment Dates;
g) Index Maturity;
h) Interest Payment Period;
i) Calculation Agent (if other than The
Bank of New York);
j) Maximum Interest Rate, if any;
k) Minimum Interest Rate, if any; and
l) Interest Determination Dates.
8. Earliest Redemption Date, Redemption Price and
other redemption provisions, if any, and
Purchase Date or Dates and Purchase Price or
Prices, if any.
9. Settlement date.
10. Original Issue Price.
11. Original Issue Discount, if any, and Yield to
Maturity, if applicable.
16
<PAGE> 40
12. Agent's commission, determined as provided in
Section 2 of the Distribution Agreement between
the Issuer and such Agent.
13. Additional terms or provisions of such Note, if
any.
B. The Issuer will advise the Trustee by telephone
(confirmed in writing at any time on the same date)
or facsimile transmission of the information set
forth in Settlement Procedure "A" above and the name
of such Agent.
C. The Issuer will deliver (if not previously
delivered) to the Trustee a pre-printed four-ply
packet for such Note, which packet will contain the
following documents in forms that have been approved
by the Issuer, the Agents and the Trustee:
1. Note with customer confirmation.
2. Stub One -- For the Trustee.
3. Stub Two -- For the Agent.
4. Stub Three -- For the Issuer.
D. The Trustee will complete and authenticate such Note
and deliver it (with the confirmation) and Stubs One
and Two to such Agent, and such Agent will
acknowledge receipt of the Note by stamping or
otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against
such acknowledgement of receipt and evidence that
instructions have been given by such Agent for
payment to the account of the Issuer at the Trustee,
in funds available for immediate use, of an amount
equal to the price of such Note less Agent's
commission. In the event that the instructions given
by such Agent for payment to the account of the
Issuer are revoked, the Issuer as promptly as
possible wire transfer to the account of such Agent
an amount of immediately available funds equal to
the amount of such payment and such Agent will
return such Note to the Trustee.
E. Such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will obtain
the acknowledgement of receipt of such Note by
retaining Stub Two.
F. The Trustee will retain Stub One and will send Stub
Three to the Issuer by first-class mail. Monthly,
the Trustee will send to the Issuer a written
statement, setting forth (i) the principal amount of
the Notes Outstanding under the Indenture as of the
date of such report, (ii) a brief description of any
sales of which the Issuer has advised the Trustee
but which have not yet been settled and (iii) a
description of issuances and retirements of,
payments on and other activity relating to the Notes
during the related month.
17
<PAGE> 41
SETTLEMENT PROCEDURES
TIMETABLE: For offers of Certificated Notes solicited by an Agent,
as agent, and accepted by the Issuer, Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York
City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
---------- ----
<S> <C>
A...................... 3:00 p.m. on day before settlement date
B...................... 4:00 p.m. on day before settlement date
C-D.................... 2:15 p.m. on settlement date
E...................... 3:00 p.m. on settlement date
F...................... 5:00 p.m. on settlement date
</TABLE>
FAILURE TO SETTLE: If a purchaser fails to accept delivery of and make
payment for any Certificated Note, the selling Agent
will notify the Issuer and the Trustee by telephone and
return such Note to the Trustee. Upon receipt of such
Note, the Issuer will immediately wire transfer to the
account of the Agent an amount equal to the amount
previously credited thereto in respect of such Note.
Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the day
following the settlement date. If the failure shall have
occurred for any reason other than a default by the
applicable Agent in the performance of its obligations
hereunder and under the Distribution Agreement, the
Issuer will reimburse such Agent on an equitable basis
for its loss of the use of the funds during the period
when they were credited to the account of the Issuer.
Immediately upon receipt of the Certificated Note in
respect of which such failure occurred, the Trustee will
mark such Note "cancelled", make appropriate entries in
the Trustee's records and send such cancelled Note to
the Issuer.
PROCEDURE FOR POSTINGS: The Issuer will periodically contact one or more Agents
for recommended postings with respect to Certificated
Notes being offered. When the Issuer has determined or
changed its postings with respect to Certificated Notes
being offered, it will promptly advise the Agents. At
such times as the Issuer is not posting, the Agents will
not solicit firm offers but may record "indications of
interest" only.
PRICING SUPPLEMENTS: Within five Business Days after any sale of Certificated
Notes, the Issuer will file or transmit for filing with
the Commission in compliance with Rule 424(b)(3) of the
rules and regulations of the Commission promulgated
under the Securities Act of 1933, as amended, and Item
309 of Regulation S-T of the Commission, a copy of a
Pricing Supplement to the Prospectus relating to such
Notes that reflects the applicable interest rates and
other terms and will deliver a copy of such Pricing
Supplement to each of the Agents.
SUSPENSION OF
SOLICITATION,
AMENDMENT OR
SUPPLEMENT: The Issuer may instruct the Agents to suspend
solicitation of purchases of Certificated Notes at any
time. Upon receipt of such instructions, each Agent will
forthwith suspend such solicitations until such time as
it has been advised by the Issuer that such
solicitations may be resumed. The Issuer will,
consistent with its obligations under the Distribution
Agreement, promptly advise each Agent and the Trustee
whether orders outstanding at the time such Agent
suspends solicitation may be settled and whether copies
of the
18
<PAGE> 42
Prospectus, as in effect at the time of the suspension,
together with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of such
orders. The Issuer will have the sole responsibility for
such decision and for any arrangements that may be made
in the event that the Issuer determines that such orders
may not be settled or that copies of such Prospectus and
Pricing Supplement may not be so delivered.
DELIVERY OF PROSPECTUS: A copy of the most recent Prospectus and of the
applicable Pricing Supplement, if any, must be provided
to a purchaser by the applicable Agent prior to or at
the time of the earlier of (a) the written confirmation
of a sale sent to a purchaser of Certificated Notes or
his agent and (b) the delivery of any such Certificated
Notes to a purchaser or his agent (see Settlement
Procedures).
ADVERTISING COSTS: The Issuer will determine with the Agents the amount and
nature of advertising that may be appropriate in
offering the Certificated Notes. Advertising expenses
approved in writing by the Issuer in connection with the
solicitation of purchases of Certificated Notes from the
Issuer will be paid by the Issuer.
