EXHIBIT 1.1
OCCIDENTAL PETROLEUM CORPORATION
Medium-Term Senior Notes, Series D
Medium-Term Subordinated Notes, Series A
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
April 21, 2005
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Citigroup Global Markets Inc.
390 Greenwich Street, 4th Floor
New York, NY 10013
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010
J.P. Morgan Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
Occidental
Petroleum Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of Banc of
America Securities LLC, Citigroup
Global Markets Inc., Credit Suisse First
Boston LLC, J.P. Morgan Securities Inc.
and Morgan Stanley & Co. Incorporated
(each an "Agent" and collectively, the
"Agents") with respect to the issue and
sale by the Company of its Medium-Term
Senior Notes, Series D (the "Senior Notes")
and its Medium-Term Subordinated
Notes, Series A (the "Subordinated Notes"
and, together with the Senior Notes,
the "Notes"). The Senior Notes are to be
issued pursuant to an indenture (the
"Senior Indenture," which term, for the
purpose of this Agreement, shall include
the Officers' Certificate delivered from
time to time pursuant to Sections 201
and 301 of the Senior Indenture, dated as
of April 1, 1998, between the Company
and The Bank of New York, as trustee (the
"Trustee"), as amended by supplemental
indenture from time to time, including,
without limitation, the Second
Supplemental Indenture to Senior Indenture
and Subordinated Indenture, dated as
of April 21, 2005, between the Company and
the Trustee (the "Second Supplemental
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Indenture"). The Subordinated Notes are to
be issued pursuant to an indenture
(the "Subordinated Indenture," which term,
for the purpose of this Agreement,
shall include the Officers' Certificate
delivered from time to time pursuant to
Sections 201 and 301 of the Subordinated
Indenture, including, without
limitation, the Officers' Certificate dated
June 30, 1999), dated as of January
20, 1999, between the Company and the
Trustee, as amended by supplemental
indenture from time to time, including,
without limitation, the First
Supplemental Indenture to Senior Indenture
and Subordinated Indenture, dated as
of March 6, 2002, between the Company and
the Trustee, and the Second
Supplemental Indenture. The Senior
Indenture and the Subordinated Indenture are
herein referred to collectively as the
"Indentures." As of the date hereof, the
Company has authorized the issuance of up
to U.S. $1,500,000,000 aggregate
initial offering price (or its equivalent,
based upon the applicable exchange
rate at the time of issuance, in such
foreign currencies or currency units as
the Company shall designate at the time of
issuance) of Notes to be distributed
through or sold to the Agents pursuant to
the terms of this Agreement. It is
understood, however, that the Company may
from time to time authorize the
issuance of additional Notes and that, at
the option of the Company, such Notes
may be distributed through or sold to the
Agents pursuant to the terms of this
Agreement, all as though the issuance of
such Notes were authorized as of the
date hereof.
This Agreement
provides both for the sale of Notes by the Company to
purchasers, in which case the Agents will
act as agents of the Company in
soliciting Note purchasers, and (as may
from time to time be agreed to by the
Company and one or more Agents) to such
Agent or Agents as principal for resale
to purchasers. In addition, notwithstanding
anything herein to the contrary, the
Company may, without the consent of the
Agents, solicit or accept offers to
purchase Notes from any person for their
account ("direct placements"). It is
understood that the Agents are not acting
as agents of the Company in direct
placements.
Subject to the
terms and conditions stated herein and subject to the
reservation by the Company of the right to
sell Notes directly on its own behalf
and to any person, and to designate and
select additional agents to become
parties to this Agreement, which agency may
be on an on-going basis or, upon
notice to the Agents, a one-time basis, the
Company hereby (i) appoints each
Agent as an agent of the Company for the
purpose of soliciting offers to
purchase the Notes from the Company by
others and (ii) agrees that whenever the
Company determines to sell Notes directly
to an Agent as principal for resale to
others, it will enter into a Terms
Agreement relating to such sale in accordance
with the provisions of Section 2(b) hereof.
Each Agent will make reasonable
efforts to assist the Company in obtaining
performance by each purchaser whose
offer to purchase Notes from the Company
has been solicited by such Agent, as
agent, and accepted by the Company, but
such Agent shall not have any liability
to the Company in the event any such
purchase is not consummated for any reason.
The Company has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on
Form S-3 (No. 333-123324), for the
registration of, among other securities,
senior debt securities and subordinated
debt securities, including the Notes, under
the Securities Act of 1933, as
amended (the "1933 Act"), and the offering
thereof from time to time in
accordance with Rule 415 of the rules and
regulations of the Commission under
the 1933 Act (the "1933 Act Regulations").
Such registration statement, as
amended, has been declared effective by the
Commission and each of the
Indentures has been qualified under the
Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration
statement (as
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amended, and any further registration
statements which may be filed by the
Company for the purpose of registering
additional Notes and which the Company
and the Agents agree are to be covered by
this Agreement) and the prospectus
constituting a part thereof, together with
any prospectus supplement relating to
the Notes, including, in each case, all
Incorporated Documents (as hereinafter
defined), as from time to time amended or
supplemented by the filing of
documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are
referred to herein as the "Registration
Statement" and the "Prospectus,"
respectively, except that, if any revised
prospectus or prospectus supplement shall
be provided to the Agents by the
Company for use in connection with the
offering of the Notes that is not
required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall
refer to such revised prospectus or
prospectus supplement, as the case may be,
from and after the time it is first
provided to the Agents for such use. If the
Company files a related registration
statement with the Commission pursuant to
Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration
Statement"), then, after such filing,
all references to the "Registration
Statement" shall include the Rule 462(b)
Registration Statement. Any reference
herein to the Registration Statement, any
preliminary prospectus or the Prospectus
shall be deemed to refer to and include
the documents, financial statements and
schedules incorporated, or deemed to be
incorporated, by reference therein (other
than information in such documents,
financial statements and schedules that is
deemed not to be filed) pursuant to
Item 12 of Form S-3 under the 1933 Act, and
any reference to any amendment or
supplement to the Registration Statement or
the Prospectus shall be deemed to
refer to and include any documents,
financial statements and schedules filed by
the Company with the Commission under the
1934 Act and so incorporated, or
deemed to be incorporated, by reference
(other than information in such
documents, financial statements and
schedules that is deemed not to be filed)
(such incorporated documents, financial
statements and schedules being herein
called the "Incorporated Documents").
Notwithstanding the foregoing, for
purposes of this Agreement any prospectus
supplement prepared or filed with
respect to an offering pursuant to the
Registration Statement of a series of
securities other than the Notes shall not
be deemed to have supplemented the
Prospectus. For purposes of this Agreement,
all references to the Registration
Statement, Prospectus or preliminary
prospectus or to any amendment or
supplement thereto shall be deemed to
include any copy filed with the Commission
pursuant to its Electronic Data Gathering,
Analysis and Retrieval system
("EDGAR").
