OCCIDENTAL PETROLEUM CORPORATION
UNDERWRITING AGREEMENT
September 25, 1998
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Occidental Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Underwriter") with respect to the sale by the Company and the purchase
by the Underwriter of $270 million aggregate principal amount of the Company's
Extendible Notes due October 3, 2008 (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 with respect to the Notes
delivered pursuant to Sections 201 and 301 of the Indenture), dated as of
April 1, 1998, 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. 333-52053) and, if
applicable, one or more amendments thereto 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 (as amended, if
applicable) 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 (as amended, if applicable) 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), are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that, if
any revised prospectus or revised prospectus supplement 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 or prospectus supplement, as the case may be, from and after the
time it is first provided to the Underwriters for such use. Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations and
relating to the Registration Statement is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. Any reference
herein to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents, financial
statements and schedules incorporated or deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, and any
reference to any amendment or supplement to the Registration Statement or the
Prospectus shall be deemed to refer to and include any documents, financial
statements and schedules filed by the Company with the Commission under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and so
incorporated or deemed to be incorporated by reference (such incorporated
documents, financial statements and schedules being herein called the
"Incorporated Documents"). Notwithstanding the foregoing, for purposes of this
Agreement any prospectus supplement prepared or filed with respect to an
offering pursuant to the Registration Statement of a series of debt securities
other than the Notes shall not be deemed to have supplemented the Prospectus.
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus or the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
The Company understands that the Underwriter proposes to make a public
offering of the Notes as soon as the Underwriter deems advisable after this
Agreement has been executed and delivered.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as follows:
(i) The Incorporated Documents, when they were filed or became effective
(or, if an amendment with respect to any such Incorporated Document was
filed or became effective, when such amendment was filed or became
effective) with the Commission, as the case may be, complied in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and any Incorporated Documents filed subsequent to the date
hereof and prior to the termination of the offering of the Notes, will,
when they are filed with the Commission, comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations; no such
Incorporated Document, when it was filed or became effective (or, if an
amendment with respect to any such Incorporated Document was filed or
became effective, when such amendment was filed or became effective) with
the Commission, contained, and no Incorporated Document filed subsequent to
the date hereof and prior to the termination of the offering of the Notes
will contain, an untrue statement of a material fact or omitted, or will
omit, to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were or will be made, not misleading.
(ii) Each preliminary prospectus 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, comply and 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 the 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. In
the event that the Registration Statement (including any prospectus filed
as part of the Registration Statement), any preliminary prospectus or the
Prospectus or any amendment or supplement to any of the foregoing was or is
filed electronically pursuant to XXXXX, then the Registration Statement
(including any prospectus filed as part thereof), such preliminary
prospectus, the Prospectus and any such amendment or supplement delivered
to the Underwriter for use in connection with the offering of the Notes was
or will be, as the case may be, identical (as to content) to the
electronically transmitted copy thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(iii) This Agreement, the Indenture, the Remarketing Agreement (the
"Remarketing Agreement"), dated as of October 2, 1998, between the Company
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent") and the Notes have been duly authorized by the Company and conform
in all material respects to the descriptions thereof in the Prospectus.
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(iv) The Indenture (assuming the due execution and delivery thereof by
the Trustee) and the Remarketing Agreement are, 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 and (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). 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 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 Underwriter 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 and the Remarketing Agreement by the Company,
the issuance and sale of the Notes and the performance by the Company of
its obligations under this Agreement, the Remarketing 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 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,
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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 Underwriter or to counsel for the Underwriter in
connection with transactions contemplated hereby shall be deemed a
representation and warranty by the Company to the Underwriter as to the
matters covered thereby on the date of such certificate.
Section 2. Sale and Delivery to the Underwriter; 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 the Underwriter, and the Underwriter
agrees to purchase from the Company, at 99.80% of the principal amount
thereof, $270 million aggregate principal amount of the Notes.
(b) Closing Time. Payment of the purchase price for, and delivery of the
certificates for, the Notes shall be made at the offices of Xxxxx & Wood LLP,
00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, or at such other
place as shall be agreed upon by the Underwriter and the Company, at 10:00
a.m., New York City time, on October 2, 1998 (unless postponed in accordance
with the provisions of Section 11), or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriter and
the Company (such time and date of payment and delivery being herein called
"Closing Time"). Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to the Underwriter of certificates for the Notes to be
purchased by it. Certificates for the Notes shall be in such denominations and
registered in such names as the Underwriter may request in writing by
12:00 noon New York City time at least one full business day before Closing
Time. The certificates for the Notes will be made available for examination
and packaging by the Underwriter not later than 10:00 a.m. on the last
business day prior to Closing Time in The City of New York.