19
<PAGE> 1
EXHIBIT 4
===============================================================================
OCCIDENTAL PETROLEUM CORPORATION
TO
THE BANK OF NEW YORK, TRUSTEE
------------------------
INDENTURE
DATED AS OF MAY 1, 1995
------------------------
SENIOR DEBT SECURITIES
===============================================================================
<PAGE> 2
OCCIDENTAL PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
<S> <C>
sec. 310 (a)(1).............................................. 608
(a)(2).............................................. 608
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(a)(5).............................................. 608
(b) .............................................. 608
610
(c) .............................................. Not Applicable
sec. 311 (a) .............................................. 612
(b) .............................................. 612
(c) .............................................. Not Applicable
sec. 312 (a) .............................................. 701
702(a)
(b) .............................................. 702(b)
(c) .............................................. 702(b)
sec. 313 (a) .............................................. 703
(b)(1).............................................. Not Applicable
(b)(2).............................................. 703
(c) .............................................. 703(b)
(d) .............................................. 703(c)
sec. 314 (a) .............................................. 704, 1009
(b) .............................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 102
(f) .............................................. Not Applicable
sec. 315 (a) .............................................. 601(a)
(b) .............................................. 602
(c) .............................................. 601(b)
(d) .............................................. 601(c)
(d)(1).............................................. 601(c)(1)
(d)(2).............................................. 601(c)(2)
(d)(3).............................................. 601(c)(3)
(e) .............................................. 514
sec. 316 (a) .............................................. 101
(a)(1)(A)........................................... 512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b) .............................................. 508
(c) .............................................. 104(f)
sec. 317 (a)(1).............................................. 503
(a)(2).............................................. 504
(b) .............................................. 1003
sec. 318 (a) .............................................. 107
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
------------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES............................................................. 1
RECITALS OF THE COMPANY............................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act................................................. 2
Affiliate, control.................................. 2
Authorized Newspaper................................ 2
Bearer Security..................................... 3
Board of Directors.................................. 3
Board Resolution.................................... 3
Business Day........................................ 3
Cedel S.A........................................... 3
Commission.......................................... 3
Company............................................. 3
Company Request; Company Order...................... 3
Consolidated Net Tangible Assets.................... 3
Consolidated Subsidiary............................. 4
Corporate Trust Office.............................. 4
Corporation......................................... 4
coupon.............................................. 4
Current Liabilities................................. 4
Defaulted Interest.................................. 4
Depositary.......................................... 4
Discount Security................................... 4
Discounted Rental Value............................. 4
Dollar or $......................................... 5
Euro-clear.......................................... 5
Event of Default.................................... 5
Funded Debt......................................... 5
Holder.............................................. 5
Indebtedness........................................ 5
Indenture........................................... 7
interest............................................ 7
Interest Payment Date............................... 7
Lien................................................ 7
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Maturity............................................ 7
Net Tangible Assets................................. 7
Officers' Certificate............................... 8
Opinion of Counsel.................................. 8
Outstanding......................................... 8
Paying Agent........................................ 9
Periodic Offering................................... 9
Person.............................................. 10
Place of Payment.................................... 10
Predecessor Security................................ 10
principal........................................... 10
Principal Domestic Property......................... 10
Production Payment.................................. 10
Redemption Date..................................... 11
Redemption Price.................................... 11
Registered Security................................. 11
Regular Record Date................................. 11
Responsible Officer................................. 11
Secured Debt........................................ 11
Securities.......................................... 11
Security Register; Security Registrar............... 11
Short-Term Borrowing................................ 11
Special Record Date................................. 12
Stated Maturity..................................... 12
Subsidiary.......................................... 12
Trustee............................................. 12
Trust Indenture Act................................. 12
United States....................................... 12
United States Alien................................. 12
Vice President...................................... 13
SECTION 102. Compliance Certificates and Opinions................ 13
SECTION 103. Form of Documents Delivered to Trustee.............. 14
SECTION 104. Acts of Holders..................................... 14
SECTION 105. Notices, Etc., to Trustee and Company............... 17
SECTION 106. Notice to Holders; Waiver........................... 17
SECTION 107. Conflict with Trust Indenture Act................... 18
SECTION 108. Effect of Headings and Table of Contents............ 18
SECTION 109. Successors and Assigns.............................. 18
SECTION 110. Separability Clause................................. 19
SECTION 111. Benefits of Indenture............................... 19
SECTION 112. Governing Law....................................... 19
</TABLE>
<PAGE> 5
iii
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 113. Legal Holidays...................................... 19
SECTION 114. Language of Notices, Etc............................ 19
ARTICLE TWO
SECURITY FORM
SECTION 201. Forms Generally..................................... 20
SECTION 202. Form of Trustee's Certificate of Authentication..... 21
SECTION 203. Securities in Global Form........................... 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms..................................... 22
SECTION 302. Denominations....................................... 26
SECTION 303. Execution, Authentication, Delivery and Dating...... 26
SECTION 304. Temporary Securities................................ 30
SECTION 305. Registration, Registration of Transfer and
Exchange............................................ 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons............................................. 37
SECTION 307. Payment of Interest; Interest Rights Preserved...... 38
SECTION 308. Persons Deemed Owners............................... 40
SECTION 309. Cancellation........................................ 41
SECTION 310. Computation of Interest............................. 42
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............. 42
SECTION 402. Application of Trust Money.......................... 44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................... 45
SECTION 502. Acceleration of Maturity; Rescission and
Annulment........................................... 47
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................... 48
SECTION 504. Trustee May File Proofs of Claim.................... 49
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons............................... 50
SECTION 506. Application of Money Collected...................... 51
SECTION 507. Limitation on Suits................................. 51
</TABLE>
<PAGE> 6
iv
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest........................................ 52
SECTION 509. Restoration of Rights and Remedies.................. 52
SECTION 510. Rights and Remedies Cumulative...................... 53
SECTION 511. Delay or Omission Not Waiver........................ 53
SECTION 512. Control by Holders of Securities.................... 53
SECTION 513. Waiver of Past Defaults............................. 54
SECTION 514. Undertaking for Costs............................... 54
SECTION 515. Waiver of Usury, Stay or Extension Laws............. 55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................. 55
SECTION 602. Notice of Defaults.................................. 57
SECTION 603. Certain Rights of Trustee........................... 57
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.......................................... 58
SECTION 605. May Hold Securities................................. 59
SECTION 606. Money Held in Trust................................. 59
SECTION 607. Compensation and Reimbursement...................... 59
SECTION 608. Corporate Trustee Required; Eligibility............. 60
SECTION 609. Resignation and Removal; Appointment of Successor... 60
SECTION 610. Acceptance of Appointment by Successor.............. 62
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business............................................ 63
SECTION 612. Preferential Collection of Claims Against Company... 64
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders............................................. 64
SECTION 702. Preservation of Information; Communications to
Holders............................................. 65
SECTION 703. Reports by Trustee.................................. 65
SECTION 704. Reports by Company.................................. 66
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms............................................... 67
SECTION 802. Successor Corporation Substituted................... 67
</TABLE>
<PAGE> 7
v
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders............................................. 68
SECTION 902. Supplemental Indentures with Consent of Holders..... 69
SECTION 903. Execution of Supplemental Indentures................ 71
SECTION 904. Effect of Supplemental Indentures................... 71
SECTION 905. Conformity with Trust Indenture Act................. 71
SECTION 906. Reference in Securities to Supplemental
Indentures.......................................... 71
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest................... 72
SECTION 1002. Maintenance of Office or Agency..................... 72
SECTION 1003. Money for Security Payments to Be Held in Trust..... 74
SECTION 1004. Corporate Existence................................. 75
SECTION 1005. Maintenance of Properties........................... 76
SECTION 1006. Payment of Taxes and Other Claims................... 76
SECTION 1007. Limitation on Liens................................. 76
SECTION 1008. Limitation on Sale and Leaseback Transactions....... 78
SECTION 1009. Statement by Officer as to Compliance; Notice of
Certain Events...................................... 78
SECTION 1010. Waiver of Certain Covenants......................... 79
SECTION 1011. Additional Amounts.................................. 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................ 80
SECTION 1102. Election to Redeem; Notice to Trustee............... 80
SECTION 1103. Selection by Trustee of Securities to be Redeemed... 81
SECTION 1104. Notice of Redemption................................ 81
SECTION 1105. Deposit of Redemption Price......................... 82
SECTION 1106. Securities Payable on Redemption Date............... 82
SECTION 1107. Securities Redeemed in Part......................... 83
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article............................ 84
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.......................................... 84
SECTION 1203. Redemption of Securities for Sinking Fund........... 85
</TABLE>
<PAGE> 8
vi
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called........... 85
SECTION 1302. Call, Notice and Place of Meetings.................. 85
SECTION 1303. Persons Entitled to Vote at Meetings................ 86
SECTION 1304. Quorum; Action...................................... 86
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings............................. 87
SECTION 1306. Counting Votes and Recording Action of Meetings..... 89
TESTIMONIUM......................................................... 90
SIGNATURES AND SEALS................................................ 90
ACKNOWLEDGMENTS..................................................... 91
</TABLE>
<PAGE> 9
INDENTURE, dated as of May 1, 1995, between Occidental Petroleum
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
10889 Wilshire Boulevard, Los Angeles, California 90024, and The Bank of New
York, a New York banking corporation, as trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of one or more series
thereof and the coupons, if any, appertaining thereto, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE> 10
2
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles," with respect to any computation
required or permitted hereunder, shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Whenever successive publications are
required to be made in an Authorized Newspaper, the successive publications may
be made in the same or in different Authorized Newspapers meeting the foregoing
requirements and, in each case, on any Business Day.