Notwithstanding
anything herein to the contrary, the Company and each of
the Agents agree that the Agents shall have
no obligations under this Agreement
with respect to the Subordinated Notes
unless and until the Company shall have
delivered to each of the Agents written
evidence of the ratings of the
Subordinated Notes from each of Moody's
Investors Service, Inc., and Standard &
Poor's Corporation, or their respective
successors, or other evidence of such
ratings which is reasonably satisfactory to
the Agents.
SECTION 1. Representations and Warranties;
Additional Certifications.
(a) The Company represents and
warrants to each Agent as of the date
hereof, as of the date of each acceptance
by the Company of an offer for the
purchase of Notes (whether through an Agent
as agent or from an Agent as
principal), as of the date of each delivery
of Notes by the Company to the
purchasers (whether through an Agent as
agent or to an Agent as principal) (the
date of each such delivery to an Agent as
principal being hereafter referred to
as a
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"Settlement Date"), and as of the dates
referred to in Section 6(a) hereof (each
of the dates referenced above being
referred to hereafter as a "Representation
Date"), as follows:
(i) The
Incorporated Documents, when they were filed or became
effective (or,
if an amendment with respect to any such Incorporated
Document was filed or
became effective, when such amendment was filed or
became
effective) with the Commission, as the case may be, complied in
all
material
respects with the requirements of the 1934 Act and the rules
and
regulations of
the Commission under the 1934 Act (the "1934 Act
Regulations"),
and any Incorporated Documents filed subsequent to the date
hereof and prior
to the termination of the offering of the Notes, will,
when they are
filed with the Commission, comply in all material respects
with the
requirements of the 1934 Act and the 1934 Act Regulations; no
such
Incorporated
Document, when it was filed or became effective (or, if an
amendment with
respect to any such Incorporated Document was filed or
became
effective, when such amendment was filed or became effective)
with
the Commission,
contained, and no Incorporated Document filed subsequent to
the date hereof
and prior to the termination of the offering of the Notes
will contain, an
untrue statement of a material fact or omitted, or will
omit, to state a
material fact required to be stated therein or necessary
to make the
statements therein, in the light of the circumstances under
which they were
or will be made, not misleading.
(ii) Each
preliminary prospectus, if any, relating to the Notes
filed as part of
the Registration Statement as originally filed or as part
of any amendment
thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so
filed, and the Registration Statement, at the time it
became
effective, complied in all material respects with the provisions
of
the 1933 Act and
the 1933 Act Regulations; at the applicable Representation
Date, the
Registration Statement and the Prospectus, and any supplement
or
amendment
thereto relating to the Notes, comply and will comply in all
material
respects with the provisions of the 1933 Act and the 1933 Act
Regulations; and
(a) the Registration Statement and any such supplement or
amendment
thereto relating to the Notes, at all such times did not and
will
not contain an
untrue statement of a material fact or omit to state a
material fact
required to be stated therein or necessary to make the
statements
therein not misleading and (b) the Prospectus, and any such
supplement or
amendment thereto relating to the Notes, at all such times
did not and will
not contain an untrue statement of a material fact or omit
to state a
material fact required to be stated therein or necessary to
make
the statements
therein, in the light of the circumstances under which they
were or will be
made, not misleading; except that this representation and
warranty does
not apply to statements or omissions in the Registration
Statement, the
Prospectus or any preliminary prospectus, or any amendment
or supplement
thereto, made in reliance upon information furnished to the
Company in
writing by or on behalf of the Agents expressly for use therein
or to those
parts of the Registration Statement that constitute the
Trustee's
Statements of Eligibility on Form T-1 under the 1939 Act (the
"Forms T-1").
There is no contract or document of a character required to
be described in
the Registration Statement or the Prospectus or to be filed
as an exhibit to
the Registration Statement that is not described or filed
as required. In
the event that the Registration Statement (including any
prospectus filed
as part of the Registration Statement), any preliminary
prospectus or
the Prospectus or any amendment or supplement to any of the
foregoing was or
is filed electronically pursuant to EDGAR,
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then the
Registration Statement (including any prospectus filed as part
thereof), such
preliminary prospectus, the Prospectus and any such
amendment or
supplement delivered to the Agents for use in connection with
the offering of
the Notes was or will be, as the case may be, identical (as
to content) to
the electronically transmitted copy thereof filed with the
Commission
pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(iii) This Agreement,
the Indentures, the Notes and any applicable
Terms Agreement
have been duly authorized by the Company and conform in all
material
respects to the descriptions thereof in the Prospectus.
(iv) The
Indentures have been duly qualified under the 1939 Act and
(assuming the
due execution and delivery thereof by the Trustee) are, and
the Notes (when
executed by the Company and authenticated in accordance
with the
appropriate Indenture and delivered to and paid for by the
purchasers
thereof) will be, the legal, valid and binding obligations of
the Company,
enforceable against the Company in accordance with their
terms, except
(x) as such enforceability may be subject to or limited by
(A) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or
hereafter in effect relating to or affecting the enforcement of
creditors'
rights generally, (B) the applicability or effect of any
fraudulent
transfer, preference or similar law, (C) general principles of
equity
(regardless of whether such enforcement is considered in a
proceeding in
equity or at law), (D) requirements that a claim with respect
to any Notes
denominated other than in United States dollars (or a judgment
denominated
other than in United States dollars in respect of such claim)
be converted
into United States dollars at a rate of exchange prevailing on
a date
determined pursuant to applicable law, (E) governmental authority
to
limit, delay or
prohibit the making of payments outside the United States
or in a foreign
currency or currency units or (F) the effect of general
rules of
contract law that limit the enforceability of provisions
requiring
indemnification
of a party for liability for its own action or inaction to
the extent the
action or inaction involves gross negligence, recklessness,
willful
misconduct or unlawful conduct and (y) that the waiver contained
in
Section 515 of
each of the Indentures may be deemed unenforceable. The
Notes (when
executed by the Company and authenticated in accordance with
the terms of the
appropriate Indenture and delivered to and paid for by the
purchasers
thereof) will be entitled to the benefits of the appropriate
Indenture
(subject to the exceptions set forth in the preceding
sentence).