Section 3. Foreign Offerings.
The Underwriter represents and agrees that (i) it has not solicited, and
will not solicit, offers to purchase any of the Notes from, (ii) it has not
sold, and will not sell, any of the Notes to, and (iii) it has not
distributed, and will not distribute, the Prospectus to, any person or entity
in any jurisdiction outside of the United States (collectively "Foreign Offers
and Sales") except, in each case, in compliance in all material respects with
all applicable laws and, in connection with the initial offering of, or
subscription for, any of the Notes, only with the prior written consent of the
Company and in full compliance with any requirements and procedures
established by the Company with respect to any such Foreign Offers and Sales.
For the purposes of this paragraph, "United States" means the United States of
America, its territories, its possessions (including the Commonwealth of
Puerto Rico) and other areas subject to its jurisdiction.
In particular and without limiting the generality of the foregoing:
(i) The 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.
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(ii) With respect to the United Kingdom, the Underwriter represents and
agrees that (A) it has not offered or sold and, prior to the expiry of the
period of six months from the Closing Time, will not offer or sell any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, (B) it has complied and will
comply with all applicable provisions of the Financial Services Act of 1986
(the "Financial Services Act") with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United Kingdom
and (C) it has only issued or passed on, and will only issue or pass on, in
the United Kingdom any document received by it in connection with the issue
of the Notes, other than any document which consists of or any part of
listing particulars, supplementary listing particulars or any other
document required or permitted to be published by listing rules under Part
IV of the Financial Services Act, to a person who is of a kind described in
Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(iii) With respect to Japan, the Underwriter understands that the Notes
have not been, and will not be, registered under the Securities and
Exchange Law of Japan, and, accordingly, the Underwriter represents and
agrees that in connection with the initial offering of any of the Notes, it
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.
(iv) With respect to the Provinces of Canada (the "Provinces"), the
Underwriter represents and agrees that, in connection with the initial
offering of any of the Notes, (A) it will not, directly or indirectly,
offer or sell any of the Notes in any of the Provinces or to, or for the
benefit of, any resident of any of the Provinces after the date (the
"Canadian Ending Date") set by the Company for the end of the offer of such
Notes, and, without the prior written consent of the Company, it will not
distribute or permit to be distributed any Prospectus in any of the
Provinces or to, or for the benefit of, any resident of any of the
Provinces after the Canadian Ending Date, (B) with respect to anything done
by the Underwriter in relation to the Notes in, from, or otherwise
involving, any of the Provinces, it has complied, and will comply, in all
material respects, with all applicable provisions of the securities
legislation of Canada and the Provinces (the "Canadian Securities
Legislation") (including, without limitation, the conveyance, or the
provision of assistance to the Company in conveying, any right of
rescission, damages or other right as required by applicable Canadian
Securities Legislation) so that any offer or sale of any of the Notes in
the Provinces, or any of them, will qualify for exemptions from prospectus,
registration and equivalent requirements, or exemptions from other
applicable requirements, as prescribed by the Canadian Securities
Legislation in force at the time when such offer or sale is made, provided
that such offer or sale is made pursuant to the Prospectus, as supplemented
to the extent required by the Canadian Securities Legislation (the
Prospectus, as so supplemented, hereinafter referred to as the "Canadian
Offering Memorandum"), (C) with respect to Notes offered or sold, or to be
offered or sold, by the Underwriter, or Notes purchased, or to be
purchased, by the 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 September 25, 1998, 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 the Underwriter,
it 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
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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 the Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof to and
including the time at which the distribution of the Notes is completed, the
Company will notify the Underwriter 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 any such case relating to the Notes, of which the
Underwriter shall not previously have been advised or to which the Underwriter
shall reasonably object in writing, unless, in the judgment of the Company and
its counsel, such amendment or supplement is necessary to comply with law.
