EXHIBIT 1.5
UNION OIL COMPANY OF CALIFORNIA
MEDIUM-TERM NOTES, SERIES C
PAYMENT OF PRINCIPAL, INTEREST AND PREMIUM, IF ANY,
GUARANTEED BY
UNOCAL CORPORATION
FORM OF DISTRIBUTION AGREEMENT
, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Credit Suisse First Boston Corporation
Eleven Madison Avenue, 4th Floor
New York, NY 10010-3629
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
NationsBanc Xxxxxxxxxx Securities LLC
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. INTRODUCTION. Union Oil Company of California, a California
corporation (the "Issuer"), and Unocal Corporation, a Delaware corporation (the
"Guarantor"), each confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") with respect to the issue and sale from
time to time by the Issuer of its Medium-Term Notes, Series C, registered under
the registration statements referred to in Section 2(a) hereof (any such medium-
term notes, other than any to be sold pursuant to any agreement that may be
entered into between the Issuer, the Guarantor and any of the Agents for them to
act as a placement agent (a "placement agency agreement"), are hereinafter
referred to as the "Debt Securities"), guaranteed (any such guarantees being
hereinafter referred to as the
"Guarantees") as to payment of principal, interest and premium, if any, by the
Guarantor (the Debt Securities and the Guarantees related thereto being
hereinafter collectively referred to as the "Securities"). The Securities may
be sold pursuant to Section 3 of this Agreement in an aggregate amount not to
exceed the amount of Registered Securities (as defined in Section 2(a) hereof),
reduced by the aggregate amount of any other Registered Securities sold
otherwise than pursuant to Section 3 of this Agreement. The Securities will be
issued under an indenture, dated as of February 3, 1995 (the "Indenture"), among
the Issuer, the Guarantor and Chemical Trust Company of California (which was
succeeded by merger effective as of November 15, 1997, by Chase Manhattan Bank
and Trust Company, National Association), as trustee (the "Trustee"), which
incorporates the Standard Multiple-Series Indenture Provisions, January 1991, of
the Issuer and the Guarantor dated as of January 2, 1991.
The Securities shall have the prices, maturity ranges, interest rates,
redemption provisions and other terms set forth in the Prospectus referred to in
Section 2(a) hereof, as it may be supplemented from time to time. The
Securities will be issued, and the terms thereof established, from time to time
by the Issuer and the Guarantor in accordance with the Indenture and the
Procedures (as defined in Section 3(d) hereof).
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE GUARANTOR. The
Issuer and the Guarantor, jointly and severally, represent and warrant to, and
agree with, each Agent as follows:
(a) The Issuer and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") two registration statements on Form S-3
(Registration Nos. 33-54861; 00-00000-00 and 333-_____; 333-_____-01), including
a prospectus relating to debt securities of the Issuer and guarantees thereof by
Guarantor, together with equity securities of the Guarantor (such securities,
together with trust preferred securities of Unocal Capital Trust II and related
junior subordinated debentures and guarantees of the Guarantor also registered
under Registration Statement Nos. 333-_____ and 333-_____-01, being referenced
to collectively as the "Registered Securities"), which registration statements
have become effective. Each such registration statement, including the exhibits
thereto (other than the Form T-1), as amended as of the Closing Date (as defined
in Section 3(e) hereof), is hereinafter referred to as a "Registration
Statement." References herein to the "applicable Registration Statement" shall
be deemed to refer to both Registration Statements so long as Registered
Securities remain issuable under Registration Statement Nos. 33-54861;
00-00000-00 and only to Registration Statement Nos. 333-_____; 333-_____-01
thereafter. The prospectus relating to debt securities of the Issuer and
guarantees thereof by the Guarantor, together with equity securities of the
Guarantor, included in each Registration Statement, as amended or supplemented
as of the Closing Date (other than by a supplement relating solely to the
offering of Registered Securities other than the Securities), including all
material incorporated by reference therein, is hereinafter referred to as the
"Prospectus." Any reference in this Agreement to amending or supplementing the
Prospectus shall be deemed to include the filing of materials incorporated by
reference in the Prospectus after the Closing Date and any reference in this
Agreement to any amendment or supplement to the Prospectus shall be deemed to
include any such materials incorporated by reference in the Prospectus after the
Closing Date.
(b) On the effective date of Registration Statement Nos. 33-54861;
00-00000-00 relating to the Registered Securities and on the effective date of
Registration Statement Nos. 333-_____;
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333-_____-01 relating to the Registered Securities, each such Registration
Statement conformed in all material respects to the requirements of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission pursuant to the Act (the "Rules and Regulations") and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, each Registration Statement and the
Prospectus, and at each of the times of acceptance and of delivery referred to
in Section 6(a) hereof and at each of the times of amendment or supplementing
referred to in Section 6(b) hereof (the Closing Date and each such time being
herein sometimes referred to as a "Representation Date"), each Registration
Statement and the Prospectus, as then amended or supplemented, will conform in
all material respects to the requirements of the Act, the Trust Indenture Act
and the Rules and Regulations, and none of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information furnished to
the Issuer or the Guarantor by any Agent specifically for use therein.
3. APPOINTMENT AS AGENT; AGREEMENT OF AGENT; SOLICITATIONS AS AGENT.
(a) Subject to the terms and conditions stated herein, the Issuer and
the Guarantor each hereby appoints each of the Agents as an agent of the Issuer
and the Guarantor for the purpose of soliciting or receiving offers to purchase
the Securities from the Issuer and the Guarantor by others. So long as this
Agreement shall remain in effect with respect to any Agent, neither the Issuer
nor the Guarantor shall, without the consent of each such Agent, solicit or
accept offers to purchase Securities otherwise than through one of the Agents
(except as contemplated by Section 11 hereof); PROVIDED, HOWEVER, that, subject
to all of the terms and conditions of this Agreement and any agreement
contemplated by Section 11 hereof, the foregoing shall not be construed to
prevent the Issuer or the Guarantor from selling at any time any Registered
Securities pursuant to any placement agency agreement or in a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of such Registered Securities; PROVIDED, FURTHER, that the
Issuer and the Guarantor may from time to time accept unsolicited offers to
purchase Securities from the Issuer and the Guarantor or to sell Securities as
an agent of the Issuer and the Guarantor if (i) the Securities are purchased or
sold in accordance with the terms of separate purchase or agency agreements to
be entered into between each such unsolicited offeror and the Issuer and the
Guarantor, each of which agreements will be for a single transaction and contain
business terms substantially similar to those contained in this Agreement
(including the same discount or commission payment to an agent as is contained
in Exhibit A attached hereto, unless in connection with a purchase as principal
pursuant to Section 11 a lower discount or commission is agreed to by such
agent, the Issuer and the Guarantor), and (ii) there is delivered in connection
therewith a pricing supplement to the Prospectus (a "Pricing Supplement")
stating that the Agents are not participating in, and are in no way responsible
for, any aspect of such unsolicited transaction, and (iii) the Issuer gives
notice to the Agents of its acceptance of such an unsolicited offer to purchase
Securities or sell Securities as an agent pursuant to this paragraph.
(b) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each Agent
agrees, as agent of the Issuer and the Guarantor, to
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use reasonable efforts when requested by the Issuer to solicit offers to
purchase the Securities upon the terms and conditions set forth in the
Prospectus, as from time to time amended or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Agent shall suspend its solicitation of offers to purchase
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to each Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised each such Agent
that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. If the Issuer has notified each Agent to suspend
solicitation of offers to purchase Securities for any reason, then such Agent
will use its best efforts to suspend such solicitation as soon as practicable
after receiving notice from the Issuer thereof, but in any event, within one
business day after receiving such notice. Any suspension in solicitation
described above shall continue until such time as the Issuer has advised the
Agents that such solicitation may be resumed. For the purpose of the second
preceding sentence, "business day" shall mean any day which is not a Saturday or
Sunday and which in New York City is not a day on which banking institutions are
generally authorized or obligated by law to close.
The Agents are authorized to solicit offers to purchase Securities in
book-entry fully registered form and only in minimum aggregate denominations of
$1,000 and integral multiples of $1,000 in excess thereof. Unless otherwise
agreed to by the Issuer and an Agent and specified in a supplement to the
Prospectus, Securities (i) shall be purchased at a purchase price equal to 100%
of the principal amount thereof, and (ii) if purchased by an Agent as principal,
pursuant to a Purchase Agreement or otherwise, as contemplated by Section 11
hereof, may be resold at varying prices from time to time or, if set forth in
the applicable Purchase Agreement, at a fixed public offering price. In
connection with any resale of Securities purchased as principal, an Agent may
use a selling or dealer group and may reallow to any broker or dealer any
portion of the discount or commission payable with respect thereto. Each Agent
shall communicate to the Issuer, orally or in writing, each reasonable offer to
purchase Securities received by it as agent. The Issuer shall have the sole
right to accept offers for itself and the Guarantor to purchase the Securities
and may reject any such offer, in whole or in part. Each Agent shall have the
right, in its discretion reasonably exercised, without notice to the Issuer or
the Guarantor, to reject any offer to purchase Securities received by it, in
whole or in part, and any such rejection shall not be deemed a breach of its
agreement contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Issuer, until such Security shall have been delivered to The Depository Trust
Company for the account of the purchaser thereof against payment by such
purchaser.
(c) At the time of delivery of, and payment for, any Securities sold
by the Issuer as a result of a solicitation made by, or offer to purchase
received by, an Agent, the Issuer and the Guarantor agree to pay such Agent a
commission in accordance with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by the Agents, the Issuer
and the Guarantor. The initial
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Procedures, which are set forth in Exhibit B hereto, shall remain in effect
until changed by agreement among the Issuer, the Guarantor and the Agents. Each
Agent, the Issuer and the Guarantor agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and in
the Procedures. The Issuer will furnish to the Trustee and any authenticating
agent a copy of the Procedures which are from time to time in effect.