(v) The
Company and each of Occidental Chemical Holding
Corporation, a
California corporation, and Occidental Oil and Gas Holding
Corporation, a
California corporation formerly known as Occidental Oil and
Gas Corporation,
until such time as the fact that any such entity is no
longer majority
owned by the Company shall have been disclosed in the
Registration
Statement and the Prospectus (each a "Principal Domestic
Subsidiary" and
collectively the "Principal Domestic Subsidiaries") is a
validly existing
corporation in good standing under the laws of its state
of
incorporation. The Company and each Principal Domestic Subsidiary
has
full corporate
power and authority to own its respective properties and
carry on its
respective business as presently conducted, as described in
the Prospectus,
and is duly registered or qualified to conduct business,
and is in good standing, in each
jurisdiction in which it owns or leases
property or
transacts
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business and in
which such registration or qualification is necessary,
except as to
jurisdictions where the failure to do so would not have a
material adverse
effect on the Company and its subsidiaries, taken as a
whole. All of
the outstanding capital stock or other securities evidencing
equity ownership
of each Principal Domestic Subsidiary has been duly and
validly
authorized and issued and is fully paid and non-assessable,
and,
except as
otherwise disclosed in the Registration Statement and the
Prospectus, is
owned by the Company, directly or indirectly through
subsidiaries, free and clear of
any security interest, claim, lien or
encumbrance.
Except as otherwise disclosed in the Registration Statement
and the
Prospectus, there are no outstanding rights, warrants or options
to
acquire, or
instruments convertible into or exchangeable for, any shares of
capital stock or
other equity interest in any such Principal Domestic
Subsidiary,
except for rights, warrants or options held by the Company.
(vi) Except as
contemplated in the Prospectus or reflected therein
by the filing of
any amendment or supplement thereto or any Incorporated
Document, since
the date of the most recent consolidated financial
statements
included or incorporated by reference in the Registration
Statement and the
Prospectus, unless the Company has notified the Agents as
provided in
Section 3(d) hereof, there has not been any material adverse
change, or any
development which is reasonably likely to result in a
material adverse
change, in the consolidated financial condition or
consolidated
results of operations of the Company and its subsidiaries,
taken as a
whole.
(vii) The Company is
not in violation of its Restated Certificate of
Incorporation or
Bylaws, in each case, as amended. The execution and
delivery of this
Agreement by the Company, the issuance and sale of the
Notes and the
performance by the Company of its obligations under this
Agreement, the
Indentures and any applicable Terms Agreement will not
conflict with or
constitute a breach of or a default (with the passage of
time or
otherwise) under (A) the Restated Certificate of Incorporation
or
Bylaws of the
Company, in each case, as amended, (B) subject to the
Company's
compliance with any applicable covenants pertaining to its
incurrence of
unsecured indebtedness contained therein, any agreement or
instrument
(which is, individually or in the aggregate, material to the
Company and its
subsidiaries, taken as a whole) to which the Company or any
Principal
Domestic Subsidiary is a party or by which it is bound or any
of
them is bound or
to which any of the property or assets of the Company or
any Principal
Domestic Subsidiary is subject or (C) any order of any court
or governmental
agency or authority presently in effect and applicable to
the Company or
any Principal Domestic Subsidiary. Except for orders,
permits and
similar authorizations required under the securities or Blue
Sky laws of
certain jurisdictions, including jurisdictions outside the
United States,
or required of any securities exchange on which any of the
Notes might be
listed, no consent, approval, authorization or other order
of any
regulatory body, administrative agency or other governmental body
is
legally required
for the valid issuance and sale of the Notes. As of the
date of each
acceptance by the Company of an offer for the purchase of
Notes and as of
the date of each delivery of Notes by the Company, the
Company by such
acceptance or delivery, as the case may be, shall be deemed
to represent and
warrant to the Agents that, both immediately before and
immediately
after giving effect to such acceptance or delivery, the Company
shall be in
compliance with the requirements of any applicable covenants
pertaining to
its incurrence
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of unsecured
indebtedness contained in the agreements or instruments
referred to in
clause (B) above.
(viii) To the best of the Company's knowledge, the accountants
who
have audited and
reported upon the consolidated financial statements filed
with the
Commission as part of the Registration Statement and the
Prospectus are
independent accountants as required by the 1933 Act. The
consolidated
financial statements included in the Registration Statement
and Prospectus,
or incorporated therein by reference, fairly present the
consolidated
financial position and results of operations of the entities
to which such
statements relate at the respective dates and for the
respective
periods to which they apply. Such consolidated financial
statements have
been prepared in accordance with generally accepted
accounting
principles consistently applied, except as set forth in the
Registration
Statement and Prospectus.
(b) Additional Certifications. Any
certificate signed by any officer of
the Company and delivered to an Agent or to
counsel for the Agents in connection
with an offering of Notes shall be deemed a
representation and warranty by the
Company to such Agent as to the matters
covered thereby on the date of such
certificate.
SECTION 2. Solicitations as Agents;
Purchases as Principals.
(a) Solicitations as Agents. On the
basis of the representations and
warranties herein contained, but subject to
the terms and conditions herein set
forth, each Agent agrees, as an agent of
the Company, to use its best efforts to
solicit offers to purchase the Notes upon
the terms and subject to the
conditions set forth herein and in the
Prospectus. The Agents are not authorized
to appoint sub-agents or to engage the
services of any other broker or dealer in
connection with the offer or sale of the
Notes as agents. In connection with the
solicitation of offers to purchase Notes,
the Agents are not authorized to
provide any written information relating to
the Company to any prospective
purchaser other than the Prospectus and the
Incorporated Documents.
The Company
reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the
Notes commencing at any time for any
period of time or permanently. Upon receipt
of instructions from the Company,
the Agents will forthwith suspend
solicitation of offers to purchase the Notes
from the Company until such time as the
Company has advised the Agents that such
solicitation may be resumed.
The Company
agrees to pay each Agent a commission, which such Agent is
hereby authorized to deduct from the sales
proceeds of each Note sold by the
Company as a result of a solicitation made
by such Agent, as an agent of the
Company, equal to the applicable percentage
of the principal amount of each such
Note, as set forth in Exhibit A hereto, or
as otherwise agreed upon between such
Agent and the Company. Without the consent
of the Company, no Agent may reallow
any portion of the commission payable
pursuant hereto to dealers or purchasers
in connection with the offer and sale of
any Notes as agents.