<PAGE> 11
3
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," except as otherwise specified as contemplated by Section
301, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order delivered to the Trustee and signed in the name of the Company by its
Chairman of the Board, its President or one of its Vice Presidents and by one of
its other Vice Presidents, its Treasurer, an Assistant Treasurer, its Secretary,
an Assistant Secretary, or, with respect to Sections 303, 304, 305 and 603, any
other employee of the Company named in an Officers' Certificate delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total of the Net Tangible
Assets of the Company and its Consolidated Subsidiaries, included in their
<PAGE> 12
4
financial statements prepared on a consolidated basis in accordance with
generally accepted accounting principles, after eliminating all intercompany
items.
"Consolidated Subsidiary" means any Subsidiary included in the financial
statements of the Company and its Subsidiaries prepared on a consolidated basis
in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office maintained by the Trustee at
which, at any particular time, its corporate trust business principally is
administered, which initially shall be 101 Barclay Street, New York, New York
10286.
"Corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Current Liabilities" means all Indebtedness that may properly be
classified as current liabilities in accordance with generally accepted
accounting principles.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 301 as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Discounted Rental Value" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent (after deducting the amount of
rent to be received by such Person under noncancelable subleases) required to be
paid by such Person under such lease during the remaining noncancelable term
thereof (including any such period for which such lease has been
<PAGE> 13
5
extended or may, at the option of the lessor, be extended), discounted from the
respective due dates thereof to such date at a rate per annum of 11 3/4%. The
net amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
such period, after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, water rates and similar charges. In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. If and to the extent the
amount of any rent during any future period is not definitely determinable under
the lease in question, the amount of such rent shall be estimated in such
reasonable manner as the Board of Directors of the Company may in good faith
determine.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all Indebtedness maturing one year or more from the
date of the creation thereof, all Indebtedness directly or indirectly renewable
or extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the creation thereof, and all Indebtedness under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more, even though such Indebtedness may also conform to
the definition of Short-Term Borrowing.
"Holder," when used with respect to any Security, means, in the case of a
Registered Security, the Person in whose name the Security is registered in the
Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indebtedness," as applied to a Person, means, as of the date on which
Indebtedness is to be determined (a) all items (except items of capital stock or
of surplus or of deferred credits or minority interest in Subsidiaries) which,
in
<PAGE> 14
6
accordance with generally accepted accounting principles in effect from time to
time, would be included in determining total liabilities, as shown on the
liability side of a balance sheet of such Person; (b) all indebtedness secured
by any mortgage on any property or asset owned or held by such Person subject
thereto, whether or not the indebtedness secured thereby shall have been
assumed; and (c) all indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), discounted with recourse, agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect of
which such Person has otherwise become directly or indirectly liable. For the
purpose of computing the Indebtedness of any Person, there shall be excluded any
particular Indebtedness which meets one or more of the following categories:
(i) Indebtedness with respect to which sufficient cash or cash
equivalents or securities shall have been deposited in trust to provide for
the full payment, redemption or satisfaction of the principal of, premium,
if any, and interest to accrue on, such Indebtedness to the stated maturity
thereof or to the date of prepayment thereof, as the case may be, and, as a
result of such deposit, such particular Indebtedness, in accordance with
generally accepted accounting principles, shall no longer be required to be
reported on a balance sheet of such Person as a liability, and such cash or
cash equivalents or securities shall not be required to be reported as an
asset;
(ii) Indebtedness which is not classified as Indebtedness under clause
(a) of the definition of Indebtedness and which arises from any commitment
of such Person relating to pipeline operations to pay for property or
services substantially without regard to the non-delivery of such property
or the non-furnishing of such services; or
(iii) Indebtedness which is not classified as Indebtedness under
clause (a) of the definition of Indebtedness and which is payable solely
out of certain property or assets of such Person, or is secured by a
mortgage on certain property or assets owned or held by such Person, in
either case without any further recourse to or liability of such Person, to
the extent such Indebtedness exceeds (x) if such Person records such
property or assets on its books, the value for such property or assets
<PAGE> 15
7
recorded on such books or (y) if such Person does not record such property
or assets on its books, (1) if such Indebtedness is a general obligation of
the entity which does record such property or assets on its books, the net
investment in or advances to such entity as recorded on the books of such
Person or (2) if such Indebtedness is payable solely out of certain
property or assets of such entity, the lesser of the value for such
property or assets recorded on the books of such entity or the net
investment in or advances to such entity as recorded on the books of such
Person, in each case determined in accordance with generally accepted
accounting principles.
"Indenture" means this instrument, as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms (but not defined terms established in an Officers'
Certificate) of one or more particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Lien" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar encumbrance
to secure Indebtedness for borrowed money, but excluding any security interest
which a lessor may be deemed to have under a lease and any lien which may be
deemed to exist under a Production Payment or under any subordination
arrangement.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal or, in the case of
a Discount Security, the principal amount payable upon a declaration of
acceleration pursuant to Section 502, becomes due and payable, as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Tangible Assets" of any specified Person means the total of all assets
properly appearing on a balance sheet of such Person prepared in accordance
<PAGE> 16
8
with generally accepted accounting principles, after deducting from such total,
without duplication of deductions, (a) all Current Liabilities of such Person;
(b) that portion of the book amount of all such assets which would be treated as
intangibles under generally accepted accounting principles, including without
limitation, all such items as goodwill, trademarks, trade names, brands,
copyrights, patents, licenses and rights with respect to the foregoing and
unamortized debt discount and expense; and (c) the amount, if any, at which any
stock of such Person appears on the asset side of such balance sheet.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice President, the Treasurer or an Assistant Treasurer
of the Company, and by one of the other Vice Presidents, one of the other
Assistant Treasurers, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be satisfactory to the
Trustee.
"Outstanding," when used with respect to the Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons thereto appertaining; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to the Company and the Trustee that such Securities are held
<PAGE> 17
9
by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder: (i) the principal
amount of a Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable, as of the
date of such determination, upon acceleration of the Maturity thereof pursuant
to Section 502; (ii) the principal amount of a Security denominated in a foreign
currency or currencies shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
a Discount Security, the Dollar equivalent, on the date of original issuance of
such Security, of the amount determined as provided in (i) above) of such
Security; and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 301
with respect thereto, are to be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, upon the issuance of
such Securities.