(e) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of Xxxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 not later than 10:00 A.M., Los Angeles
time, on the date of this Agreement or at such other place and time as may be
mutually agreed to by the Issuer, the Guarantor and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation of
offers to purchase Securities hereunder, such time and date being herein called
the "Closing Date."
4. CERTAIN AGREEMENTS OF THE ISSUER AND THE GUARANTOR. The Issuer agrees
with the Agents that it has furnished or it will furnish to Xxxxxx Xxxx &
Xxxxxxxx LLP, counsel for the Agents, one signed copy of each Registration
Statement, including all exhibits, in the form in which it became effective and
of all amendments thereto and that, in connection with each offering of
Securities:
(a) The Issuer will advise each Agent promptly of any proposal to
amend or supplement any Registration Statement or the Prospectus (other than by
a Pricing Supplement relating to the Securities or an amendment or supplement
relating solely to the offering of Registered Securities other than the
Securities) and will afford the Agents a reasonable opportunity to comment on
any such proposed amendment or supplement, except that with respect to
amendments or supplements to any Registration Statement or the Prospectus by
incorporation by reference of any Proxy Statements, Quarterly Reports on Form
10-Q, Annual Reports on Form 10-K and Current Reports on Form 8-K, the Issuer or
the Guarantor shall to the extent practicable, notify each Agent either (i) to
suspend solicitation of offers to purchase Securities pursuant to Section 3(b)
above, or (ii) of the filing of such a report or proxy statement with the
Commission at least one business day (as defined in Section 3(b) above) prior to
filing such a report or proxy statement with the Commission and deliver a copy
of each such report or proxy statement (together with exhibits thereto) to each
Agent on the same business day that such report or proxy statement is filed with
the Commission; and the Issuer will also advise each Agent of the filing of any
amendment or supplement (other than a Pricing Supplement relating to the
Securities or an amendment or supplement relating solely to the offering of
Registered Securities other than the Securities) and of the institution by the
Commission of any stop order proceedings in respect of any Registration
Statement or of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued. If the Issuer notifies any Agent of the impending filing of any
amendment or supplement to the Registration Statement or the Prospectus by
incorporation by reference pursuant to this Section 4(a), then such Agent so
notified shall use such information, until such inforation has been filed with
the Commission, solely for the purpose of determining whether or not to suspend
solicitations of offers to purchase Securities pursuant to this Agreement. If
the Issuer is not accepting offers to purchase the Securities and does not
anticipate accepting offers to purchase the Securities prior to the filing of
the Issuer's or the Guarantor's next succeeding Quarterly Report on Form 10-Q or
next Annual Report on Form 10-K, as the case may be, then no such advice or
notification shall be required until the Issuer determines to solicit offers to
purchase the Securities.
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(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the Issuer
will promptly notify each Agent to suspend solicitation of offers to purchase
Securities; and if the Issuer shall decide to amend or supplement the applicable
Registration Statement or the Prospectus, it will promptly advise each Agent by
telephone (with confirmation in writing) and will promptly prepare and file with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Notwithstanding the
foregoing, if, at the time of any notification to suspend solicitations, any
Agent shall own any of the Securities with the intention of reselling them, or
the Issuer has accepted an offer to purchase Securities but the related
settlement has not occurred, the Issuer and the Guarantor, subject to the
provisions of subsection (a) of this Section, will promptly prepare and file
with the Commission an amendment or supplement that will correct such statement
or omission or an amendment that will effect such compliance.
(c) The Issuer and the Guarantor, during the period when a prospectus
relating to the Securities is required to be delivered under the Act, will file
promptly all documents required to be filed by it with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"). In addition, during the period described in the immediately
preceding sentence, on the date on which the Guarantor makes any announcement to
the general public concerning earnings or concerning any other event which is
required to be described, or which the Issuer or the Guarantor proposes to
describe, in a document filed pursuant to the Exchange Act, the Issuer or the
Guarantor will furnish a copy of such announcement to each Agent and, subject to
the provisions of subsections (a) and (b) of this Section, will cause the
Prospectus to be amended or supplemented to reflect the information contained in
such announcement. The Issuer or the Guarantor also will furnish each Agent
with copies of all other press releases or announcements to the general public
as soon as practicable after such press releases or announcements are made to
the public. The information required to be furnished to the Agents pursuant to
the prior sentence shall be deemed to have been furnished by the posting thereof
on the Guarantor's Internet website at xxxx://xxx.xxxxxx.xxx. The Issuer or the
Guarantor will promptly notify each Agent of any downgrading in the rating of
the Securities or any other debt securities of the Issuer or the Guarantor, or
any proposal to downgrade the rating of the Securities or any other debt
securities of the Issuer or the Guarantor, by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), as soon as the Issuer and the Guarantor learn of such downgrading or
proposal to downgrade.
(d) As soon as practicable after the date of each acceptance by the
Issuer of an offer to purchase Securities hereunder, but in any event not later
than (A) the 45th day after the end of the fourth fiscal quarter following the
fiscal quarter that includes the date of such acceptance or (B) if such fourth
fiscal quarter is the last quarter of the Issuer's or the Guarantor's fiscal
year, the 90th day after the end of such fourth fiscal quarter, the Guarantor
will make generally available to its security holders a consolidated earnings
statement of the Guarantor and its subsidiaries covering a period of at least
the 12 prior months which will satisfy the provisions of Section 11(a) of the
Act and the Rules and Regulations thereunder (including, at the option of the
Guarantor, Rule 158).
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(e) The Issuer will furnish to each Agent copies of each Registration
Statement, including all exhibits, the Prospectus and all amendments and
supplements to such documents (other than Pricing Supplements relating to
Securities not sold or purchased by any such Agent and amendments or supplements
relating solely to the offering of Registered Securities other than the
Securities), in each case as soon as available and in such quantities as are
reasonably requested.
(f) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Agents designate and will continue such
qualifications in effect so long as required for the distribution.
(g) So long as any Securities are outstanding, the Guarantor will
furnish to the Agents, (i) as soon as practicable after the end of each fiscal
year, a copy of the Guarantor's annual report to stockholders for such year,
(ii) as soon as available, a copy of each report or definitive proxy statement
of the Guarantor filed with the Commission under the Exchange Act or mailed to
stockholders, and (iii) from time to time, such other information concerning the
Issuer and the Guarantor as the Agents may reasonably request.
(h) The Issuer and the Guarantor, jointly and severally, covenant and
agree with the Agents to pay all expenses incident to the performance of their
respective obligations under this Agreement and to reimburse each Agent for any
expenses (including fees and disbursements of counsel) incurred by it in
connection with qualification of the Securities for sale and determination of
their eligibility for investment under the laws of such jurisdictions as such
Agent may designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Securities, for
expenses incurred in distributing the Prospectus and all supplements thereto,
any preliminary prospectuses and any preliminary prospectus supplements to each
Agent and for the reasonable fees and disbursements of counsel to the Agents.
5. CONDITIONS OF OBLIGATIONS. The obligation of each Agent, as agent of
the Issuer and the Guarantor, under this Agreement at any time to use its
reasonable efforts to solicit offers to purchase the Securities is subject to
the accuracy, on the date hereof, on each Representation Date and on the date of
each such solicitation, of the representations and warranties of the Issuer and
the Guarantor herein, to the accuracy, on each such date, of the statements of
the Issuer's and the Guarantor's officers made pursuant to the provisions
hereof, to the performance, on or prior to each such date, by the Issuer and the
Guarantor of their obligations hereunder, and to each of the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of any Registration
Statement or of any part thereof shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Issuer, the
Guarantor or any Agent, shall be contemplated by the Commission.
(b) None of the Registration Statements nor the Prospectus, as
amended or supplemented, as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement of fact
which, in the reasonable opinion of any Agent, is material or omits to state a
fact which, in the reasonable opinion of any Agent, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
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(c) There shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Issuer, the Guarantor or any of their respective subsidiaries,
other than as set forth or contemplated in the Prospectus, as amended or
supplemented, which, in the reasonable judgment of such Agent, materially
impairs the investment quality of the Securities; (ii) any downgrading in the
rating of the Issuer's or the Guarantor's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Issuer's or the Guarantor's debt securities; (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Issuer or the Guarantor on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by Federal or New York authorities; or (v) any outbreak or escalation
of major hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international calamity or
emergency if, in the judgment of such Agent, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with solicitations of offers to purchase, or sales of,
Securities.