As an agent,
each Agent is authorized, except during periods of suspension
as provided in this Agreement, to solicit
offers to purchase the Notes. Each
Agent shall communicate to the Company,
orally or in writing, each reasonable
offer to purchase Notes received by such
Agent,
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as agent. Each Agent shall have the right
in its discretion reasonably exercised
to reject any offer to purchase the Notes
received by such Agent that it does
not deem reasonable, and any such rejection
shall not be deemed a breach of such
Agent's agreements contained herein. The
Company shall have the sole right to
accept offers to purchase the Notes and may
reject any such offer in whole or in
part, and any such rejection shall not be
deemed to be a breach of any agreement
of the Company contained herein. The
purchase price, interest rate, or formula,
maturity date and other terms of the Notes
agreed upon by the Company shall be
set forth in a pricing supplement to the
Prospectus to be prepared following
each acceptance by the Company of an offer
for the purchase of Notes (a "Pricing
Supplement"). All Notes will be issued at
100% of their principal amount, unless
otherwise agreed to by the Company. Each
Agent acknowledges and agrees that any
funds which such Agent receives in respect
of a purchase of Notes, which
purchase has been solicited by such Agent,
as agent of the Company, will be
received, held and disposed of by such
Agent, as agent of the Company.
(b) Purchases as Principal. Each sale
of Notes to an Agent as principal
shall be made in accordance with the terms
contained herein and pursuant to a
separate agreement which will provide for
the sale of such Notes to, and the
purchase and any reoffering thereof by,
such Agent. Each such separate agreement
(which may be an oral agreement if
confirmed within 24 hours thereafter by an
exchange of any standard form of written
telecommunication (including facsimile
transmission) between the Agent and the
Company) is herein referred to as a
"Terms Agreement." Unless the context
otherwise requires, each reference
contained herein to "this Agreement" shall
be deemed to include any applicable
Terms Agreement between the Company and the
Agent. Each such Terms Agreement,
whether oral (and confirmed in writing,
which confirmation may be by facsimile
transmission) or in writing, shall be with
respect to such information (as
applicable) as is specified in Exhibit B
hereto. An Agent's commitment to
purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made
on the basis of the representations and
warranties of the Company herein
contained and shall be subject to the terms
and conditions herein set forth.
Unless expressly prohibited by the Company
pursuant to the Terms Agreement
relating to a sale of Notes to the Agent,
each Agent is authorized to utilize a
selling or dealer group in connection with
the resale of the Notes purchased
pursuant to such Terms Agreement. In
connection with any brokers or dealers
whose services are engaged by any Agent
with respect to the offer or sale of the
Notes, such Agent agrees that it will use
its best efforts to cause such brokers
or dealers to comply with the terms and
provisions of this Agreement, the
applicable provisions of the 1933 Act and
the 1934 Act and the applicable rules
and regulations of the Commission
thereunder, the applicable rules and
regulations of the National Association of
Securities Dealers, Inc. and the
applicable rules of any securities exchange
having jurisdiction over the
offering of the Notes.
(c) Administrative Procedures.
Administrative procedures with respect to
the sale of Notes shall be agreed upon from
time to time by the Agents and the
Company (the "Procedures"). The Procedures
initially agreed upon shall be those
set forth in Exhibit C hereto. The Agents
and the Company agree to perform the
respective duties and obligations
specifically provided to be performed by the
Agents and the Company herein and in the
Procedures.
(d) Foreign Offerings. Each Agent
represents and agrees that (i) it has
not solicited, and will not solicit, offers
to purchase any of the Notes from,
(ii) it has not sold, and will not sell,
any of the Notes to, and (iii) it has
not distributed, and will not distribute,
the Prospectus to, any
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person or entity in any jurisdiction
outside of the United States (collectively
"Foreign Offers and Sales") except, in each
case, in compliance in all material
respects with all applicable laws and, in
connection with the initial offering
of, or subscription for, any of the Notes,
only with the prior written consent
of the Company and in full compliance with
any requirements and procedures
established by the Company with respect to
any such Foreign Offers and Sales.
For the purposes of this paragraph, "United
States" means the United States of
America, its territories, its possessions
(including the Commonwealth of Puerto
Rico) and other areas subject to its
jurisdiction.
In particular
and without limiting the generality of the foregoing:
(i) Each
Agent, severally and not jointly, agrees to distribute, in
connection with
any Foreign Offers and Sales, only those Prospectuses used
in connection
therewith that have been appropriately "stickered" for use in
the jurisdiction
in which such Foreign Offers and Sales are to be made.
(ii) With
respect to the United Kingdom, each Agent, severally and
not jointly,
represents and agrees that (A) in relation to Notes which have
a maturity of
one year or more, it has not offered or sold and, prior to
the expiry of a
period of six months from the date of issue of such Notes,
will not offer
or sell any such Notes to persons in the United Kingdom
except to
persons whose ordinary activities involve them in acquiring,
holding,
managing or disposing of investments (as principal or agent)
for
the purposes of
their businesses or otherwise in circumstances which have
not resulted and
will not result in an offer to the public in the United
Kingdom within
the meaning of the Public Offers of Securities Regulations
1995, (B) it has
only communicated or caused to be communicated and will
only communicate
or cause to be communicated any invitation or inducement
to engage in
investment activity (within the meaning of section 21 of the
Financial
Services and Markets Act 2000 (the "FSMA")) received by it in
connection with
the issue or sale of any Notes in circumstances in which
section 21(1) of
the FSMA does not apply to the Company and (C) it has
complied and
will comply with all applicable provisions of the FSMA with
respect to
anything done by it in relation to the Notes in, form or
otherwise
involving the United Kingdom.
(iii) With respect to
the Provinces of Canada (the "Provinces"), each
Agent, severally
and not jointly, represents and agrees that, in connection
with the initial
offering of any of the Notes, (A) it will not, directly or
indirectly,
offer or sell any of the Notes in any of the Provinces or to,
or for the
benefit of, any resident of any of the Provinces after the date
(the "Canadian
Ending Date") set by the Company for the end of the offer of
such Notes, and,
without the prior written consent of the Company, it will
not distribute
or permit to be distributed any Prospectus in any of the
Provinces or to,
or for the benefit of, any resident of any of the
Provinces after
the Canadian Ending Date, (B) with respect to anything done
by such Agent in
relation to the Notes in, from, or otherwise involving,
any of the
Provinces, it has complied, and will comply, in all material
respects, with
all applicable provisions of the securities legislation of
Canada and the
Provinces (the "Canadian Securities Legislation")
(including,
without limitation, the conveyance, or the provision of
assistance to
the Company in conveying, any right of rescission, damages or
other right as
required by applicable Canadian Securities Legislation) so
that any offer
or
9
<PAGE>
sale of any of
the Notes in the Provinces, or any of them, will qualify for
exemptions from
prospectus, registration and equivalent requirements, or
exemptions from
other applicable requirements, as prescribed by the
Canadian
Securities Legislation in force at the time when such offer or
sale is made, provided
that such offer or sale is made pursuant to the
Prospectus, as
supplemented to the extent required by the Canadian
Securities
Legislation (the Prospectus, as so supplemented, hereinafter
referred to as
the "Canadian Offering Memorandum"), (C) with respect to
Notes offered or
sold, or to be offered or sold, by such Agent, or Notes
purchased, or to
be purchased, by such Agent, it has provided, and will
provide,
investors, where required pursuant to the provisions of
applicable
Canadian
Securities Legislation, with (1) the Canadian Offering
Memorandum,
and (2) a list
of the documents filed by the Company with the Commission
pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent
to the date of
the Prospectus dated April 7, 2005, and will obtain from
each of such
investors an acknowledgment in form reasonably satisfactory to
the Company, and
(D) with respect to any such sale of the Notes made by
such Agent, such
Agent will effect all necessary filings in connection with
such sale,
including, without limitation, any required filings of (x)
reports of
trades and (y) the Canadian Offering Memorandum, in each case
with provincial
securities commissions, as required pursuant to the
provisions of
applicable Canadian Securities Legislation.