<PAGE> 18
10
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 1002, the
principal of and any interest on the Securities of that series are payable, as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"principal" of a debt security, except as otherwise specifically provided
in this Indenture, means the outstanding principal of the security plus the
premium, if any, of the security.
"Principal Domestic Property" means any (i) developed oil or gas producing
property, (ii) mining property, (iii) processing or manufacturing plant, or (iv)
natural gas transmission facility which is now or hereafter owned or leased by
the Company or any Consolidated Subsidiary and which is located in the
continental United States (provided, however, that any such property, plant or
facility declared by the Board of Directors by Board Resolution not to be of
material importance to the business of the Company and its Consolidated
Subsidiaries taken as a whole will be excluded from the foregoing definition).
"Production Payment" means any economic interest in oil, gas or mineral
reserves which (i) entitles the holder thereof to a specified share of future
production from such reserves, free of the costs and expenses of such
production, and (ii) terminates when a specified quantity of such share of
future production from such reserves has been delivered or a specified sum has
been realized from the sale of such share of future production from such
reserves.
<PAGE> 19
11
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by any
such officer and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Secured Debt" means any Indebtedness of the Company or any Consolidated
Subsidiary, secured by a Lien on any Principal Domestic Property or on any
shares of stock or on any Indebtedness of any Consolidated Subsidiary which owns
any Principal Domestic Property.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Short-Term Borrowing" means all Indebtedness in respect of borrowed money
maturing on demand or within one year from the date of the creation thereof and
not directly or indirectly renewable or extendible, at the option of the debtor,
by its terms or by the terms of any instrument or agreement relating thereto, to
a date one year or more from the date of the creation thereof; provided, that
Indebtedness in respect of borrowed money arising under a revolving credit or
similar agreement which obligates the lender or lenders to
<PAGE> 20
12
extend credit over a period of one year or more shall constitute Funded Debt and
not Short-Term Borrowing, even though the same matures on demand or within one
year from the date as of which such Short-Term Borrowing is to be determined.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such instalment of interest as the fixed date
on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Subsidiary" means a corporation, association or other business entity more
than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
in force at the date as of which this instrument is qualified thereunder, except
as provided in Section 905.
"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.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, for United States Federal
income tax
<PAGE> 21
13
purposes, a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (excluding the Trustee's certificate of
disposition pursuant to Section 309 and the annual compliance certificate
pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
<PAGE> 22
14
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies
<PAGE> 23
15
duly appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a Registered Security
<PAGE> 24
16
or (4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to an Officers' Certificate delivered to the
Trustee, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Any such record
date, if so fixed, may vary from that specified in Section 316(c) of the Trust
Indenture Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Outstanding
Securities or Outstanding Securities of a series, as the case may be, have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities or Outstanding Securities of the series, as the case may
be, shall be computed as of such record date; provided, that no such
authorization, agreement or consent by the Holders on the record date shall be
deemed effective, unless such request, demand, authorization, direction, notice,
consent, waiver or other Act shall become effective pursuant to the provisions
of Clause (a) of this Section 104 not later than six months after the record
date.
<PAGE> 25
17
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it, Attention: Treasurer, at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities, if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
<PAGE> 26
18
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers, or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Trust Indenture Act Section 318(c), the imposed duties
shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
<PAGE> 27
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Except as provided in the last paragraph of Section 401, nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of
Securities, any benefits or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws, but not the laws as to conflicts or choice of
law, of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons, other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment, with the same force and effect as if made on the Interest Payment Date
or Redemption Date or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
<PAGE> 28
20
ARTICLE TWO
SECURITY FORM
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and the coupons, if any, appertaining thereto, of each
series shall be in such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the forms of the Securities or
coupons of any series are established by an Officers' Certificate, such
Officers' Certificate shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, provided, that such method is permitted by the
rules of any securities exchange on which such Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
<PAGE> 29
21
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:.............................
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in temporary or definitive global
form, as specified as contemplated by Section 301, then, notwithstanding Clause
(10) of Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner, and upon instructions given by such Person or Persons, as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in global form in the manner, and upon instructions given by the Person
or Persons, specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement, or delivery or
redelivery, of a Security in global form shall be in writing, but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form, if such Security was never
<PAGE> 30
22
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form, together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby and the written statement contemplated by the last sentence of Section
303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
interest on any Security in global form shall be made to the Person or Persons
specified therein.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107, and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or definitive
global form and, if so, the initial Depositary with respect to any such
temporary
<PAGE> 31
23
or definitive global Security, and, if other than as provided in Section
304 or Section 305, as applicable, whether, and the circumstances under
which, beneficial owners of interests in any such temporary or definitive
global Security may exchange such interests for Securities of such series
of like tenor of any authorized form and denomination;
(4) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, and the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or definitive global Security on an Interest Payment
Date will be paid, if other than in the manner provided in Section 203 and
Section 304, as applicable;
(5) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method of
calculating such rate or rates, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
<PAGE> 32
24
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which, the
price or prices at which and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies or
currency units, in which Securities of the series may be denominated or in
which payment of the principal of and any interest on the Securities of the
series shall be payable, if other than the currency of the United States of
America, and if so, whether the Securities of the series may be satisfied
and discharged other than as provided in Article Four;
(12) if the amounts of payments of principal of and any interest on
the Securities of the series are to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined and the calculation agent, if any, with
respect thereto;
(13) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a United
States Alien (including any modification in the definition of such term),
in respect of any tax, assessment or governmental charge withheld or
deducted, under what circumstances, and with what procedures and
documentation, the Company will pay such additional amounts, whether
<PAGE> 33
25
such additional amounts will be treated as interest or principal pursuant
to this Indenture, and whether the Company will have the option to redeem
such Securities rather than pay additional amounts (and the terms of any
such option);
(15) if other than as defined in Section 101, the meaning of "Business
Day" when used with respect to any Securities of the series;
(16) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any instalment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(17) any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company specified in this Indenture with
respect to Securities of the series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(7)).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical, except as to
denomination, the rate or rates of interest, if any, the Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this Section 301
or in any indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities of
a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate
<PAGE> 34
26
may provide general terms for Securities of such series and provide either that
the specific terms of particular Securities of such series shall be specified in
a Company Order or that such terms shall be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, in
accordance with the Company Order as contemplated by the first proviso of the
third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, one of its Vice Presidents, its Treasurer, or one
of its Assistant Treasurers under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile. Coupons
shall bear the facsimile signature of the Treasurer or an Assistant Treasurer of
the Company.