(d) At the Closing Date, the Agents shall have received an opinion,
dated the Closing Date, of the General Counsel of the Issuer and the Guarantor
or his designee, subject to the approval by the Agents of such designee, to the
effect that:
(i) Each of the Issuer and Guarantor has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each of the Issuer and the Guarantor is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions in which it respectively owns or leases substantial properties or
in which the conduct of its respective business requires such qualification,
except in those jurisdictions in which the failure to so qualify would not have
a material adverse effect on the business or operations of the Issuer or the
Guarantor;
(ii) All of the issued shares of capital stock of the Issuer
and the Guarantor have been duly and validly authorized and issued and are fully
paid and nonassessable (except such counsel may take exception for a DE MINIMIS
number of shares), and the Guarantor is the registered and beneficial owner of
all of the outstanding shares of capital stock of the Issuer;
(iii) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there is no legal or governmental
proceeding pending to which the Issuer, the Guarantor or any of their respective
subsidiaries is a party or of which any property of the Issuer, the Guarantor or
any of their respective subsidiaries is the subject, which is likely (to the
extent not covered by insurance) to have a material adverse effect on the
consolidated financial position of the Issuer and its subsidiaries or of the
Guarantor and its subsidiaries; and, to the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus, no such proceeding is
threatened or contemplated by governmental authorities or threatened by others;
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(iv) This Agreement has been duly authorized, executed and
delivered by the Issuer and the Guarantor;
(v) The Securities have been duly authorized, and when the
terms of any Securities of any such series have been established in accordance
with the Indenture and such Securities have been executed, authenticated, issued
and delivered against payment therefor in accordance with the Indenture and this
Agreement, such Securities will constitute valid and legally binding obligations
of the Issuer and the Guarantor, enforceable against the Issuer and the
Guarantor in accordance with their terms, subject, as to enforcement, to
(a) bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights, (b) general equity
principles, (c) requirements that a claim with respect to any Securities
denominated in other than United States dollars (or a judgment denominated in
other than United States dollars in respect of such a claim) be converted into
United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (d) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in a foreign
currency, composite currency or currency unit; except that such counsel may
decline to express an opinion on the validity and legally binding nature of the
obligations of the Issuer and Guarantor with respect to any Securities that may
be indexed or linked to any foreign currency, composite currency, currency unit,
commodity price, financial or non-financial index or other factors; the
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus; the forms and the terms of such
Securities endorsed thereon have been established by or pursuant to Board
Resolutions in each case of the Issuer or the Guarantor, as appropriate, in
conformity with the provisions of the Indenture;
(vi) The Indenture has been duly authorized, executed and
delivered by the Issuer and the Guarantor and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and legally
binding instrument of the Issuer and the Guarantor, enforceable against the
Issuer and the Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust Indenture
Act;
(vii) The execution, delivery and performance of the Indenture
and this Agreement, the issuance and sale of the Securities, compliance with the
terms and provisions of the foregoing and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach of
any of the terms or provision of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Issuer or the Guarantor is a party or by which the
Issuer or the Guarantor is bound or to which any of the property or assets of
the Issuer or the Guarantor is subject, nor will such action result in any
violation of the provisions of the Guarantor's Certificate of Incorporation, as
amended, or the Issuer's Restated Articles of Incorporation, as amended, or the
bylaws of the Issuer or the Guarantor or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over the Issuer or the Guarantor or any of their respective
properties, except that such counsel may state that the opinion set forth in the
preceding clause is limited to those statutes, orders, rules or regulations
currently in effect which, in such counsel's experience, are normally applicable
to transactions of the type contemplated by this Agreement and that such counsel
expresses
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no opinion as to the securities or Blue Sky laws of the various jurisdictions in
which the Securities are to be offered; the Issuer and the Guarantor each has
full power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement;
(viii) No consent, approval, authorization, order, registration
or qualification of or filing with any United States court or governmental
agency or body having jurisdiction over the Issuer, the Guarantor, any of their
respective subsidiaries or any of their respective properties is required for
the issue and sale of the Securities by the Issuer and the Guarantor or the
consummation by the Issuer or the Guarantor of the other transactions
contemplated by this Agreement or the Indenture, except such as have been
obtained and made under the Act and the Trust Indenture Act and such consents,
approvals, authorizations registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the issuance and
distribution of the Securities under this Agreement;
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements, the related schedules and financial
exhibits and other financial and statistical information included therein, as to
which such counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act, the Rules and Regulations,
the Exchange Act and the rules and regulations thereunder, as applicable; and
such counsel has no reason to believe that any of such documents, when they
became effective or were so filed, as the case may be, in the case of a
registration statement which became effective under the Act, 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, and,
in the case of other documents which were filed under the Act or the Exchange
Act with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading; and
(x) Each Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of any Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act; each Registration Statement, as of its effective
date, each Registration Statement and the Prospectus, as of the Closing Date,
and any amendment or supplement thereto, as of its date (other than the
financial statements, related schedules and financial exhibits and other
financial and statistical information included therein, as to which such counsel
need express no opinion), complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations;
such counsel has no reason to believe that any such registration statement, as
of its effective date, any Registration Statement or the Prospectus, as of the
Closing Date, or any such amendment or supplement, as of its date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; the descriptions in each Registration Statement and the Prospectus
of statutes, legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information required to be shown;
provided, such counsel need express no opinion with respect to any statement
contained in or omitted from any Registration Statement or the Prospectus in
reliance upon or in conformity with written information furnished to the Issuer
or the Guarantor by any Agent, expressly for use in any Registration Statement
or Prospectus; and
10
(xi) Such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to any Registration
Statement or required to be incorporated by reference into the Prospectus or
required to be described in any Registration Statement or the Prospectus which
are not filed or incorporated by reference or described as required; and
(xii) Confirming the accuracy of the statements set forth in the
Prospectus, as amended or supplemented, under the caption "United States Tax
Considerations" as of such Closing Date.
(e) At the Closing Date, the Agents shall have received a
certificate, dated the Closing Date, of the Chief Financial Officer, the
Treasurer or any Assistant Treasurer and the Secretary or any Assistant
Secretary of the Issuer and the Guarantor, respectively, in which such officers,
to the best of their knowledge after reasonable investigation, shall state that
(i) the representations and warranties of the Issuer and the Guarantor in this
Agreement are true and correct, (ii) the Issuer and the Guarantor each has
complied with all agreements and satisfied all conditions on its respective part
to be performed or satisfied hereunder at or prior to the Closing Date, (iii) no
stop order suspending the effectiveness of any Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission, (iv) subsequent to the date of
the most recent financial statements incorporated by reference in the Prospectus
there has been no material adverse change in the financial position or results
of operations of the Issuer, the Guarantor and their respective subsidiaries,
except as set forth in or contemplated by the Prospectus or as described in such
certificate; and (v) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Act, the Rules and Regulations, the Exchange Act and the rules and regulations
thereunder, as applicable; and such officers have no reason to believe that any
of such documents, when they became effective or were so filed, as the case may
be, in the case of a registration statement which became effective under the
Act, 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, and, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading.
(f) At the Closing Date, the Agents shall have received letters,
dated the Closing Date, of Coopers & Xxxxxxx L.L.P. or any successor, stating in
effect that:
(i) They are independent certified public accountants with
respect to the Issuer and the Guarantor within the meaning of the Act and the
applicable published Rules and Regulations thereunder;
(ii) In their opinion, the consolidated financial statements
and any supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act, the related Rules and Regulations
thereunder, the Exchange Act and the related rules and regulations thereunder,
as applicable;
11
(iii) In their opinion, the unaudited selected financial
information with respect to the consolidated results of operations and financial
position of the Guarantor for the five most recent fiscal years included or
incorporated by reference in the Prospectus or in Item 6 of the Guarantor's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Guarantor's Annual Reports on Form
10-K for such fiscal years;
(iv) If applicable, in their opinion, the unaudited selected
financial information with respect to the consolidated results of operations and
financial position of the Issuer for the five most recent fiscal years included
or incorporated by reference in the Prospectus or in Item 6 of the Issuer's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for the five such fiscal years which were
included or incorporated by reference in the Issuer's Annual Reports on Form 10-
K for such fiscal years;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim consolidated
financial statements of the Issuer and the Guarantor as consolidated with their
respective subsidiaries, inspection of the minute books of the Issuer, the
Guarantor and their respective significant subsidiaries since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Issuer, the Guarantor and their
respective significant subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated earnings
statement, consolidated balance sheet and consolidated cash flows statement
included or incorporated by reference in the Guarantor's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or that any material modification should be made to them
in order for them to be in conformity with generally accepted accounting
principles;
(B) if applicable, the unaudited condensed
consolidated earnings statement, consolidated balance sheet and consolidated
cash flows statement included or incorporated by reference in the Issuer's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or that any material modification
should be made to them in order for them to be in conformity with generally
accepted accounting principles;
(C) any unaudited pro forma condensed consolidated
financial statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the Act and the published Rules and
12
Regulations thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those statements, except
as disclosed and with which they concur;
(D) as of a specified date not more than five days
prior to the Closing Date, there have been any changes in the outstanding
capital stock (other than, in the case of the Guarantor, issuances of capital
stock upon exercise of options and stock appreciation rights, upon earn-outs of
performance shares, and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus, and upon grants or cancellations of
restricted stock and issuances of capital stock pursuant to the Profit Sharing
Plan, Dividend Reinvestment and Stock Purchase Plan) or any increase in the
consolidated long-term debt of the Issuer and the Guarantor and their respective
subsidiaries (other than normal fluctuations in the outstanding amount of
commercial paper classified as long-term in accordance with generally accepted
accounting principles), or any increase in short-term notes payable in excess of
100%, or any decreases in consolidated net current assets or net assets or other
items specified by the Agents, or any increases in any items specified by the
Agents, in each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(E) for the period from the date of the latest
financial statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (D) there were any decreases in
consolidated total revenues, net earnings or, in the case of the Guarantor, net
earnings or net earnings per share or, if for a fiscal quarter, the ratio of
earnings to fixed charges or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as compared with
the comparable period of the preceding year and with any other period of
corresponding length specified by the Agents, except in each case for increases
or decreases which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vi) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (v) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived from the general
accounting records of the Issuer, the Guarantor and their respective
subsidiaries, which appear in the Prospectus (including specified documents
incorporated by reference), or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by the Agents, and have compared certain of
such amounts, percentages and financial information with the accounting records
of, or if approved by the Agents, schedules prepared by, the Issuer, the
Guarantor and their respective subsidiaries and have found them to be in
agreement.
All financial statements, schedules, financial exhibits and other financial
information included in material incorporated by reference into the Prospectus
shall be deemed included in the Prospectus for purposes of this subsection.
13
(g) The Agents shall have received from Xxxxxx Xxxx & Xxxxxxxx LLP,
counsel for the Agents, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Issuer and Guarantor, the validity of the
Securities, the applicable Registration Statement, the Prospectus and other
related matters as they may require, and the Issuer and the Guarantor shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
The Issuer and the Guarantor will furnish the Agents with such conformed copies
of such opinions, certificates, letters and documents as they reasonably
request.