SECTION 3. Covenants of the Company.
The Company
covenants with each Agent as follows:
(a) Notice of Certain Events. The
Company will notify the Agents promptly
(i) of the effectiveness of any
post-effective amendment to the Registration
Statement (other than a post-effective
amendment relating solely to an offering
of securities other than the Notes), (ii)
of the transmittal to the Commission
for filing of any supplement to the
Prospectus (other than a Pricing Supplement
or a supplement relating solely to an
offering of securities other than the
Notes) or any document to be filed pursuant
to the 1934 Act which will be
incorporated by reference in the
Prospectus, (iii) of the receipt of any
comments from the Commission with respect
to the Registration Statement, the
Rule 462(b) Registration Statement or the
Prospectus, (iv) of any request by the
Commission for any amendment to the
Registration Statement or the Rule 462(b)
Registration Statement or any amendment or
supplement to the Prospectus or for
additional information, (v) of the issuance
by the Commission of any stop order
suspending the effectiveness of the
Registration Statement or the Rule 462(b)
Registration Statement or the initiation of
any proceedings for that purpose and
(vi) of the receipt of notice from one or
more of Standard & Poor's Corporation,
Moody's Investors Service, Inc. and Fitch
IBCA, Inc. (or any of their respective
successors) that the Notes have been or are
going to be placed on what is
commonly termed a "watch list" for possible
downgrading. The Company will make
every reasonable effort to prevent the
issuance of any such stop order and, if
any such stop order is issued, to obtain
the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed
Filings. The Company will give the Agents
advance notice of its intention to file any
additional registration statement
with respect to the registration of
additional Notes to be covered by this
Agreement, any amendment to the
Registration Statement (including any Rule
462(b) Registration Statement) or any
amendment or supplement
10
<PAGE>
to the prospectus included in the
Registration Statement at the time it became
effective or any amendment or supplement to
the Prospectus (other than a Pricing
Supplement or an amendment or supplement
relating solely to an offering of
securities other than the Notes), whether
by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise,
and will furnish the Agents with copies
of any such amendment or supplement, and
will not file any such amendment or
supplement of which the Agents shall not
previously have been advised or to
which the Agents shall reasonably object in
writing, unless, in the judgment of
the Company and its counsel, such amendment
or supplement is necessary to comply
with law.
(c) Copies of the Registration
Statement, the Rule 462(b) Registration
Statement and the Prospectus. The Company
will deliver to each of the Agents one
signed and as many conformed copies of the
Registration Statement (as originally
filed), the Rule 462(b) Registration
Statement, if any, and of each amendment
thereto (including the Incorporated
Documents and any exhibits filed therewith
or incorporated by reference therein) as
the Agents may reasonably request. The
Company will furnish to the Agents as many
copies of the Prospectus (as amended
or supplemented) as the Agents shall
reasonably request so long as the Agents
are required to deliver a Prospectus in
connection with sales or solicitations
of offers to purchase the Notes.
(d) Revisions of Prospectus--Material
Changes. So long as the Agents are
required to deliver a Prospectus in
connection with sales or solicitations of
offers to purchase the Notes, if any event
shall occur or condition exist as a
result of which it is necessary, in the
opinion of counsel for the Company and
of counsel for the Agents, to further amend
or supplement the Prospectus in
order that the Prospectus will not include
an untrue statement of a material
fact or omit to state any material fact
necessary in order to make the
statements therein not misleading, in the
light of the circumstances existing at
the time it is delivered to a purchaser, or
if it shall be necessary, in the
opinion of such counsel, to amend or
supplement the Registration Statement or
the Prospectus in order to comply with the
requirements of the 1933 Act or the
1933 Act Regulations, prompt notice shall
be given, and confirmed in writing, to
the Agents to cease the solicitation of
offers to purchase the Notes in their
capacity as agents and to cease sales of
any Notes the Agents may then own as
principal. In addition, if any Agent holds
Notes purchased for resale pursuant
to a Terms Agreement during the period
ending 90 days after the date of
execution of such Terms Agreement, the
Company will promptly prepare and file an
amendment or supplement to the Prospectus
so that the Prospectus, as amended or
supplemented, will not include any untrue
statement of a material fact or omit
to state any material fact necessary in
order to make the statements therein not
misleading, in the light of the
circumstances existing at the time it is
delivered to the Agents.
(e) Earnings Statements. The Company
will make generally available to its
security holders, in each case as soon as
practicable but in any event not later
than 15 months after the acceptance by the
Company of an offer to purchase Notes
hereunder, a consolidated earnings
statement (which need not be audited)
covering the twelve-month period beginning
after the latest of (i) the effective
date of the Registration Statement, (ii)
the effective date of the most recent
post-effective amendment to the
Registration Statement to become effective prior
to the date of such acceptance and (iii)
the date of the Company's most recent
annual report on Form 10-K filed with the
Commission prior to the date of such
acceptance, which earnings statement will
satisfy the provisions of Section
11(a) of the 1933 Act (and, at the option
of the Company, Rule 158 of the 1933
Act Regulations). Nothing in this Section
3(e) shall require the
11
<PAGE>
Company to make such earnings statement
available more frequently than once in
any period of twelve months.
(f) Blue Sky Qualifications. The
Company will endeavor, in cooperation
with the Agents, to qualify the Notes for
offering and sale under the applicable
securities laws of such states and other
jurisdictions as the Agents may
reasonably designate (provided no
registration shall be required in any
jurisdiction outside the United States),
and will maintain such qualifications
in effect for as long as may be required
for the distribution of the Notes;
provided, however, that the Company will
promptly notify the Agents of any
suspension of any such qualifications; and
provided, further, that the Company
shall not be obligated to register or
qualify as a foreign corporation or take
any action which would subject it to
general service of process in any
jurisdiction where it is not now so
subject.