(c) Copies of the Registration Statement, the Rule 462(b) Registration
Statement and the Prospectus. The Company will deliver to the Underwriter one
signed and as many conformed copies of the Registration Statement (as
originally filed), the Rule 462(b) Registration Statement, if any, and of each
amendment thereto relating to the Notes (including the Incorporated Documents
and any exhibits filed therewith or incorporated by reference therein) as the
Underwriter may reasonably request. The Company will furnish to the
Underwriter as many copies of the Prospectus (as amended or supplemented) as
the Underwriter shall reasonably request so long as the Underwriter is
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 Underwriter is
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 Underwriter, 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 Underwriter, and 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 Underwriter.
(e) Earnings Statements. The Company will make generally available to its
security holders a consolidated earnings statement (which need not be audited)
covering a period of at least twelve months commencing after the Closing Time
(but in no event commencing later than 90 days after the Closing Time), as
soon as is reasonably practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) and Rule 158 of the
1933 Act.
(f) Blue Sky Qualifications. The Company will endeavor, in cooperation with
the Underwriter, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
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Underwriter 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 Underwriter 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 Underwriter and the Company deem
appropriate.
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 and the
Remarketing 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter 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.
If this Agreement is terminated pursuant to any of the provisions hereof
(otherwise than by notice given by the Underwriter in connection with the
occurrence of any event set forth in clauses (ii) through (iv) of
Section 10(a)), the Company shall reimburse the Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
Section 6. Conditions of Underwriter's Obligations.
The obligations of the Underwriter 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:
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(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 instituted or threatened or, to the knowledge of the Company
or the Underwriter, contemplated by the Commission; no stop order suspending
the sale of the Notes in any jurisdiction designated by the Underwriter
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 Underwriter, 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 the
satisfaction of the Underwriter. 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 Underwriter of such timely filing.
(b) The Underwriter shall have received an opinion from Xxxxxx X. Xxxxxx,
Esq., Associate General Counsel for the Company, dated as of the Closing Time
and in form and substance satisfactory to counsel for the Underwriter, 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 and the Remarketing Agreement have been duly
authorized, executed and delivered by the Company and (assuming the due
authorization, execution and delivery of the Indenture and the Remarketing
Agreement by the Trustee and the Remarketing Agent, respectively) are valid
and binding agreements of the Company enforceable against the Company in
accordance with their 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,
(B) general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (C) in the case of the
Remarketing Agreement, any law limiting rights of indemnity or
contribution.
(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 have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with
the terms of the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee) and issued to and paid for by the
Underwriter 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 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.
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(viii) The execution and delivery of this Agreement, the Remarketing
Agreement and the Indenture by the Company, the issuance and sale of the
Notes and the fulfillment of this Agreement, the Remarketing 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 in
effect on the date of such opinion which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by this
Agreement and that such counsel expresses no opinion as to the securities
or Blue Sky laws of the various jurisdictions in which the Notes are to be
offered.
(ix) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, including each Incorporated Document when such
Incorporated Document was filed or became effective, or if any such
Incorporated Document was amended, when such amendment was filed or became
effective, appeared on their face to be appropriately responsive in all
material respects to the applicable requirements of the 1933 Act or the
1934 Act, as the case may be, except that in each case such counsel 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 Remarketing 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, the
Remarketing Agreement and the Indenture will not conflict with or
constitute a breach of or a default (with the passage of time or otherwise)
under 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 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 Underwriter and counsel
for the Underwriter, 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
9
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 that the Prospectus
(including the Incorporated Documents) as of its date and as of the Closing
Time contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that such counsel need express no opinion with respect
to the financial statements, schedules and other financial data included or
incorporated by reference in the Registration Statement or Prospectus or
with respect to the Form T-1.
(c) The Underwriter shall have received an opinion from Xxxxx & Wood LLP,
counsel to the Underwriter, dated as of the Closing Time and in form and
substance satisfactory to the Underwriter.
(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 Underwriter 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 Statement has been issued and, to the best of such officer's
knowledge, no proceedings for that purpose have been initiated or threatened
by the Commission.