6. ADDITIONAL COVENANTS OF THE ISSUER AND THE GUARANTOR. The Issuer and
the Guarantor agree, jointly and severally, that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its and the Guarantor's
respective representations and warranties contained in this Agreement are true
and correct at the time of such acceptance and a covenant that such
representations and warranties will be true and correct at the settlement date
for the sale of the Securities relating to such acceptance, as though made at
and as of each such time, it being understood that such representations and
warranties shall relate to the applicable Registration Statement and the
Prospectus, as amended or supplemented, at each such time. Each such acceptance
by the Issuer of an offer for the purchase of Securities shall be deemed to
constitute an additional representation, warranty and agreement by the Issuer
and the Guarantor that, as of the settlement date for the sale of such
Securities, after giving effect to the issuance of such Securities, any other
Securities to be issued on or prior to such settlement date and any other
Registered Securities to be issued and sold by the Issuer and/or the Guarantor
on or prior to such settlement date, the aggregate amount of Registered
Securities (including any Securities) which have been issued and sold by the
Issuer and the Guarantor will not exceed the amount of Registered Securities
registered pursuant to the applicable Registration Statement.
(b) Each time that each Registration Statement or the Prospectus
shall be amended or supplemented, the Issuer and the Guarantor shall,
concurrently with such amendment or supplement, furnish the Agents with a
certificate, dated the date of delivery thereof, of the Chief Financial Officer,
the Treasurer or any Assistant Treasurer and the Secretary or any Assistant
Secretary of the Issuer and the Guarantor, respectively, in form satisfactory to
the Agents, to the effect that the statements contained in the certificate
covering the matters set forth in Section 5(e) hereof which was last furnished
to the Agents are true and correct at the time of such amendment or supplement,
as though made at and as of such time (except that such statements shall be
deemed to relate to the applicable Registration Statement and the Prospectus, as
amended or supplemented at such time, and except that the statements contained
in the certificate covering the matters set forth in clause (ii) of Section 5(e)
shall be deemed to relate to the time of delivery of such certificate) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(e), modified as necessary to relate to the applicable
Registration Statement and the Prospectus, as amended or supplemented at the
time of delivery of such certificate, and, in the case of the matters set forth
in clause (ii) of Section 5(e), to the time of delivery of such certificate;
PROVIDED, HOWEVER, that such requirement shall only apply to amendments or
supplements by Quarterly Reports on Form 10-Q or Annual Reports on Form 10-K,
unless specifically requested in writing by any of the Agents. If the Issuer is
not accepting offers to purchase the Securities at the time
14
of a Representation Date and does not anticipate accepting offers to purchase
the Securities prior to the filing of either the Issuer's or the Guarantor's
next succeeding Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as
the case may be, then no such certificate covering such periods shall be
required until the Issuer determines to solicit offers to purchase the
Securities. Once the Issuer has made such determination, such a certificate
must be delivered prior to the settlement of the first purchase of any
Securities after such withdrawal from the market.
(c) The Issuer shall, as soon as practicable after each
Representation Date referred to in Section 6(b), furnish the Agents with a
written opinion or opinions, dated as of the date of such Representation Date,
of counsel for the Issuer and the Guarantor, in form satisfactory to the Agents,
to the effect set forth in Section 5(d) hereof, but modified, as necessary, to
relate to the applicable Registration Statement and the Prospectus, as amended
or supplemented at such Representation Date; PROVIDED, HOWEVER, that in lieu of
such opinion or opinions, counsel may furnish the Agents with a letter or
letters to the effect that the Agents may rely on a prior opinion delivered
under Section 5(d) or this Section 6(c) to the same extent as if it were dated
as of the date of such letter (except that statements in such prior opinion
shall be deemed to relate to the applicable Registration Statement and the
Prospectus, as amended or supplemented at such Representation Date); PROVIDED
further, that such opinion or opinions shall only be required for amendments or
supplements by Quarterly Reports on Form 10-Q or Annual Reports on Form 10-K,
unless specifically requested in writing by any of the Agents. If the Issuer is
not accepting offers to purchase the Securities at the time of a Representation
Date and does not anticipate accepting offers to purchase the Securities prior
to the filing of either the Issuer's or the Guarantor's next succeeding
Quarterly Report on Form 10-Q or the Annual Report on Form 10-K, as the case may
be, then no opinions or letters covering such periods shall be required until
the Issuer determines to solicit offers to purchase the Securities. Once the
Issuer has made such determination, an opinion or letter must be delivered prior
to the settlement of the first purchase of any Securities after such withdrawal
from the market.
(d) The Issuer shall cause Coopers & Xxxxxxx L.L.P. or its successor,
as soon as practicable, after each Representation Date referred to in Section
6(b) on which each Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, to furnish the Agents
with a letter or letters, addressed to the Issuer and the Agents and to the
Guarantor and the Agents and, in each case, dated as of such Representation
Date, in form and substance satisfactory to the Agents, to the effect set forth
in Section 5(f) hereof but modified to relate to the applicable Registration
Statement and the Prospectus, as amended or supplemented, at such Representation
Date, with such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Issuer and the Guarantor; PROVIDED, HOWEVER, that, except as otherwise requested
by the Agents, such letters shall be required only for amendments or supplements
by Quarterly Reports on Form 10-Q or Annual Reports on Form 10-K, unless
specifically requested in writing by any of the Agents; PROVIDED, FURTHER, that
if the applicable Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, Coopers & Xxxxxxx L.L.P. or its successor may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless there is contained therein any other accounting, financial or
statistical information that, in the reasonable judgment of the Agents, should
be covered by such letter, in which event such letter shall also cover such
other information and procedures as shall be agreed upon by the Agents. If the
Issuer is not
15
accepting offers to purchase the Securities at the time of a Representation Date
and does not anticipate accepting offers to purchase the Securities prior to the
filing of either the Issuer's or the Guarantor's next succeeding Quarterly
Report on Form 10-Q or the next Annual Report on Form 10-K, as the case may be,
then no comfort letters covering such periods shall be required until the Issuer
determines to solicit offers to purchase the Securities. Once the Issuer has
made such determination, a comfort letter or letters shall be required prior to
the settlement of the first purchase of any Securities after such withdrawal
from the market and shall cover the periods from the later of the date of the
balance sheet covered by the last available comfort letter or the most recently
reported audited financial information in the Annual Report on Form 10-K up to
the date not more than five days prior to the date of such letter.
(e) On each settlement date for the sale of Securities, the Issuer
and the Guarantor shall, if in the reasonable judgment of the counsel for the
Agents a written opinion of counsel for the Issuer and the Guarantor is
necessary or advisable in connection with such settlement, furnish the Agent
selling or purchasing such Securities with a written opinion of counsel, dated
as of the date of delivery thereof, in form satisfactory to such Agent, to the
effect set forth in clauses (i), (v) and (vi) of Section 5(d) hereof, but
modified, as necessary, to relate to the Prospectus, as amended or supplemented
at such settlement date, and except that such opinion shall state that the
Securities being sold by the Issuer and the Guarantor on such settlement date,
when delivered against payment therefor as provided in the Indenture and this
Agreement (and assuming the due authentication, issuance and delivery of the
Indenture by the Trustee), will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the
Issuer and the Guarantor, enforceable against the Issuer and the Guarantor in
accordance with their terms, subject only to the exceptions as to enforcement
set forth in clause (v) of Section 5(d) hereof, and will conform to the
description thereof contained in the Prospectus, as amended or supplemented at
such settlement date.
(f) The Issuer and Guarantor, jointly and severally, agree that any
obligation of a person who has agreed to purchase Securities to make payment for
and take delivery of such Securities shall be subject to (i) the accuracy, on
the related settlement date fixed pursuant to the Procedures, of the Issuer's
and the Guarantor's representation and warranty deemed to be made to the Agents
pursuant to the last sentence of subsection (a) of this Section 6, and (ii) the
satisfaction, on such settlement date, of each of the following conditions:
(i) No stop order suspending the effectiveness of any
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Issuer, the Guarantor or any Agent, shall be contemplated by the Commission;
(ii) None of the Registration Statements nor the Prospectus, as
amended or supplemented as of any Representation Date or such settlement date,
as the case may be, shall contain an untrue statement of material fact or shall
omit to state a material fact which is required to be stated therein or is
necessary to make the statements therein not misleading; and
(iii) There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly the
business or properties of the Issuer, the Guarantor or any of their respective
subsidiaries which materially impairs the investment quality of the
16
Securities; (ii) any downgrading in the rating of the Issuer's or the
Guarantor's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) and no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Issuer's
or the Guarantor's debt securities; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Issuer or the Guarantor on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if the effect
of any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with the sale and delivery of the
Securities on the terms and in the manner contemplated in the Prospectus, as
amended and supplemented.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Issuer and the Guarantor, jointly and severally, will
indemnify and hold harmless each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Agent for any legal or other expenses reasonably incurred by
such Agent in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Issuer and the Guarantor will not be liable to such Agent in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Issuer and the Guarantor by
such Agent specifically for use therein.
(b) Each Agent will indemnify and hold harmless the Issuer and the
Guarantor against any losses, claims, damages or liabilities to which the Issuer
or the Guarantor may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in either Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Issuer or the
Guarantor by such Agent specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Issuer or the Guarantor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred PROVIDED, HOWEVER, that such
Agent will
17
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of the offer or sale of Securities occurring after such
Agent has notified the Issuer orally (confirmed in writing) that such
information should no longer be used therein and such Agent does not thereafter
deliver a Prospectus containing such information.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party and who shall not
be counsel to any other indemnified party who may have interests conflicting
with those of such indemnified party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer and the Guarantor on the one hand and any Agent on the other from the
offering pursuant to this Agreement of the Securities which are the subject of
the action 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 Issuer and the Guarantor on the one hand and any Agent on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuer and the Guarantor
on the one hand and any Agent on the other shall be deemed to be in the same
proportions as the total net proceeds from the offering pursuant to this
Agreement of the Securities which are the subject of the action (before
deducting expenses) received by the Issuer and the Guarantor bear to the total
commissions received by such Agent from the offering of such Securities pursuant
to this Agreement. The relative fault 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 Issuer, the Guarantor or such Agent and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no Agent
shall be required to contribute any
18
amount in excess of the amount by which the total price at which the Securities
which are the subject of the action and which were distributed to the public
through it pursuant to this Agreement or upon resale of Securities purchased by
it from the Issuer or the Guarantor exceeds the amount of any damages which such
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each Agent in this subsection
(d) to contribute are several, in the same proportion which the amount of the
Securities which are the subject of the action and which were distributed to the
public through such Agent pursuant to this Agreement bears to the total amount
of such Securities distributed to the public through all of the Agents pursuant
to this Agreement, and not joint.