(g) Suspension of Certain Obligations.
The Company shall not be required
to comply with the provisions of
subsections (b), (c) or (d) of this Section 3
or the provisions of subsection (a), (b) or
(c) of Section 6 during any period
from the time the Agents shall have been
notified to suspend the solicitation of
offers to purchase the Notes in their
capacity as agent or resales of Notes
purchased pursuant to a Terms Agreement to
the time the Company shall determine
that solicitation of offers to purchase the
Notes through any Agent or Agents or
resales as principal of Notes purchased
pursuant to a Terms Agreement by any
Agent or Agents should be resumed.
Notwithstanding the foregoing, if any Agent
holds Notes purchased for resale pursuant
to a Terms Agreement, the Company
shall comply with the provisions of
subsections (b), (c) and (d) of this Section
3 and the provisions of subsections (a),
(b) and (c) of Section 6 during the
90-day period from and including the date
of execution of such Terms Agreement;
provided, however, that the Company shall
have the right, in its reasonable
business judgment, to suspend such
compliance during such 90-day period
(provided that such suspension may not be
effected during the period from and
including the date of execution of such
Terms Agreement to and including the
Settlement Date with respect to such Terms
Agreement), in which event, such
90-day period shall be extended by the
number of days included in any such
period of suspension. However, prior to
instructing the Agents to resume the
solicitation of offers to purchase Notes or
prior to purchasing Notes from the
Company as principal, the Company shall be
required to comply with the
provisions of subsections (a), (b) and (c)
of Section 6 by delivering or causing
to be delivered the certificates, opinions
and letters that would have otherwise
been required under in connection with the
filing of an Incorporated Document
(including any amendments to such
documents).
SECTION 4. Payment of Expenses.
The Company will
pay all expenses incident to the performance of its
obligations under this Agreement,
including:
(i) The
preparation and filing of the Registration Statement, the
Rule 462(b)
Registration Statement and all amendments thereto and the
Prospectus and
any amendments or supplements thereto and all Incorporated
Documents;
(ii) The
preparation, filing and printing of this Agreement;
12
<PAGE>
(iii) The preparation,
printing, issuance and delivery of the Notes;
(iv) The fees
and disbursements of the Trustee and its counsel, of
any calculation
agent or exchange rate agent and of The Depository Trust
Company;
(v) The
reasonable fees and disbursements of counsel to the Agents
incurred in
connection with the establishment of the program contemplated
by this
Agreement; provided, however, that in any sale of Notes to one
or
more Agents
acting as principal, the Company's obligations, if any, to pay
the reasonable
fees and disbursements of such counsel shall be as agreed
upon by the
Company and the Agent(s) participating in such transaction and
reflected in the
applicable Terms Agreement;
(vi) The
qualification of the Notes under securities laws in
accordance with
the provisions of Section 3(f) hereof, including filing
fees and the
reasonable fees and disbursements of counsel to the Agents in
connection
therewith and in connection with the preparation of any Blue
Sky
survey and any
legal investment survey;
(vii) The printing and
delivery to the Agents in quantities as
hereinabove
stated of copies of the Registration Statement, the Rule 462(b)
Registration
Statement and any amendments thereto, and of the Prospectus
and any
amendments or supplements thereto relating to the Notes, and
the
delivery by the
Agents of the Prospectus and any amendments or supplements
thereto in
connection with solicitations of offers to purchase, or
confirmations of
sales of, the Notes;
(viii) The preparation, printing and delivery to the Agents of
copies
of the
Indentures;
(ix) Any fees
charged by rating agencies for the rating of the
Notes;
(x) The
fees and expenses, if any, incurred with respect to any
filing with the
National Association of Securities Dealers, Inc. relating
to the Agents'
obligations hereunder or under a Terms Agreement; and
(xi) Any
advertising and other out-of-pocket expenses of the Agents
incurred with
the prior written approval of the Company.
SECTION 5. Conditions of Obligations.
The obligations
of any Agent to solicit offers to purchase the Notes as
agent of the Company and the obligations of
any Agent to purchase Notes pursuant
to any Terms Agreement will be subject at
all times to the accuracy, as of the
applicable Representation Date, of the
representations and warranties on the
part of the Company herein and the
accuracy, as of the date made, of the
statements of the Company's officers made
in any certificate furnished pursuant
to the provisions hereof, to the
performance and observance by the Company of
all covenants and agreements herein
contained on its part to be performed and
observed and to the following additional
conditions precedent:
13
<PAGE>
(a) Opinion of Counsel for the
Company. On the date hereof, the Agents
shall have received an opinion from Robert
E. Sawyer, Esq., Associate General
Counsel for the Company, dated as of the
date hereof and in form and substance
satisfactory to counsel for the Agents, to
the effect that:
(i) The
Company has been duly incorporated and is validly existing
in good standing
under the laws of the State of Delaware. Each Principal
Domestic
Subsidiary is validly existing in good standing under the laws
of
its state of
incorporation.
(ii) The Company
has full corporate power and corporate authority to
enter into and
perform its obligations under this Agreement and the
Indentures, to
borrow money as contemplated in this Agreement and the
Indentures, and
to issue, sell and deliver the Notes.
(iii) This Agreement
has been duly authorized, executed and delivered
by the
Company.
(iv) Each of the
Indentures has been duly authorized, executed and
delivered by the
Company and (assuming the due authorization, execution and
delivery of that
Indenture by the Trustee) is a valid and binding agreement
of the Company
enforceable against the Company in accordance with its
terms, except
(x) as may be subject to or limited by (A) bankruptcy,
insolvency,
reorganization, moratorium or other similar laws now or
hereafter in
effect relating to creditors' rights generally, (B) the
applicability or
effect of any fraudulent transfer, preference or similar
law, (C) the
effect of general principles of equity (regardless of whether
enforcement is
sought in a proceeding in equity or at law), (D)
requirements
that a claim with respect to any security authenticated and
delivered under
that Indenture denominated other than in United States
dollars (or a
judgment denominated other than in United States dollars in
respect of such
claim) be converted into United States dollars at a rate of
exchange
prevailing on a date determined pursuant to applicable law, (E)
governmental
authority to limit, delay or prohibit the making of payments
outside of the
United States or in a foreign currency or currency units or
(F) the effect
of general rules of contract law that limit the
enforceability
of provisions requiring indemnification of a party for
liability for
its own action or inaction to the extent the action or
inaction
involves gross negligence, recklessness, willful misconduct or
unlawful
conduct, and (y) that the waiver contained in Section 515 of
each
of the
Indentures may be deemed unenforceable.