Securities and coupons, if any, appertaining thereto, bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals, or
any of them, have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities; and the Trustee, in accordance with such Company
Order, shall authenticate and deliver such Securities; provided, however, that,
with respect to Securities of a series subject to a Periodic Offering, (a) such
<PAGE> 35
27
Company Order may be delivered by the Company to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not exceeding
the aggregate principal amount established for such series, pursuant to a
Company Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or rates of
interest, if any, the Stated Maturity or Maturities, the original issue date or
dates, the redemption provisions, if any, and any other terms of Securities of
such series shall be determined by a Company Order or pursuant to such
procedures and (d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company, or the Company's duly authorized agent or agents
designated in an Officers' Certificate, which oral instructions shall be
promptly confirmed in writing; and provided, further, that, in connection with
its original issuance, no Bearer Security or coupon shall be mailed or otherwise
delivered to any Person who is not a United States Alien or to any location in
the United States. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security, unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating Securities, the form, terms and any related coupons of
which have been established in or pursuant to one or more Officers' Certificates
as permitted by Sections 201 and 301, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities and any coupons have
been duly authorized by the Company and established in conformity with the
provisions of this Indenture; and
(b) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
customary exceptions;
<PAGE> 36
28
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once, at or prior to the time of the first authentication of
Securities of such series, and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 301, as the case may be) will have been, duly authorized by the
Company and established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture and (3) issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series, unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
If such forms or terms have been established as provided in the preceding
two paragraphs, the Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this
<PAGE> 37
29
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein, executed by the Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been duly authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309, together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
<PAGE> 38
30
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form, with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of such temporary Securities at any office or agency of the
Company designated pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute, and the Trustee shall authenticate and
deliver in exchange therefor, a like principal amount of definitive Securities
of the same series and of like tenor of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Unless otherwise specified as contemplated by Section 301, if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear or Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
<PAGE> 39
31
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of the same series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities of the same series and of like tenor without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
definitive bearer form or registered form, or shall be represented by a
definitive global Security, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for definitive Securities of the
same series and of like tenor following the Exchange Date, when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 301. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like, in the event that such Person
does not take delivery of such definitive Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as
<PAGE> 40
32
contemplated by Section 301, interest payable on a temporary global Security
representing a series of Bearer Securities on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euro-clear and Cedel S.A. on such Interest Payment Date, upon
delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 301, for credit, without further interest
on or after such Interest Payment Date, to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euro-clear or Cedel S.A.,
as the case may be, any certificate specified as contemplated by Section 301.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept, at one of its offices or agencies
maintained pursuant to Section 1002, a register for the Securities accessible to
the Trustee (the register maintained in such office or agency designated
pursuant to Section 1002 being herein sometimes collectively referred to as the
"Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose in a
Place of Payment, the Company shall execute, and the Trustee or a duly appointed
co-authenticating agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series and of any authorized denominations, of a like aggregate
principal amount and tenor.
Notwithstanding any other provisions (other than the provisions set forth
in the seventh and eighth paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred, except as a whole by the Depositary for such series to a nominee of
such Depositary, or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary, or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
<PAGE> 41
33
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment, in funds
acceptable to the Company and the Trustee, in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted
<PAGE> 42
34
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form, in an aggregate principal amount equal to the
principal amount of the Security or Securities in global form representing such
series, in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive
form, and in an aggregate principal amount equal to the principal amount of the
Security or Securities in global form representing such series, in exchange for
such Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 301, any definitive
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a definitive global Security are entitled to
exchange such interests for definitive Securities of such series and of like
<PAGE> 43
35
principal amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 301, then, without unnecessary delay, but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such definitive
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such definitive global Security shall be
surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such definitive global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
definitive global Security to be exchanged, which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that
notwithstanding the last paragraph of this Section 305, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that in connection with its original
issuance, no Bearer Security or coupon delivered in exchange for a portion of a
definitive global Security shall be mailed or otherwise delivered to any Person
that is not a United States Alien or to any location in the United States. If a
Registered Security is issued in exchange for any portion of a definitive global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom
<PAGE> 44
36
interest in respect of such portion of such definitive global Security is
payable in accordance with the provisions of this Indenture.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee. Registered
Securities issued in exchange for a Security in global form pursuant to this
Section 305 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Registered Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107, not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
ninth paragraph of this Section 305) at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant
<PAGE> 45
37
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to exchange
any Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, a new
Security of the same series of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute, and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of and any interest on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
<PAGE> 46
38
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and any such new
Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date, and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be
<PAGE> 47
39
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities, at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at
<PAGE> 48
40
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for or in lieu of, any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of and (except as otherwise specified as contemplated by Section 301
and subject to Section 305 and Section 307) interest on such Registered Security
and for all other purposes whatsoever, whether or not such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon, as the case may be, for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
<PAGE> 49
41
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered shall
be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor or the related coupons pursuant to Section 306. All Bearer Securities
and unmatured coupons held by the Trustee pending such cancellation or
reissuance shall be deemed to be delivered for cancellation for all purposes of
this Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever
(including Securities received by the Company in exchange or payment for other
securities of the Company), and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted in the form
of Securities for any particular series or as permitted pursuant to the terms of
this Indenture. All cancelled Securities and coupons held by the Trustee may be
disposed of and certification of their disposition delivered to the Company,
unless by a Company Order the Company shall direct that such Securities be
returned to it. Any cancelled Securities not disposed of shall be returned to
the Company.
<PAGE> 50
42
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, (i) interest on any Securities which bear interest at a fixed
rate shall be computed on the basis of a 360-day year of twelve 30-day months
and (ii) interest on any Securities which bear interest at a variable rate shall
be computed on the basis of the actual number of days in an interest period
divided by 360.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Except as otherwise specified as contemplated by Section 301, this
Indenture, upon a Company Request, shall cease to be of further effect as to all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be (except as to (i) remaining rights of registration of transfer,
substitution and exchange of Securities or Securities of such series, as the
case may be, (ii) rights hereunder of Holders to receive payment of principal of
and interest on all Outstanding Securities or all Outstanding Securities of such
series, as the case may be, at the Stated Maturity thereof and any other rights
of the Holders of all Outstanding Securities or all Outstanding Securities of
such series, as the case may be, as beneficiaries hereof with respect to the
amounts deposited with the Trustee under this Section 401 and (iii) the rights,
the obligations of the Trustee under Sections 304, 305, 306 and 1003 and the
immunities of the Trustee hereunder and the obligations of the Company to the
Trustee under Section 607), and the Company shall be deemed to have paid and
discharged its entire indebtedness on all the Outstanding Securities or all
Outstanding Securities of such series, as the case may be, and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of the Company's obligations under this Indenture,
when
(1) either
(A) all Outstanding Securities or all Outstanding Securities of
such series, as the case may be, theretofore authenticated and
delivered, and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for ex-
<PAGE> 51
43
change for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities or Securities of such series, as the case
may be, and coupons, if any, which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, (iii)
coupons, if any, appertaining to Securities or Securities of such
series, as the case may be, called for redemption and maturing after
the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities or Securities of such
series, as the case may be, and coupons, if any, for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) the Company has irrevocably deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the Holders of all
Outstanding Securities, or the Holders of all Outstanding Securities
of such series, as the case may be, money or direct non-callable
obligations of, or non-callable obligations timely payments of which
are guaranteed by, the United States of America, for the payment of
which guarantee or obligation the full faith and credit of the United
States is pledged ("U.S. Government Obligations"), maturing as to
principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such
interest, to pay and discharge at Stated Maturity or any Redemption
Date, as the case may be, all principal of and interest on all
Outstanding Securities or all Outstanding Securities of such series,
as the case may be. Such irrevocable trust agreement shall instruct
the Trustee (i) to apply such money or the proceeds of said U.S.