(e) Comfort Letter. On the date hereof, the Underwriter 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 Underwriter,
containing statements and information of a type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; and, if financial
statements for any assets, business or entity acquired by the Company are
included or incorporated by reference in the Registration Statement or the
Prospectus, the Underwriter shall have received a similar "comfort letter"
from a firm of independent public accountants, dated as of the date hereof and
in form and substance satisfactory to the Underwriter, with respect to such
financial statements and any financial information with respect to such
assets, business or entity, as the case may be, contained or incorporated by
reference in the Registration Statement and the Prospectus. Without limitation
to the foregoing, the letter delivered by the Company's independent public
accountants shall state that nothing has come to their attention that caused
them to believe that at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding capital stock of
the Company or any increase in consolidated long-term debt of the Company or
any decrease in the stockholders' equity of the Company, in each case as
compared with the amounts shown on the most recent consolidated balance sheet
of the Company incorporated by reference in the Registration Statement and
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated net sales and operating revenues or net income of the
Company, except in each
10
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 Underwriter and the Company.
(f) Subsequent Delivery of Comfort Letter. At the Closing Time, the
Underwriter shall have received from each firm of independent public
accountants which delivered a letter pursuant to subsection (e) of this
Section, 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 Underwriter 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.
(h) Tax Opinion. The Underwriter shall have received an opinion from
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, dated as of
the Closing Time and in form and substance satisfactory to counsel for the
Underwriter, to the effect that although the discussion in the Prospectus
under the caption "Certain United States Federal Tax Considerations" does not
purport to discuss all possible United States federal income tax consequences
of the purchase, ownership, and disposition of the Notes, in the opinion of
such counsel, such discussion constitutes, in all material respects, a fair
and accurate summary of the United States federal income tax consequences of
the purchase, ownership, and disposition of the Notes, based upon current law
and subject to the qualifications set forth therein.
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 the
Underwriter 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, and except that the indemnity
and contribution agreements set forth in Sections 7 and 8 hereof and the
provisions of Section 9 hereof shall remain in effect.
Section 7. Indemnification.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
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
Underwriter), 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
Underwriter), 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
11
(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 Underwriter), 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, the
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 the Underwriter; or (C)
as to which the 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 the Underwriter pertaining to the sale of the Notes
pursuant to which the Underwriter may be required to indemnify the Company for
such loss, liability, claim, damage or expense.
(b) Indemnification of the Company. The 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 the
Underwriter 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 the Underwriter or any person controlling the 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, the
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. The 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 the
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 the Underwriter or such controlling
person and the Company, and the 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 the 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 the 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 the Underwriter and all such controlling persons, which firm
shall be designated in writing by the Underwriter, on behalf of the
Underwriter and all such controlling persons).
12
(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 the Underwriter
pursuant to this Section 7, the 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 Underwriter 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 the 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 Underwriter, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and
the Underwriter, on the other hand, from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and of the Underwriter, on the other hand, in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages and expenses. The relative benefits received by
the Company, on the one hand, and the Underwriter, 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 as set forth
on the cover page of the Prospectus, on the one hand, and the total
underwriting discounts and commissions received by the Underwriter, on the
other hand, bear to the total purchase price of the Notes. The relative fault
of the Company, on the one hand, and the Underwriter, on the other hand, shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the provisions of this Section 8, the Underwriter
shall not be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) 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 the Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the 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 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 the Underwriter or any controlling
person of the Underwriter, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
13
Section 10. Termination.
(a) The Underwriter 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
a whole, (ii) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the effect
of which shall be such as to make it, in the reasonable judgment of the
Underwriter, impracticable to market or to enforce contracts for sale of the
Notes or other debt securities, (iii) trading in any securities of the Company
shall have been suspended by the Commission or a national securities exchange
in the United States, or if trading generally on the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by said exchange or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, (iv) any nationally recognized
securities rating agency in the United States shall have publicly announced
that it has (A) placed the Notes or the Company's long-term debt generally on
what is commonly termed a "watch list" for possible downgrading or (B)
downgraded the Notes or the Company's long-term debt generally, 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. (Intentionally Omitted.)
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 Underwriter shall be directed to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx. Notices to
the Company shall be directed to it at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, attention of Vice President and Treasurer.
Section 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter 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,
including, without limitation, section 5-1401 of the New York General
Obligations Law.
14
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 Underwriter and the Company in accordance with its terms.
Very truly yours,
Occidental Petroleum Corporation
/s/ Xxxxx X. Xxx
By: _________________________________
Name: Xxxxx X. Xxx
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the
date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
/s/ X.X. XxXxxxx
By: _________________________________
Authorized Signatory
15