(e) The obligations of the Issuer and the Guarantor under this
Section 7 shall be in addition to any liability which the Issuer or the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls each Agent within the meaning
of the Act; and the obligations of each Agent under this Section 7 shall be in
addition to any liability which each Agent may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Issuer and the
Guarantor, to each officer of the Issuer and the Guarantor who has signed any
Registration Statement and to each person, if any, who controls the Issuer or
the Guarantor within the meaning of the Act.
8. STATUS OF EACH AGENT. In soliciting offers to purchase the Securities
from the Issuer pursuant to this Agreement and in assuming its other obligations
hereunder (other than offers to purchase pursuant to Section 11), each Agent is
acting individually and not jointly and is acting solely as agent for the Issuer
and the Guarantor and not as principal. Each Agent will make reasonable efforts
to assist the Issuer and the Guarantor in obtaining performance by each
purchaser whose offer to purchase Securities from the Issuer has been solicited
by such Agent and accepted by the Issuer, but such Agent shall have no liability
to the Issuer or the Guarantor in the event any such purchase is not
consummated. If the Issuer or the Guarantor shall default on any of their
respective obligations to deliver Securities to a purchaser whose offer it has
accepted, the Issuer and the Guarantor (i) shall hold the Agents harmless
against any loss, claim or damage arising from or as a result of such default by
the Issuer or the Guarantor, and (ii) in particular, shall pay to the Agents any
commission to which they would be entitled in connection with such sale.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer and the Guarantor or their respective officers and of the Agents set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Agent, the Issuer, the Guarantor or any of their
respective representatives, officers or directors or any controlling person and
will survive delivery of any payment for the Securities. If this Agreement is
terminated pursuant to Section 10 or for any other reason, the Issuer and the
Guarantor shall remain jointly and severally responsible for the expenses to be
paid or reimbursed by them pursuant to Section 4(h) and the obligations of the
Issuer and the Guarantor under Sections 4(d) and 4(g) and the respective
obligations of the Issuer, the Guarantor and the Agents pursuant to Section 7
shall remain in effect. In addition, if any such termination shall occur either
(i) at a time when any Agent
19
shall own any of the Securities with the intention of reselling them or (ii)
after the Issuer and the Guarantor have accepted an offer to purchase Securities
and prior to the related settlement, the obligations of the Issuer and the
Guarantor under the last sentence of Section 4(b), under Sections 4(a), 4(c),
4(e), 4(f), 6(a), 6(e) and 6(f) and, in addition, in the case of a termination
occurring as described in (ii) above, under Section 3(c) and under the last
sentence of Section 8, shall also remain in effect.
10. TERMINATION. This Agreement may be terminated for any reason at any
time by the Issuer and the Guarantor as to any Agent or by any Agent, insofar as
this Agreement relates to such Agent, upon the giving of one day's written
notice of such termination to the other parties hereto. Any settlement with
respect to Securities placed by an Agent occurring after termination of this
Agreement shall be made in accordance with the Procedures and each Agent agrees,
if requested by the Issuer and the Guarantor, to take the steps therein provided
to be taken by such Agent in connection with such settlement.
11. PURCHASES AS PRINCIPAL. From time to time any Agent may agree with
the Issuer and the Guarantor to purchase Securities from the Issuer as
principal, in which case such purchase shall be made in accordance with the
terms of a separate agreement to be entered into among such Agent, the Issuer
and the Guarantor in the form attached hereto as Exhibit C, or pursuant to such
other agreement including oral agreements as the Agent, the Issuer and the
Guarantor shall agree (a "Purchase Agreement"). A Purchase Agreement, to the
extent set forth therein, may incorporate by reference specified provisions of
this Agreement.
12. SALES OF SECURITIES DENOMINATED IN A CURRENCY OTHER THAN U.S. DOLLARS.
If at any time the Issuer and any of the Agents shall determine to issue and
sell Securities denominated in a currency other than U.S. dollars, which other
currency may include a composite currency, the Issuer, the Guarantor and any
such Agent shall execute and deliver to one another a Foreign Currency Amendment
in the form attached hereto as EXHIBIT "D". The Foreign Currency Amendment
shall establish, as appropriate, additions to and modifications of the terms of
this Agreement, which additions and modifications shall apply to the sales,
whether offered on an agency or principal basis, of Securities denominated in
the currency covered thereby.
13. NOTICES. Except as otherwise provided herein, 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
including facsimile and, if a specific email or similar address has been
provided by the recipient, electronic delivery over the Internet. Notices to
Xxxxxx Xxxxxxx & Co. Incorporated shall be directed to them at 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000, Attention: Manager--Continuously Offered Products Group,
facsimile: 000-000-0000; notices to Credit Suisse First Boston Corporation shall
be directed to them at Eleven Madison Avenue, 5th Floor, New York NY 10010-3629,
Attention: Short and Medium Finance, facsimile: 000-000-0000; notices to X. X.
Xxxxxx Securities Inc. shall be directed to them at 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000-0000, Attention: Transaction Execution Group, facsimile: 212-
648-5151; notices to NationsBanc Xxxxxxxxxx Securities LLC shall be directed to
them at NationsBank Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000, Attention: Continuously Offered Products Group facsimile: 000-000-0000;
notices to Salomon Brothers Inc shall be directed to them at Seven Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: MTN Department facsimile: 000-000-0000;
and notices to the Issuer and the
20
Guarantor shall be directed to them at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer facsimile: 000-000-0000; or in
the case of any party hereto, to such other address or person as such party
shall specify to each other party by a notice given in accordance with the
provisions of this Section 13. Any such notice shall take effect at the time of
receipt.
14. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
15. GOVERNING LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. This Agreement
may be executed in counterparts and the executed counterparts shall together
constitute a single instrument.
21
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
UNION OIL COMPANY OF CALIFORNIA
By:
-----------------------------------
Name:
Title:
UNOCAL CORPORATION
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
-----------------------------------
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:
-----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
-----------------------------------
Name:
Title:
22
EXHIBIT A
The Issuer and the Guarantor agree to pay jointly an Agent a commission
equal to the following percentage of the principal amount of Securities sold to
purchasers solicited by such Agent:
Commission Rate
(as a percentage of
Term(a) principal amount)(b)
---- ----------------
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150
18 months to less than 24 months 0.200
24 months to less than 30 months 0.250
30 months to less than 3 years 0.300
3 years to less than 4 years 0.350
4 years to less than 5 years 0.450
5 years to less than 7 years 0.500
7 years to less than 10 years 0.550
10 years to less than 20 years 0.600
20 years to less than 30 years 0.750
30 years to less than 40 years 0.875
40 years or more To be negotiated at the time of sale
--------------------
(a) With respect to any Security that is subject to redemption, repayment
or purchase by the Issuer at the option of the holder thereof, the Term of such
Security shall be deemed to end on the earliest redemption, repayment or
purchase date specified in such Security.
(b) With respect to any Security that is a "Original Issue Discount Note",
as defined in the Prospectus Supplement, the commission payable with respect to
the sale of such Security shall be based on the purchase price of such Security.
A-1
EXHIBIT B
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, Series C, due nine months or more from their date of
issue (the "Notes") are to be offered on a continuing basis by Union Oil Company
of California (the "Issuer") and guaranteed as to payment of principal,
interest, and premium, if any, by Unocal Corporation, a Delaware corporation
(the "Guarantor"). Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse First
Boston Corporation, X. X. Xxxxxx & Co., NationsBanc Xxxxxxxxxx Securities LLC
and Salomon Brothers Inc, as agents (individually, an "Agent" and collectively,
the "Agents"), have each agreed to use reasonable efforts to solicit offers to
purchase the Notes. None of the Agents will be obligated to purchase Notes for
its own account. The Notes are being sold pursuant to a Distribution Agreement,
dated _______ __, 1998 (the "Distribution Agreement"), among the Issuer, the
Guarantor and the Agents, and will be issued pursuant to an Indenture, dated as
of February 3, 1995 (the "Indenture"), among the Issuer, the Guarantor and
Chemical Trust Company of California (which was succeeded by merger effective as
of November 15, 1997, by Chase Manhattan Bank and Trust Company, National
Association), as trustee (the "Trustee"), which incorporates the Standard
Multiple-Series Indenture Provisions, January 1991, of the Issuer and the
Guarantor dated as of January 2, 1991. The Notes will rank equally with all
other unsecured and unsubordinated indebtedness of the Issuer and the Guarantor
and will have been registered with the Securities and Exchange Commission (the
"Commission").
The Notes will be represented by book-entry notes delivered to The
Depository Trust Company ("DTC") or its nominee and recorded in the book- entry
system maintained by DTC ("Book-Entry Notes"). Beneficial owners of Book-Entry
Notes will not be entitled to receive a certificate representing such Notes.
Administrative and record-keeping responsibilities will be handled for the
Issuer and the Guarantor by its Treasury Department. The Issuer and the
Guarantor will advise the Agents in writing of those persons handling
administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery.
Administrative procedures and certain terms of the offering are explained below.
To the extent that the procedures set forth below conflict with the provisions
of the Notes or the Indenture, the terms of the Notes or the Indenture shall
control. Unless otherwise defined herein, terms defined in the Indenture (or
any applicable Board Resolution referred to therein related to the Notes) shall
be used herein as therein defined.