Government Obligations to the payment of said principal of and
interest on the Securities or Securities of such series, as the case
may be; and (ii) if the Securities or Securities of such series, as
the case may be, are to be repaid at a Redemption Date and the Company
has not given notice of redemption pursuant to Section 1104 (including
where such Securities are
<PAGE> 52
44
not yet redeemable at the date of deposit) to give notice of
redemption on such Redemption Date pursuant to Section 1104;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities or Securities of
such series, as the case may be;
(3) no Event of Default under Clause (2) of Section 501 is then in
existence with respect to the Securities or the Securities of such series,
as the case may be; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Securities or the Securities of such series,
as the case may be, and the payment or discharge of the entire indebtedness
on all Securities or Securities of such series, as the case may be, have
been complied with.
Notwithstanding any such satisfaction and discharge, (i) the obligations of
the Company to the Trustee under Section 607 shall survive and (ii) the Company
shall not be discharged from any payment obligations in respect of the
Securities or the Securities of such series, as the case may be, which are
deemed not to be Outstanding under Clause (iii) of the definition of
"Outstanding" if such obligations continue to be valid obligations of the
Company under applicable law.
SECTION 402. Application of Trust Money.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) deposited with the Trustee
pursuant to the trust agreement referred to in Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
the series with respect to which such deposit is made, this Indenture and such
trust agreement, to the payment, either directly or through any Paying Agent
(other than the Company) as the Trustee may determine, of the principal and
interest
<PAGE> 53
45
amounts due at the Stated Maturity or the Redemption Date, as the case may be,
with respect to the Securities of such series to the Persons entitled thereto.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) so deposited which remain
unclaimed for two years after payment to such Persons has become due and payable
shall be turned over to the Company in accordance with the provisions of Section
1003.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means, with respect to each
series of the Securities individually, any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any instalment of interest upon any
Security of such series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of any Security of such
series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
<PAGE> 54
46
Holders of at least 25% in principal amount of the Outstanding Securities
of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage,
indenture, guaranty or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Company, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having
been discharged or such acceleration having been rescinded or annulled
within a period of 20 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series a written notice specifying such
default and requiring the Company to cause such indebtedness to be
discharged or such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; provided, that no
Event of Default under this subsection (4) shall be deemed to exist as a
result of the acceleration of any such indebtedness if the principal of and
interest on such indebtedness, when added to the principal of and interest
on all other such indebtedness which has been accelerated as aforesaid
(excluding any such indebtedness which has been discharged or as to which
the acceleration has been duly rescinded or annulled), shall not exceed
$50,000,000; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under Federal bankruptcy law
or any other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of
<PAGE> 55
47
any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
Federal bankruptcy law or any other applicable Federal or state law, or the
consent by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action; or
(7) any other event designated as an "Event of Default" with respect
to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal (or portion thereof) shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
<PAGE> 56
48
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue instalments of interest on all Securities of such
series;
(B) the principal of any Securities of such series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue instalments of interest at the rate or rates
prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amount due the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of Securities of such series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any instalment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof,
<PAGE> 57
49
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue instalments of interest from the date such interest was due, at the
rate or rates prescribed therefor in such Securities; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amount due the
Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may, in its discretion, proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
<PAGE> 58
50
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 607)
and of the Holders of Securities and coupons allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder of
Securities and coupons to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
<PAGE> 59
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judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities or coupons, or both, as the case may be, and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities and interest evidenced by
coupons in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and coupons for principal
and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
<PAGE> 60
52
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest on
such Security or payment of such coupon on the Stated Maturities or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
<PAGE> 61
53
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
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(2) the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to
<PAGE> 63
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any suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of or interest on any Security or the payment of
any coupon on or after the Stated Maturity or Maturities expressed in such
Security or coupon (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time voluntarily (and that it will resist any effort to make it
do so involuntarily) insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
<PAGE> 64
56
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture with respect to the Securities of such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
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SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit, in the manner and
to the extent provided in Section 703(b), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or interest on any Security of such series or in the payment of any sinking
fund instalment with respect to any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that, in the case of any default of the character
specified in Section 501(3), no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
<PAGE> 66
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(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons. The Trustee shall
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not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or coupons and, subject to Sections 608 and 612, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
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any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest on
particular Securities or for the payment of particular coupons.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder, which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. The Trustee shall comply with
Trust Indenture Act Sections 310(a)(5) and 310(b).
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such issue.
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(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the last sentence of Section
608 after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months (or such
shorter period as the Securities have been outstanding), or
(2) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months (or
such shorter period as the Securities have been outstanding) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the
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Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
of such series for at least six months (or such shorter period as the Securities
have been outstanding) may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
wherein each successor Trustee shall accept such appointment and which
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(1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any
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merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding
any creditor relationship listed in Trust Indenture Act Section 311(b). A
Trustee who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 30 and December 31 in each year,
a list, in such form as the Trustee may reasonably require, containing all
the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities as of the preceding June 15 or December 15, as the
case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 703(b)(2). The
Trustee may (i) destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, (ii) destroy any information received by it
as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee,
not earlier than August 15 or February 15, a list containing the names and
addresses of the Holders of Securities obtained from such information since the
delivery of the next previous list, if any, (iii) destroy any list delivered to
itself as Trustee which was compiled from information received by it as Paying
Agent (if so acting) hereunder upon the receipt of a new list so delivered, and
(iv) destroy not earlier than two years after filing, any information filed with
it pursuant to Section 703(b)(2).
(b) Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Security Registrar, the Paying Agent
and any other person shall have the protection of Trust Indenture Act Section
312(c).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the year
1995, the Trustee shall transmit to all Holders of Securities a brief report
dated as of such May 15 that complies with Trust Indenture Act Section 313(a),
if such report is required by such Section 313(a). The Trustee also shall comply
with Trust Indenture Act Section 313(b)(2).
(b) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
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(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(c) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(b) with respect to reports under Section 703(a),
copies or such summaries of any information, documents and reports required
to be
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filed by the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a Person or corporation organized and existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of and interest on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person in accordance with
Section 801, the successor corporation formed by such consolidation or into
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which the Company is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor corporation or Person had been named as the Company herein, and
thereafter, except in the case of a lease to another Person, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture, the Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company;
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions (including restrictions relating to
payment in the United States) on the payment of principal of or any premium
or interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations
or to permit the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
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(4) to establish the form or terms of Securities of any series and any
related coupons, as permitted by Sections 201 and 301, respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to secure the Securities.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
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without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any instalment
of principal or interest on, any such Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof, or reduce the amount of principal of any such Discount
Security that would be due and payable upon a declaration of acceleration
of maturity thereof pursuant to Section 502, or change the Place of Payment
where, or coin or currency in which, any principal of, or any instalment of
interest on, any such Security is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) with respect to the
Securities of such series provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
interest on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest instalments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1011); provided, however, that, if the Securities of that series are listed on
The London Stock Exchange, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and
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such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange; and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee and the Holders of the location, and any change in
the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of
Securities, or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made, and
notices and demands may be made or served, at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series pursuant to
Section 1011) at the place specified for that purpose as contemplated by Section
301 or, if no such place is specified, at the main office of the Trustee in
London, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of a Bearer
Security or coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1011) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, interest or additional amounts, as the case may
be, at all offices or agencies outside the United States maintained
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for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of the Securities, it will, on or before each due date of the
principal of or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
the Securities, it will, on or prior to each due date of the principal of or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Company, in trust for the payment of the principal of or interest on any
Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense and direction of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
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if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance or both of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will or will cause a Subsidiary to pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings, or if the Company shall determine that the payment
thereof is not desirable in the conduct of its business or the business of any
Subsidiary and that the non-payment thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1007. Limitation on Liens.