(v) No
consent or approval of any United States governmental
authority or
other United States person or United States entity is required
in connection
with the issuance or sale of the Notes other than
registration
thereof under the 1933 Act, qualification of the appropriate
Indenture under
the 1939 Act, and such registrations or qualifications as
may be necessary
under the securities or Blue Sky laws of the various
United States
jurisdictions in which the Notes are to be offered or sold
and the rules
and regulations of the National Association of Securities
Dealers, Inc.
The opinion expressed in this paragraph (v) is limited to
those consents
and approvals which, in such counsel's experience, are
normally
applicable to transactions of the type contemplated by this
Agreement.
14
<PAGE>
(vi) The Notes
have been duly authorized by the Company and, when
executed by the
Company and authenticated by the Trustee in accordance with
the terms of the
appropriate Indenture (assuming the due authorization,
execution and
delivery of that Indenture by the Trustee) and issued to and
paid for by the
purchasers thereof, will be entitled to the benefits of
that Indenture
and will be valid and binding obligations of the Company
enforceable
against the Company in accordance with their respective terms,
except (x) as
may be subject to or limited by (A) bankruptcy, insolvency,
reorganization,
moratorium or other similar laws now or hereafter in effect
relating to
creditors' rights generally, (B) the applicability or effect of
any fraudulent
transfer, preference or similar law, (C) the effect of
general
principles of equity (regardless of whether such enforcement is
sought in a
proceeding in equity or at law), (D) requirements that a claim
with respect to
any Notes denominated other than in United States dollars
(or a judgment
denominated other than in United States dollars in respect
of such claim)
be converted into United States dollars at a rate of
exchange
prevailing on a date determined pursuant to applicable law, (E)
governmental
authority to limit, delay or prohibit the making of payments
outside of the
United States or in foreign currency or currency unit, and
(F) the effect
of general rules of contract law that limit the
enforceability
of provisions requiring indemnification of a party for
liability for
its own action or inaction to the extent the action or
inaction
involves gross negligence, recklessness, willful misconduct or
unlawful
conduct, and (y) that the waiver contained in Section 515 of
each
of the
Indentures may be deemed unenforceable.
(vii) The Registration
Statement and any Rule 462(b) Registration
Statement has
become effective under the 1933 Act and each of the
Indentures has
been qualified under the 1939 Act, and, to the best of such
counsel's
knowledge, no stop order suspending the effectiveness of the
Registration
Statement or any Rule 462(b) Registration Statement has been
issued and no
proceedings for that purpose have been instituted or are
pending or
contemplated by the Commission.
(viii) The execution and delivery of this Agreement and each of
the
Indentures by
the Company, the issuance and sale of the Notes and the
performance of
this Agreement and the Indentures by the Company will not
(A) conflict
with the Restated Certificate of Incorporation or Bylaws of
the Company, in
each case, as amended, (B) violate or conflict with, or
result in any
contravention of, any statute, law or regulation to which the
Company or any
Principal Domestic Subsidiary or any of their respective
properties may
be subject or (C) violate or conflict with any judgment,
decree or order,
known to such counsel, after reasonable inquiry, of any
court or
governmental agency or authority entered in any proceeding to
which the
Company or any Principal Domestic Subsidiary was or is now a
party or by which it is
bound, except that such counsel may state that the
opinion set
forth in clause (B) of this paragraph (viii) is limited to
those statutes,
laws or regulations in effect as of the date of such
opinion which,
in such counsel's experience, are normally applicable to
transactions of
the type contemplated by this Agreement and that such
counsel
expresses no opinion as to the securities or Blue Sky laws of
the
various
jurisdictions in which the Notes are to be offered.
(ix) The
Registration Statement and the Rule 462(b) Registration
Statement, as of
their respective effective dates, and the Prospectus, as
of its date,
including each
15
<PAGE>
Incorporated Document
when such Incorporated Document was filed or became
effective, or if
any such Incorporated Document was amended, when such
amendment was
filed or became effective, appeared on their face to be
appropriately
responsive in all material respects to the applicable
requirements of
the 1933 Act or the 1934 Act, as the case may be, except
that in each
case such counsel may state that other than as set forth in
clause (x) of
this Section 5(a), such counsel assumes no responsibility for
the accuracy,
completeness or fairness of the statements contained in the
Registration
Statement or the Prospectus and such counsel need not express
an opinion as to
the financial statements, schedules and other financial
data included or
incorporated by reference therein or excluded therefrom,
or the exhibits
thereto, including the Form T-1.
(x) The
statements in the Prospectus under the captions
"Description of
the Notes," "Description of Senior Debt Securities,"
"Description of
Subordinated Debt Securities" and "Description of
Securities,"
insofar as they purport to summarize certain provisions of
documents
specifically referred to therein, fairly summarize such
provisions in
all material respects.
(xi) Except as
set forth in the Prospectus (including the
Incorporated
Documents), there is not pending or, to the knowledge of such
counsel, after
reasonable inquiry, threatened any action, suit or
proceeding against the
Company or any of its subsidiaries before or by any
court or
governmental agency or body, which is likely (to the extent not
covered by
insurance) to have a material adverse effect on the
consolidated
financial
condition of the Company and its subsidiaries, taken as a
whole.
(xii) To the best of
such counsel's knowledge, after reasonable
inquiry, there
is no contract or document of a character required to be
described in the
Registration Statement or the Prospectus or to be filed as
an exhibit to
the Registration Statement that is not described or filed as
required.
(xiii) To the best of such counsel's knowledge, after
reasonable
inquiry, the
Company is not in violation of its Restated Certificate of
Incorporation or
Bylaws, in each case, as amended.
(xiv) To the best of
such counsel's knowledge, after reasonable
inquiry, the
execution and delivery of this Agreement, the Indentures and
any applicable
Terms Agreement by the Company, the issuance and sale of the
Notes and the
performance by the Company of its obligations under this
Agreement, the
Indentures and any applicable Terms Agreement will not
conflict with or
constitute a breach of or a default (with the passage of
time or
otherwise) under, subject (except in respect of any Notes
issued
and sold on the
date of such opinion pursuant to an applicable Terms
Agreement) to
the Company's compliance with any applicable covenants
pertaining to
its incurrence of unsecured indebtedness, or result in the
creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the
Company pursuant to, any agreement or instrument to which
the Company is a
party or by which it is bound and that is, individually or
in the
aggregate, material to the Company and its subsidiaries taken as
a
whole.