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between Chase Manhattan Bank and Trust
Company, National Association, as agent for the Trustee, and DTC dated as of
December 2, 1988, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SFDS").
B-1
ISSUANCE
All Book-Entry Notes having the same Issue Date, interest rate and Stated
Maturity will be represented initially by a single depository note (the "Global
Note") in fully registered form without coupons. Each Global Note will be dated
and issued as of the date of its authentication by the Trustee. Each Global
Note will bear an "Original Issue Date," which will be (i) with respect to an
original Global Note (or any portion thereof), its Issue Date, and (ii)
following a consolidation of Global Notes, the most recent Interest Payment Date
to which interest has been paid or duly provided for on the predecessor Global
Notes, regardless of the date of authentication of such subsequently issued
Global Note. No Global Note will represent any Certificated Note.
IDENTIFICATION NUMBERS
The Issuer has arranged with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of a series of
CUSIP numbers (including tranche numbers), such series consisting of
approximately 835 remaining CUSIP numbers and relating to Global Notes
representing Book- Entry Notes. The Issuer has obtained from the CUSIP Service
Bureau a written list of such reserved CUSIP numbers and has delivered it to the
Trustee and DTC. The Trustee will assign CUSIP numbers serially to Global Notes
as described below under Settlement Procedure "C" in "Details for Settlement"
and "Settlement Procedures Timetable." DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Trustee has assigned to Global Notes.
The Trustee will notify the Issuer at any time when fewer than 100 of the
reserved CUSIP numbers remain unassigned to Global Notes; and the Issuer will
reserve an additional 900 CUSIP numbers for assignment to Global Notes
representing Book- Entry Notes. Upon obtaining such additional CUSIP numbers,
the Issuer shall deliver a list of such additional CUSIP numbers to the Trustee
and DTC.
REGISTRATION
Each Global Note will be registered in the name of Cede & Co., as nominee
for DTC, on the Security Register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more indirect participants in
DTC designated by such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as agent or agents for
such owner in connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note in the account of such
Participants. The ownership interest of such beneficial owner in such Note will
be recorded through the records of such Participants or through the separate
records of such Participants and one or more indirect participants in DTC.
TRANSFERS
Transfers of a Book-Entry Note will be accomplished by book entries made by
DTC and, in turn, by Participants (and, in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial transferors and transferees
of such Note.
B-2
EXCHANGES
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of which shall be attached to the Global
Note resulting from such consolidation) specifying (i) the CUSIP numbers of two
or more outstanding Global Notes that represent Book-Entry Notes having the same
interest rate and Stated Maturity, and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty days after such written notice
is delivered and at least thirty days before the next Interest Payment Date for
such Notes, on which such Global Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP number to be assigned to such
replacement Global Note. Upon receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the specified exchange date, the Trustee
will exchange such Global Notes for a single Global Note bearing the new CUSIP
number and a new Original Issue Date and the CUSIP numbers of the exchanged
Global Notes will, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
DENOMINATION
The denominations of the Book-Entry Notes will be $1,000 or any larger
denomination which is an integral multiple of $1,000; PROVIDED, HOWEVER that if
the Book Entry Notes are denominated in a currency other than U.S. Dollars, such
Notes shall only be issued in denominations of the equivalent of $1,000 as
provided in the Note. Global Notes will be denominated in principal amounts not
in excess of $200,000,000.
INTEREST
Each Book-Entry Note will bear interest from the most recent date to which
interest has been paid or made available for payment on the Global Note
representing such Book-Entry Note or, if no interest has been paid or made
available for payment, from the Issue Date of the Global Note representing such
Note, until the principal thereof is paid or made available for payment;
PROVIDED, HOWEVER, that a Floating Rate Book-Entry Note which has a rate of
interest that is reset daily or weekly will bear interest from and including its
Issue Date or the day following the most recent Regular Record Date to which
interest on such Note has been paid or provided for. Interest payable at the
maturity of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described below under
Settlement Procedure "C" in "Details for Settlement" and "Settlement Procedures
Timetable" to include the amount of any interest payable and certain other
information regarding the related Global Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
PAYMENTS OF PRINCIPAL AND INTEREST
(a) PAYMENTS OF INTEREST ONLY. Promptly after each Regular Record Date,
the Trustee will deliver to the Issuer and DTC a written notice specifying by
CUSIP number the amount of interest to be paid on each Global Note on the
following Interest Payment Date (other than an Interest Payment Date
B-3
coinciding with Maturity) and the total of such amounts. The Issuer will
confirm with the Trustee the amount payable on each Global Note on such Interest
Payment Date. DTC will confirm the amount payable on each Global Note on such
Interest Payment Date by reference to the daily bond reports published by
Standard & Poor's Corporation. The Issuer will pay to the Trustee the total
amount of interest due on such Interest Payment Date (other than at Maturity),
the Trustee will pay such amount to DTC at the times and in the manner set forth
at (c) below under "Manner of Payment". If any Interest Payment Date for a
Book-Entry Note is not a Business Day, the payment due on such day shall be made
on the next succeeding Business Day and no interest shall accrue on such payment
for the period from and after such Interest Payment Date.
(b) PAYMENTS AT MATURITY. Promptly after each Record Date for an issue of
Notes, the Trustee will deliver to the Issuer and DTC a written list of
principal and interest to be paid on each Global Note maturing in the following
month. The Issuer, the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Note on or
about the fifth Business Day preceding the Maturity of such Global Note. The
Issuer will pay to the Trustee, as the paying agent, the principal amount of
such Global Note, together with interest due at such Maturity. Upon surrender
of a Global Note, the Trustee will pay such amounts to DTC as the times and in
the manner set forth at (c) below under "Manner of Payment". If any Maturity of
a Global Note representing Book-Entry Notes is not a Business Day, the payment
due on such day shall be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal and interest due at
the Maturity of such Global Note, the Trustee will cancel such Global Note in
accordance with the terms of the Indenture.
(c) MANNER OF PAYMENT. The total amount of any principal and interest due
on Global Notes on any Interest Payment Date or at Maturity shall be paid by the
Issuer to the Trustee in funds available as practicable thereafter on such date.
The Issuer will make such payment on such Global Notes by wire transfer to the
Trustee. The Issuer will confirm instructions regarding payment to the Trustee.
Prior to 10:00 a.m., New York time, on each maturity date or as soon as possible
thereafter, following receipt of such funds from the Issuer, the Trustee will
pay by separate wire transfer (using Fedwire message entry instructions in a
form previously specified by DTC) to an account at the Federal Reserve Bank of
New York previously specified by DTC, in funds available for immediate use by
DTC, each payment of principal (together with interest thereon) due on Global
Notes on any maturity date. On each Interest Payment Date, an interest payment
shall be made to DTC in same day funds in accordance with existing arrangements
between the Trustee and DTC. Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in effect, such amounts in
funds available for immediate use to the representative Participants in whose
names the Book-Entry Notes represented by such Global Notes are recorded in the
book-entry system maintained by DTC. NEITHER THE ISSUER NOR THE TRUSTEE SHALL
HAVE ANY DIRECT RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH
PARTICIPANTS OF THE PRINCIPAL OF AND INTEREST AND PREMIUM, IF ANY, ON THE
BOOK-ENTRY NOTES.
(d) WITHHOLDING TAXES. The amount of any taxes required under applicable
law to be withheld from any interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect participant in DTC or other
person responsible for forwarding payments and materials directly to the
beneficial owner of such Note.
B-4
SETTLEMENT
The receipt by the Issuer of immediately available funds in payment for a
Book-Entry Note and the authentication and issuance of the Global Note or Global
Notes representing such Note shall constitute "settlement" with respect to such
Note. All orders accepted by the Issuer will be settled from one to five
Business Days from the date of the sale pursuant to the timetable for settlement
set forth below unless the Issuer and the purchaser agree to settlement on a
later date.
DETAILS FOR SETTLEMENT
Settlement Procedures with regard to each Book-Entry Note sold by the Issuer
through an Agent shall be as follows:
A. For each offer accepted by the Issuer, the Presenting Agent shall
communicate to the Issuer's Treasury Department by telephone, facsimile
transmission or other acceptable means the following Purchase Information:
1. Principal amount (in U.S. dollars, foreign currency or currency
units), of each Book-Entry Note in authorized denominations to be delivered to
DTC.
2. The issue price (in U.S. dollars, foreign currency or currency
units), interest rate, with respect to the Fixed Rate Book-Entry Notes and with
respect to Floating Rate Book-Entry Notes, the Initial Interest Rate, the
interest rate basis, the Spread or Spread Multiplier, the maximum or minimum
interest rates, if any, the Index Maturity, the Interest Reset Date, Calculation
Date, Interest Determination Date, and the Interest Payment date (as such terms
are defined in the Prospectus Supplement) of each Book-Entry Note.
3. Stated Maturity of each Book-Entry Note.
4. If an Original Issue Discount Note, the yield to Maturity and the
initial accrual period of original issue discount.
5. Issue Date of each Book-Entry Note.
6. Earliest Redemption Date of each Book-Entry Note, if any.
7. Settlement Date for each Book-Entry Note.
8. Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Issuer upon settlement).
9. If an Original Issue Discount Note the yield to Maturity and the
initial accrual period of original issue discount.
B. The Issuer will advise the Trustee by facsimile transmission of the
settlement information set forth in Settlement Procedure "A" above and the name
of the Presenting Agent.
B-5
C. The Trustee will assign a CUSIP number to the Global Note representing
such Book-Entry Note and will telephone the Issuer and advise the Issuer of such
CUSIP number. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC (which shall route such information to Standard & Poor's Corporation) and
the Presenting Agent.
1. The applicable information set forth in Settlement Procedure "A".
2. Initial Interest Payment Date, if any, for such Note, number of
days by which such date succeeds the Regular Record Date and the amount of
interest payable on such Interest Payment Date per $1,000 principal amount of
Book-Entry Notes.