The Company will not, and will not permit any Consolidated Subsidiary to,
incur, create, assume, guarantee or otherwise become liable with respect to any
Secured Debt, unless (i) the Company secures or causes such Consoli-
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dated Subsidiary to secure the Securities equally and ratably with (or prior to)
such Secured Debt or (ii) after giving effect thereto, the aggregate amount of
all Secured Debt, together with all Discounted Rental Value in respect of sale
and leaseback transactions involving Principal Domestic Properties (excluding
sale and leaseback transactions exempted from the prohibition of subsection (a)
of Section 1008 by subsection (b) of Section 1008), would not exceed 10% of
Consolidated Net Tangible Assets; provided, however, that for purposes of this
Section there shall be excluded from Secured Debt all Indebtedness secured by:
(a) Liens existing on the date of this Indenture;
(b) Liens existing on property of, or on any shares of stock or
Indebtedness of, any corporation at the time such corporation becomes a
Consolidated Subsidiary;
(c) Liens in favor of the Company or a Consolidated Subsidiary;
(d) Liens in favor of governmental bodies to secure progress, advance
or other payments pursuant to any contract or provision of any statute;
(e) Liens existing on property, shares of stock or Indebtedness at the
time of acquisition thereof (including acquisition through merger or
consolidation) or Liens (i) to secure the payment of all or any part of the
purchase price thereof or the cost of construction, installation,
renovation, improvement or development thereon or thereof or (ii) to secure
any Indebtedness incurred prior to, at the time of, or within 360 days
after the later of the acquisition, the completion of such construction,
installation, renovation, improvement or development or the commencement of
full operation of such property or within 360 days after the acquisition of
such shares or Indebtedness for the purpose of financing all or any part of
the purchase price or cost thereof; and
(f) any extension, renewal or refunding of any Liens referred to in
the foregoing clauses (a) through (e), inclusive, provided, however, that
(i) such extension, renewal or refunding Lien shall be limited to all or
part of the same property, shares of stock or Indebtedness that secured the
Lien extended, renewed or refunded (plus improvements on or replacements of
such property) and (ii) such Secured Debt at such time is not increased.
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SECTION 1008. Limitation on Sale and Leaseback Transactions.
(a) The Company will not, and will not permit any Consolidated Subsidiary
to, sell or transfer any Principal Domestic Property, with the Company or any
Consolidated Subsidiary taking back a lease of such Principal Domestic Property,
unless: (i) such Principal Domestic Property is sold within 360 days from the
date of acquisition of such Principal Domestic Property or the date of the
completion of construction or commencement of full operations on such Principal
Domestic Property, whichever is later; or (ii) the Company or such Consolidated
Subsidiary could subject such Principal Domestic Property to a Lien pursuant to
Section 1007 in an amount equal to the Discounted Rental Value with respect to
such sale and leaseback transaction without equally and ratably securing the
Securities; or (iii) the Company, within 120 days after such sale, applies or
causes to be applied to the retirement of its Funded Debt an amount not less
than the greater of (A) the net proceeds of the sale of such Principal Domestic
Property or (B) the fair value (as determined in any manner approved by the
Board of Directors) of such Principal Domestic Property; provided, however, that
the amount to be applied to the retirement of Funded Debt of the Company or such
Consolidated Subsidiary shall be reduced by the principal amount of Funded Debt
of the Company or such Consolidated Subsidiary voluntarily retired by the
Company or such Consolidated Subsidiary within 120 days after such sale.
(b) The provisions of this Section shall not prevent (i) a sale and
leaseback transaction between the Company and a Consolidated Subsidiary or
between Consolidated Subsidiaries or (ii) a sale or transfer of any Principal
Domestic Property with a lease for a period, including renewals, of not more
than 36 months.
SECTION 1009. Statement by Officer as to Compliance; Notice of Certain Events.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a brief
certificate, signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, as to the signer's
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under any of the provisions of this Indenture. The Company's fiscal
year ends on December 31 of each year. The Company will notify the Trustee in
the event
<PAGE> 87
79
that such fiscal year changes. The Company will deliver to the Trustee, within
20 days after the occurrence thereof, notice of each acceleration which, with
giving of notice by the Trustee or Holders and the lapse of time, would be an
Event of Default within the meaning of Section 501(4).
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 1004 to 1008, inclusive, or 1011 with respect
to the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 1011. Additional Amounts.
If specified as contemplated by Section 301, the Securities of a series may
provide for the payment of additional amounts, and in such case, the Company
will pay to the Holder of any Security of such series or any coupon appertaining
thereto additional amounts as provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of or any interest
on, or in respect of, any Security of any series or payment of any related
coupon, such mention shall be deemed to include mention of the payment of
additional amounts provided for in this Section to the extent that, in such
context, additional amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section, and express mention of the payment
of additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal and any
interest if there
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has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons, and the Company will
pay to the Trustee or such Paying Agent the additional amounts required by the
Securities of such series and this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred, without negligence or bad faith
on their part, arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the event that the Company elects to redeem less than all the Securities
of any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
the Securities to be redeemed and of any other information necessary to identify
the Securities of such series to be redeemed.
<PAGE> 89
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SECTION 1103. Selection by Trustee of Securities to be Redeemed.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, if less than all the Securities of any series with the
same issue date, interest rate and Stated Maturity are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Registered Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, notice of redemption shall be given in the manner
provided in Section 106 to the Holders of Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be redeemed
(including, if applicable, the CUSIP number thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be
<PAGE> 90
82
redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date;
(5) the place or places where such Securities, together, in the case
of Bearer Securities, with all coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that instalments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless
<PAGE> 91
83
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided, further, that, unless
otherwise specified as contemplated by Section 301, instalments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Sections 305 and 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in
<PAGE> 92
84
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series with the
same issue date, interest rate and Stated Maturity (other than any previously
called for redemption), together, in the case of any Bearer Securities of such
series with the same issue date, interest rate and Stated Maturity, with all
unmatured coupons appertaining thereto, and (2) may apply as a credit Securities
of a series with the same issue date, interest rate and Stated Maturity which
have been redeemed, either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any mandatory sinking fund payment with respect to the
Securities of such series with the same issue date, interest rate and Stated
Maturity; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in
<PAGE> 93
85
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202, and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine or, with the approval of the Company, at
any other place. Notice of every meeting of Holders of Securities of any
<PAGE> 94
86
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in London, or in such other place as shall be
determined and approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in Subsection (a)
of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
majority in principal amount of the Outstanding Securities of a series, the
<PAGE> 95
87
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1302(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present,
as aforesaid, may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present, as aforesaid, by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any
<PAGE> 96
88
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect to any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
<PAGE> 97
89
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting, and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits, signed by one or more persons having knowledge of
the facts, setting forth a copy of the notice of the meeting and showing that
said notice was given as provided in Section 1302 and, if applicable, Section
1304. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee, to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
<PAGE> 98
90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
OCCIDENTAL PETROLEUM
CORPORATION
By
---------------------------------
[Seal]
Attest:
------------------------------
THE BANK OF NEW YORK,
TRUSTEE
By
---------------------------------
[Seal]
Attest:
------------------------------
<PAGE> 99
91
STATE OF CALIFORNIA COUNTY ss.:
OF LOS ANGELES
On the day of , 1995, before me personally came
, to me known, who, being by me duly sworn, did
depose and say that he is a of Occidental Petroleum
Corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
------------------------------------
STATE OF NEW YORK COUNTY OF ss.:
NEW YORK
On the day of , 1995, before me personally came
, to me known, who, being by me duly sworn, did
depose and say that he is a of The Bank of New York,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
------------------------------------
<PAGE> 1
EXHIBIT 5
[OCCIDENTAL PETROLEUM CORPORATION LOGO]
May 17, 1995
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Re: Occidental Petroleum Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental Petroleum Corporation,
a Delaware corporation ("Occidental"), and am rendering this opinion in
connection with the preparation of the above-referenced Registration Statement
on Form S-3 (the "Registration Statement"), which is to be filed by Occidental
on May 17, 1995, with the Securities and Exchange Commission (the "Commission").