To the best of such
counsel's knowledge, after reasonable inquiry,
the issuance and
sale as of the date of this Agreement of all of the
authorized
aggregate principal
16
<PAGE>
amount of the
Notes, both immediately before and after giving effect to
such issuance
and sale, would not conflict with or constitute breach of or
a default (with
the passage of time or otherwise) under any applicable
covenants
pertaining to the Company's incurrence of unsecured
indebtedness
contained in the
agreements or instruments referred to above.
In rendering the
foregoing opinions such counsel may state that with
respect to certain matters he has relied
upon advice of other counsel employed
by the Company who are more familiar with
such matters.
In addition,
such counsel shall state that he has participated in
conferences with officers and other
representatives of the Company, outside
counsel for the Company, representatives of
the independent public accountants
for the Company, representatives of the
Agents and counsel for the Agents, at
which conferences the contents of the
Registration Statement and Prospectus and
related matters were discussed and,
although he is not passing upon, and does
not assume any responsibility for the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement or the Prospectus (other than
as set forth in paragraph (x) above) and
has not made any independent check or
verification thereof, on the basis of the
foregoing, no facts have come to such
counsel's attention that lead him to
believe that either the Registration
Statement (including the Incorporated
Documents) at the time such Registration
Statement became effective (or if an
amendment to the Registration Statement or
an Annual Report on Form 10-K has been
filed by the Company with the Commission
subsequent to the effectiveness of the
Registration Statement and prior to the
date of such statement, then at the time
such amendment became effective or at
the time of the most recent such filing (to
the extent deemed to be incorporated
by reference therein) as the case may be),
contained an untrue statement of a
material fact or omitted to state a
material fact required to be stated therein
or necessary to make the statements therein
not misleading, or that the
Prospectus (including the Incorporated
Documents) as of the date of this
Agreement (and, if the opinion is being
given pursuant to Section 6(b) hereof as
a result of the Company having entered into
a Terms Agreement as contemplated by
the first paragraph of Section 6(b) or
having filed an Incorporated Document
described in the second paragraph of
Section 6(b), as of the Settlement Date
with respect to such Terms Agreement or as
of the filing date of such
Incorporated Document, as the case may be)
contained or contains an untrue
statement of a material fact or omitted or
omits to state a material fact
necessary to make the statements therein,
in the light of the circumstances
under which they were made, not misleading,
except that such counsel need
express no opinion with respect to the
financial statements, schedules and other
financial data included or incorporated by
reference in, or excluded from, the
Registration Statement or Prospectus or
with respect to the Forms T-1.
(b) Opinion of Counsel for the Agents.
On the date hereof, the Agents
shall have received an opinion from Sidley
Austin Brown & Wood LLP, counsel to
the Agents, dated as of the date hereof and
in form and substance satisfactory
to the Agents.
(c) Officer's Certificate. Except as
contemplated in the Prospectus or
reflected therein by the filing of any
amendment or supplement thereto or any
Incorporated Document, at the date hereof
and at each Settlement Date with
respect to any Terms Agreement, there shall
not have been, since the date of the
most recent consolidated financial
statements included or incorporated by
reference in the Prospectus, any material
adverse change, or any development
17
<PAGE>
which is reasonably likely to result in a
material adverse change, in the
consolidated financial condition or
consolidated results of operations of the
Company and its subsidiaries, taken as a
whole. On the date hereof (and, if this
certificate is being delivered pursuant to
a Terms Agreement, as of the
Settlement Date with respect to such Terms
Agreement), the Agents shall have
received a certificate signed by an officer
of the Company, substantially in the
form of Appendix I hereto and dated the
date hereof, to the effect (i) that
there has been no such material adverse
change, (ii) that the representations
and warranties of the Company contained in
Section I (a) hereof (other than
Section I (a)(vi)) are true and correct
with the same force and effect as though
expressly made at and as of the date of
such certificate, (iii) that the Company
has complied with all agreements and
satisfied all conditions required by this
Agreement or either of the Indentures on
its part to be performed or satisfied
at or prior to the date of such certificate
and (iv) that no stop order
suspending the effectiveness of the
Registration Statement has been issued and,
to the best of such officer's knowledge, no
proceedings for that purpose have
been initiated or threatened by the
Commission.
(d) Comfort Letter. On the date
hereof, the Agents shall have received a
letter from the Company's independent
registered public accounting firm, dated
as of the date hereof and in form and
substance satisfactory to the Agents,
containing statements and information of a
type ordinarily included in
accountants' "comfort letters" to agents
with respect to the financial
statements and certain financial
information contained or incorporated by
reference in the Registration Statement and
the Prospectus; and, if financial
statements for any assets, business or
entity acquired by the Company are
included or incorporated by reference in
the Registration Statement or the
Prospectus, the Agents shall have received
a similar "comfort letter" from an
independent registered public accounting
firm, dated as of the date hereof and
in form and substance satisfactory to the
Agents, with respect to such financial
statements and any financial information
with respect to such assets, business
or entity, as the case may be, contained or
incorporated by reference in the
Registration Statement and the Prospectus.
Without limitation to the foregoing,
the letter delivered by the Company's
independent registered public accounting
firm shall state that nothing has come to
their attention that caused them to
believe that at a specified date not more
than five days prior to the date of
such letter, there was any change in the
outstanding capital stock of the
Company or any increase in consolidated
long-term debt of the Company or any
decrease in the stockholders' equity of the
Company, in each case as compared
with the amounts shown on the most recent
consolidated balance sheet of the
Company incorporated by reference in the
Registration Statement and Prospectus
or, during the period from the date of such
balance sheet to a specified date
not more than five days prior to the date
of such letter, there were any
decreases, as compared with the
corresponding period in the preceding year, in
consolidated net sales and operating
revenues or net income of the Company,
except in each such case as set forth in or
contemplated by the Registration
Statement and Prospectus or except for such
exceptions enumerated in such letter
as shall have been agreed to by the Agents
and the Company.
(e) Other Documents. On the date
hereof and on each Settlement Date with
respect to any applicable Terms Agreement,
counsel to the Agents shall have been
furnished with such documents and opinions
as such counsel may reasonably
require for the purpose of enabling such
counsel to pass upon the issuance and
sale of the Notes as herein contemplated
and related proceedings, or in order to
evidence the accuracy and completeness of
any of the representations and
warranties, or the fulfillment of any of
the conditions, herein contained.
18
<PAGE>
(f) Effectiveness of Registration
Statement. The Registration Statement
(including any Rule 462(b) Registration
Statement) has become effective under
the 1933 Act, no stop order suspending the
effectiveness of the Registration
Statement shall have been issued and no
proceedings for that purpose shall be
instituted or, to the knowledge of the
Company or the Agents, threatened or
contemplated by the Commission; no stop
order suspendi