3. CUSIP number of the Global Note representing such Note.
4. Whether such Global Note will represent any other Book-Entry Note
(to the extent known at such time).
5. Interest payment periods.
6. Numbers of the participant accounts maintained by DTC on behalf
of the Trustee and the Agent.
D. The Issuer will deliver (or will have delivered) to the Trustee a
Global Note representing such Note.
E. The Trustee will complete and authenticate the Global Note
representing such Note.
F. DTC will credit such Note to the Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to the Presenting Agent's participant
account and (ii) debit the Presenting Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the price of such Note less
the Presenting Agent's commission. The entry of such a deliver order shall
constitute a representation and warranty by the Trustee to DTC that (i) the
Global Note representing such Note has been executed, delivered and
authenticated and (ii) the Trustee is holding such Global Note pursuant to the
Medium-Term Certificate Agreement between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit such Note to the participant
accounts of the Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the settlement account of
the Presenting Agent for an amount equal to the price of such Note.
I. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
B-6
J. The Trustee, upon confirming receipt of such funds, will wire transfer
the amount transferred to the Trustee in accordance with Settlement Procedure
"G" above, in funds available for immediate use, for the account of "Union Oil
Company of California, Depository Account No. 24771, Credit Medium-Term Note
Program, Series C," at Northern Trust Company, ABA# 000000000, 00 Xxxxx Xx Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
K. The Presenting Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
SETTLEMENT PROCEDURES TIMETABLE
For orders of Book-Entry Notes solicited by the Presenting Agent, and
accepted by the Issuer for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "K" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the sale date
B 12:00 Noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before settlement
date
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after the sale date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but not later than 11:00 a.m., 12:00 Noon and 2:00 p.m., as the case may be, on
the first Business Day after the sale date.
If a sale is to be settled more than two Business Days after the sale date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but no later than 11:00 a.m., 12 Noon and 2:00 p.m., as the case may be, on the
second Business Day after the sale date. Settlement Procedure "I" is subject to
extension in accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in effect on the
settlement date.
B-7
If settlement of a Book-Entry Note is rescheduled or canceled, the Issuer
shall notify the Trustee, and upon receipt of such notice, the Trustee will
deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled settlement date.
FAILURE TO SETTLE
If the Trustee has not entered an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "G", then upon written request
(which may be evidenced by facsimile transmission) of the Issuer, the Trustee
shall deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable, but no later than 2:00 p.m. on any Business Day, a withdrawal
message instructing DTC to debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that the Trustee's participant
account contains a principal amount of the Global Note representing such Note
that is at least equal to the principal amount to be debited. If withdrawal
messages are processed with respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will xxxx such Global Note "canceled", make appropriate
entries in the Trustee' records and send such canceled Global Note to the Issuer
in accordance with the Indenture. The CUSIP member assigned to such Global Note
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages are processed with respect to
one or more, but not all, of the Book-Entry Notes represented by a Global Note,
the Trustee will exchange such Global Note for two Global Notes, one of which
shall represent such Note or Notes and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting Agent may enter an
SDFS deliver order through DTC's Participant Terminal System debiting such Note
to the Presenting Agent's participant account and crediting such Note free to
the participant account of the Trustee and shall notify the Trustee and the
Issuer thereof. Thereafter, the Trustee, (i) will immediately transfer by
Fedwire (immediately available funds) to the Presenting Agent an amount equal to
the price of such Note which was previously sent by wire transfer to the account
of the Issuer maintained at Chemical Bank in accordance with Settlement
Procedure "J", and (ii) the Trustee will deliver the withdrawal message and take
the related actions described in the preceding paragraph. Such debits and
credits will be made on the settlement date, if possible, and in any event not
later than 5:00 p.m. on the following Business Day. If such failure shall have
occurred for any reason other than the failure of the Presenting Agent to
provide the Purchase Information to the Issuer or to provide a confirmation to
the Purchaser, the Issuer will reimburse the Presenting Agent on an equitable
basis for its loss of the use of funds during the period when the funds were
credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Note, DTC may take any actions in accordance with its SDFS operating
procedures then in effect. In the event of a failure to settle with respect to
one or more, but not all, of the Book-Entry Notes to have been represented by a
Global Note, the Trustee will provide, in accordance with Settlement Procedures
"D"
B-8
and "E," for the authentication and issuance of a Global Note representing the
other Book-Entry Notes to have been represented by such Global Note and will
make appropriate entries in its records.
TRUSTEE NOT TO RISK FUNDS
Nothing herein shall be deemed to require the Trustee to risk or expend its
own funds in connection with any payment made to the Issuer, or the Presenting
Agent, or DTC, or any Noteholder, or any Participant, it being understood by all
parties that payments made by the Trustee to the Issuer, or the Presenting
Agent, or DTC, or any Noteholder, or any Participant shall be made only to the
extent that funds are provided to the Trustee for such purpose.
ORIGINAL ISSUE DISCOUNT NOTES AND ZERO-COUPON NOTES
Notes may be issued as Original Issue Discount Notes (which may be
Certificated Notes or Book-Entry Notes, as indicated), which term includes all
Notes, including Zero-Coupon Notes, which provide that upon redemption or
acceleration of the maturity thereof an amount less than the principal amount
thereof shall become due and payable. In the event of redemption or
acceleration of maturity of an Original Issue Discount Note, the amount payable
on such Note, in lieu of the principal amount due at the Stated Maturity
thereof, shall, unless the Note provides otherwise, be the Amortized Face Amount
(as defined below) of such Note.
The "Amortized Face Amount" of an Original Issue Discount Note shall be the
amount equal to (a) the Issue Price of the Note (as defined below) plus (b)that
portion of the difference between the Issue Price and the principal amount of
such Note that has been amortized at the Stated Yield (as defined below) of such
Note (computed in accordance with generally accepted United States bond yield
computation principles) at the date as of which the Amortized Face Amount is
calculated, but in no event shall the Amortized Face Amount exceed the principal
amount of such Note due at the Stated Maturity thereof. As used in the
preceding sentence, the term "Issue Price" means the principal amount of such
Original Issue Discount Note due at the Stated Maturity thereof less the
Original Issue Discount of such Note stated in the legend on the face thereof,
and the "Stated Yield" of such Note means the yield-to-maturity stated in the
legend on the face of such Note (or, if not so stated, the yield-to-maturity
compounded semiannually and computed in accordance with generally accepted
United States bond yield computation principles) for the period from the Issue
Date of such Note as stated in the legend on the face of such Note, to the
Stated Maturity thereof on the basis of its Issue Price and principal amount.
There will be no periodic payments of interest on Zero-Coupon Notes.
References in these Administrative Procedures to interest payments and interest-
related information do not apply to Zero-Coupon Notes.
MATURITIES
Each Note will mature on a date, selected by the purchaser and agreed to by
the Issuer and Guarantor, which will be nine months or more from the Issue Date.
Each Floating Rate Note (as defined below) will mature on an Interest Payment
Date (as defined below) for such Note.
B-9
ADVERTISING COSTS
The Issuer will determine in consultation with the Agents the amount of
advertising that may be appropriate in offering the Notes. The Issuer shall pay
for only the advertising expenses approved in advance by the Issuer.
BUSINESS DAY
"Business Day" means any day which is not a Saturday or Sunday and which in
New York City (and, with respect to LIBOR Notes (as defined in the Prospectus
Supplement) in London) is not a day on which banking institutions are generally
authorized or obligated by law, regulation or executive order to close.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Issuer and the Agents will discuss from time to time the rates to be
borne by the Notes that may be sold as a result of the solicitation of offers by
the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms, and communicated with the Issuer, if the Issuer plans to
accept an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement, reflecting the terms of such Notes and, after approval from such
Agent, will arrange to have such Pricing Supplement, filed with, or transmitted
by means reasonably calculated to result in filing with, the Commission and will
supply at least two copies of such Pricing Supplement and if requested by the
Presenting Agent, additional copies of the Prospectus, as then amended or
supplemented, to the Presenting Agent. No settlements with respect to Notes
upon such terms may occur prior to such transmitting for filing and the Agents
will not, prior to such transmitting for filing, mail confirmations to customers
who have offered to purchase Notes upon such terms. After such transmitting for
filing, sales, mailing of confirmations and settlements may occur with respect
to Notes upon such terms, subject to the provisions of "Delivery of Prospectus"
below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Agent. Each Agent
will forthwith suspend solicitation of purchases. At that time, the Agents will
recommend and the Issuer will establish rates to be so "posted". Following
establishment of posted rates and prior to the filing or transmitting described
in the preceding paragraph, the Agents may only record indications of interest
in purchasing Notes at the posted rates. After such transmitting for filing,
sales, mailing of confirmations and settlements may resume, subject to the
provisions of "Delivery of Prospectus" below.
Outdated Pricing Supplements, and copies of the Prospectus to which they
are attached (other than those retained for files), will be destroyed.
SUSPENSION OF SOLICITATION: AMENDMENT OR SUPPLEMENT
As provided in the Distribution Agreement. The Issuer may suspend
solicitation of purchases at any time for any reason and each Agent will use its
best efforts to suspend solicitations as soon as practicable after notice (and
in any event within one Business Day). Any suspension of solicitation shall
B-10
continue until such time as the Issuer has advised the Agents that solicitation
of purchases may be resumed.
If the Agents receive the notice from the Issuer contemplated by Section
4(b) of the Distribution Agreement, they will promptly suspend solicitation and
will only resume solicitation as provided in the Distribution Agreement. If the
Issuer decides to amend or supplement any Registration Statement (as defined in
the Distribution Agreement) or the Prospectus relating to the Notes, it will
promptly advise each Agent and will furnish each Agent with the proposed
amendment or supplement in accordance with the terms of the Distribution
Agreement. The Issuer will promptly file or transmit by means reasonably
calculated to result in filing with the Commission such amendment or supplement,
provide the Agents with copies of any such amendment or supplement, confirm to
the Agents that such amendment or supplement has been filed with the Commission
and advise the Agents that solicitation may be resumed.