The Registration Statement relates to the registration under the Securities Act
of 1933, as amended (the "Securities Act"), of $750,000,000 aggregate public
offering price of senior debt securities (the "Debt Securities") of Occidental.
The Debt Securities are being registered for offering and sale from time to time
pursuant to Rule 415 under the Securities Act. The Debt Securities are to be
issued pursuant to an indenture between Occidental and The Bank of New York, a
New York banking corporation, as trustee (the "Trustee").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
such documents as I have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Registration Statement (together
with the form of preliminary prospectus forming a part thereof), (ii) the
Restated Certificate of Incorporation and By-Laws of Occidental, in each case,
as amended to date, (iii) the proposed form of indenture
<PAGE> 2
Occidental Petroleum Corporation
May 17, 1995
Page 2
included as Exhibit 4 to the Registration Statement (the "Indenture"), and (iv)
copies of certain resolutions adopted by the Board of Directors of Occidental
relating to the execution of the Indenture, the issuance of the Debt Securities,
the filing of the Registration Statement and any amendments or supplements
thereto and related matters. In my examination, I have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to me as originals, the conformity to originals
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. As to
any facts material to the opinions expressed herein which I have not
independently established or verified, I have relied upon statements and
representations of officers and other representatives of Occidental and others.
I am a member of the California and New York Bars and for purposes of
this opinion do not express any opinion as to the laws of any jurisdiction other
than the laws of the State of New York, the Federal laws of the United States
and the General Corporation Law of the State of Delaware. The Debt Securities
may be issued from time to time on a delayed or continuous basis and this
opinion is limited to the laws, including the rules and regulations, as in
effect on the date hereof.
Based upon and subject to the foregoing, I am of the opinion that when
(i) the Registration Statement becomes effective under the Securities Act; (ii)
the appropriate officers of Occidental have taken all necessary action pursuant
to Section 301 of the Indenture to fix and approve the terms of the Debt
Securities, including the establishment of the form or forms of certificates
representing the Debt Securities pursuant to Section 201 of the Indenture; (iii)
the Indenture pursuant to which the Debt Securities are to be issued shall have
been qualified under the Trust Indenture Act of 1939, as amended, and duly
executed and delivered by Occidental and the Trustee; (iv) the Debt Securities
are duly executed and authenticated in accordance with the provisions of the
Indenture and duly delivered to the purchasers thereof upon payment of the
agreed upon consideration therefor, the Debt Securities will be validly issued
and binding obligations of Occidental, enforceable against Occidental in
accordance with their terms, except as may be subject to or limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other
<PAGE> 3
Occidental Petroleum Corporation
May 17, 1995
Page 3
similar laws now or hereafter in effect relating to creditors' rights generally,
(ii) general principles of equity (regardless of whether enforcement is consider
in a proceeding in equity or at law), (iii) requirements that a claim with
respect to any Debt Securities 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 (iv)
governmental authority to limit, delay or prohibit the making of payments
outside the United States or in a foreign currency, composite currency or
currency unit. In addition, I express no opinion with respect to any Debt
Securities that are indexed or linked to any foreign currency, composite
currency, currency unit, commodity, equity index or similar index.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. I also consent to the reference to me
under the heading "Legal Matters" in the Registration Statement. In giving this
consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
Robert E. Sawyer
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of (a) our report, dated
February 3, 1995, included in Occidental Petroleum Corporation's Annual Report
for the year ended December 31, 1994, and (b) our report, dated February 3,
1995, included in Occidental Petroleum Corporation's Annual Report on Form 10-K
for the year ended December 31, 1994, and to all references to our Firm included
in or made a part of this Registration Statement.
Los Angeles, California ARTHUR ANDERSEN LLP
May 15, 1995
<PAGE> 1
EXHIBIT 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
-----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 8th day of May, 1995.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-----------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
- 4 -
<PAGE> 5
EXHIBIT 7
________________________________________________________________________________
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1994, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ..... $ 2,715,471
Interest-bearing balances .............................. 853,709
Securities:
Held-to-maturity securities ............................ 1,346,480
Available-for-sale securities .......................... 1,564,425
Federal funds sold in domestic offices of the bank ....... 5,557,770
Loans and lease financing receivables:
Loans and leases, net of unearned income .....24,091,702
LESS: Allowance for loan and lease losses .......581,958
LESS: Allocated transfer risk reserve ............31,502
Loans and leases, net of unearned income, allowance,
and reserve ........................................... 23,478,242
Assets held in trading accounts .......................... 746,396
Premises and fixed assets (including capitalized leases).. 624,567
Other real estate owned .................................. 46,570
Investments in unconsolidated subsidiaries and associated
companies .............................................. 181,905
Customers' liability to this bank on acceptances
outstanding ............................................ 794,339
Intangible assets ........................................ 77,527
Other assets ............................................. 1,300,004
-----------
Total assets ............................................. $39,287,405
===========
LIABILITIES
Deposits:
In domestic offices .................................... $18,681,498
Noninterest-bearing ...........................7,230,562
Interest-bearing .............................11,450,936
In foreign offices, Edge and Agreement subsidiaries,
and IBFs .............................................. 10,611,477
Noninterest-bearing ..............................69,012
Interest-bearing .............................10,542,465
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased ................................ 1,033,228
Securities sold under agreements to repurchase ......... 31,875
Demand notes issued to the U.S. Treasury ................. 141,663
Trading liabilities ...................................... 562,071
Other borrowed money:
With original maturity of one year or less ............. 1,576,410
With original maturity of more than one year ........... 243,955
Bank's liability on acceptances executed and outstanding.. 796,534
Subordinated notes and debentures ........................ 1,056,320
Other liabilities ........................................ 1,490,732
-----------
Total liabilities ........................................ 36,225,763
-----------
EQUITY CAPITAL
Common stock ............................................. 942,284
Surplus .................................................. 525,666
Undivided profits and capital reserves ................... 1,654,282
Net unrealized holding gains (losses) on
available-for-sale securities .......................... ( 54,920)
Cumulative foreign currency translation adjustments ...... ( 5,670)
-----------
Total equity capital ..................................... 3,061,642
-----------
Total liabilities and equity capital ..................... $39,287,405
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot )
Alan R. Griffith ) Directors
Thomas A. Renyi )
________________________________________________________________________________
Reprinted from American Banker February 22, 1995