Any such suspension shall not affect the Issuer's or the Guarantor's
obligations under the Distribution Agreement; and in the event that at the time
the Issuer suspends solicitation of purchases there shall be any offers already
accepted by the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Agents and the Trustee if such offers are not to be settled
and if copies of the Prospectus as in effect at the time of the suspension may
not be delivered in connection with the settlement of such offers.
ACCEPTANCE OF OFFERS
Each Agent will promptly advise the Issuer, orally or in writing, of each
reasonable offer to purchase Notes received by it, other than those rejected by
such Agent. Each Agent may, in its discretion reasonably exercised, without
notice to the Issuer or the Guarantor, reject any offer received by it, in whole
or in part. The Issuer will have the sole right to accept offers to purchase
Notes on its behalf and on behalf of the Guarantor and may reject any such
offer, in whole or in part. If the Issuer rejects an offer, the Issuer will
promptly notify the Agent involved.
DELIVERY OF PROSPECTUS
A copy of the Prospectus, as most recently amended or supplemented with
respect to the Notes (including the appropriate Pricing Supplement) on the date
of delivery thereof (except as provided below), must be delivered to a purchaser
prior to or together with the earlier of the delivery of (i) the written
confirmation provided for above and (ii) any Note purchased by such purchaser.
Subject to the foregoing, it is anticipated that delivery to the purchaser of
the Prospectus, as so amended or supplemented, confirmation and Notes will be
made simultaneously at settlement. The Issuer shall ensure that the Presenting
Agent receives copies of the Prospectus and each amendment or supplement thereto
with respect to the Notes (including appropriate Pricing Supplements) in such
quantities and within such time limits as will enable the Presenting Agent to
deliver such confirmation or Note to a purchaser as contemplated by these
procedures and in compliance with the first sentence of this paragraph. If,
since the date of acceptance of a purchaser's offer, the Prospectus shall have
been supplemented solely to reflect any sale of Registered Securities or Notes
on terms different from those agreed to between the Issuer and such purchaser or
a change in posted rates not applicable to such purchaser, such purchaser shall
not receive the Prospectus, as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes being
purchased by
B-11
such purchaser and otherwise as most recently amended or supplemented on the
date of delivery of the Prospectus.
AUTHENTICITY OF SIGNATURES
The Issuer and the Guarantor will cause the Trustee to furnish the Agents
from time to time, upon written request, with the specimen signatures of each of
the Trustee's officers, employees or agents who have been authorized by the
Trustee to authenticate Notes, but the Agents will have no obligation or
liability to the Issuer or the Guarantor or the Trustee in respect of the
authenticity of the signature of any officer, employee or agent of the Issuer,
the Guarantor, or the Trustee on any Note or Global Note.
CALCULATION OF AND PAYMENT DATES FOR INTEREST
Each Note will bear interest (i) in the case of Notes bearing interest at a
Fixed Rate (the "Fixed Rate Notes", which may be either Fixed Rate Certificated
Notes or Fixed Rate Book-Entry Notes, as indicated), at the annual rate stated
on the face thereof, payable semiannually in arrears on January 31 and July 31
(each an "Interest Payment Date") with respect to such Fixed Rate Note and at
any Redemption Date, Repayment Date or the Stated Maturity and (ii) in the case
of Notes bearing interest at a rate or rates determined by reference to an
interest rate formula (the "Floating Rate Notes," which may be either Floating
Rate Certificated Notes or Floating Rate Book-Entry Notes, as indicated), at a
rate determined pursuant to the formula stated on the face thereof, payable in
arrears on such dates as are specified therein and in the related Pricing
Supplement (each an "Interest Payment Date" with respect to such Floating Rate
Note) and at any Redemption Date or the Stated Maturity. Interest (including
payments for partial periods) will be calculated and paid on the basis of a
360-day year of twelve 30-day months for any Fixed Rate Notes.
The "Regular Record Date" with respect to Floating Rate Notes shall be the
date 15 calendar days prior to each Interest Payment Date, whether or not such
date shall be a Business Day, and the Regular Record Dates with respect to the
Fixed Rate Notes shall be the January 15 and July 15 next preceding the January
31 and July 31 Interest Payment Dates. The first payment of interest on any
Note originally issued between a Regular Record Date and an Interest Payment
Date will be made on the Interest Payment Date following the next succeeding
record date. With respect to Fixed Rate Notes, each payment of interest shall
include interest accrued to but excluding the date of such payment. For special
provisions relating to Floating Rate Notes, see the section entitled
"Description of the Notes" in the Prospectus Supplement.
X-00
XXXXXXX X
XXXXXXXX XXXXXXXXX
__________________, _______
Union Oil Company of California
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, XX 00000
Unocal Corporation
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxxxx, XX 00000
Attention: Treasurer
1. The undersigned agrees to purchase the following principal amount of
the Securities described in the Distribution Agreement dated _______ ___, 1998
(the "Distribution Agreement"):
Principal Amount _______________
Interest Rate or Formula ______%
Stated Maturity _______________, ___________
Discount or Premium _______% of Principal Amount
Redemption Terms, if any ___________________________
Price to be paid
to Issuer $______________
Settlement Date _________, _____
(Additional Terms)
2. Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings as
in the Distribution Agreement. The terms Agent or Agents, as used in the
Distribution Agreement, shall be deemed to refer only to the undersigned for
purposes of this Agreement.
3. This Agreement incorporates by reference Sections 4, 6, 7 (including
any Amendments entered into pursuant thereto by the Issuer and the Guarantor and
the undersigned Agent), 12 and 13 of the Distribution Agreement, the first and
last sentences of Section 9 thereof and, to the extent applicable, the
Procedures, except that the phrase "jointly with any other indemnifying party
similarly notified" in Section 7(a), the phrase "and who shall not be counsel to
any other indemnified party who may have interest conflicting with those of such
indemnified party" in Section 7(a) and the last sentence of Section 7(d) shall
not be applicable. You and we agree to perform, to the extent applicable, our
respective duties and obligations specifically provided to be performed by each
of us in the Procedures.
C-1
4. Our obligation to purchase Securities hereunder is subject to the
accuracy on the above Settlement Date of your representations and warranties
contained in Section 2 of the Distribution Agreement (it being understood that
such representations and warranties shall relate to the applicable Registration
Statement and the Prospectus, as amended at such Settlement Date) and to your
performance and observance of all covenants and agreements contained in Sections
4 and 6 thereof. Our obligations hereunder is also subject to the following
conditions:
(a) the satisfaction, at such Settlement Date, of each of the
conditions set forth in subsections (a) and (b) and (d) through (g) of Section 5
of the Distribution Agreement (it being understood that each document so
required to be delivered shall be dated such Settlement Date and that each such
condition and the statements contained in each such document that relate to the
applicable Registration Statement or the Prospectus shall be deemed to relate to
the applicable Registration Statement or the Prospectus, as the case may be, as
amended or supplemented at the time of settlement on such Settlement Date, and
except that the opinion described in Section 5(d) shall be modified so as to
state that the Securities being sold on such Settlement Date, when delivered
against payment therefor as provided in the Indenture and this Agreement, will
have been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Issuer and the Guarantor
enforceable in accordance with their terms, subject only to the exceptions as to
enforcement set forth in clause (v) of Section 5(d) of the Distribution
Agreement, and will conform to the description thereof contained in the
Prospectus, as amended or supplemented at such Settlement Date);
(b) there shall not have occurred since the date hereof (i) any
change, or any development involving a prospective charge, in or affecting
particularly the business or properties of the Issuer or the Guarantor or their
respective subsidiaries other than as set forth or contemplated in the
Prospectus, as amended or supplemented, which, in our judgment, materially
impairs the investment quality of the Securities; (ii) any downgrading in the
rating of the Issuer's or the Guarantor's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) and no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any of the Issuer's or the Guarantor's debt securities; (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Issuer or the Guarantor on
any exchange or in the over-the-counter market if the effect of any such
suspension, limitation or setting of minimum prices makes it impractical or
inadvisable to proceed with the sale and delivery of the Securities on the terms
and in the manner contemplated in this Prospectus as amended and supplemented;
(iv) any banking moratorium declared by Federal or New York authorities; or (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in our judgment, the effect of any
such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of an payment
for the Securities; and
(c) there has been no notice pursuant to Section 4(a) of the
Distribution Agreement of an intention to amend or supplement, nor has there
been any such amendment or supplement to, the applicable Registration Statement
or the Prospectus by incorporation by reference pursuant to Section
C-2
4(a) of the Distribution Agreement between the date of this Agreement and the
Settlement Date (as defined above).
5. In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, enter into any agreement to sell, or announce the proposed issuance or
sale of, any debt securities of the Issuer or the Guarantor in the United
States, other than sales of Securities, borrowings under your revolving credit
agreements and lines of credit, the private placement of securities and
issuances of your commercial paper.
6. If for any reason, other than because of our default, our purchase of
the above Securities is not consummated, you shall remain responsible for the
expenses to be paid (but not our expenses to be reimbursed) by you pursuant to
Section 4 of the Distribution Agreement and the respective obligations of you
and the undersigned pursuant to Section 7 shall remain in effect, in each case
as incorporated herein. If for any reason our purchase of the above Securities
is not consummated other than because of our default or a failure to satisfy a
condition set forth in clause (iii), (iv) or (v) of paragraph (b) above, you
shall reimburse us, severally, for all out-of-pocket expenses reasonably
incurred by us in connection with the offering of the above Securities and not
otherwise required to be reimbursed pursuant to Section 4 of the Distribution
Agreement.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
[Insert Name of Purchaser]
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
UNION OIL COMPANY OF CALIFORNIA
By:
--------------------------------
Name:
Title:
AND
UNOCAL CORPORATION
By:
--------------------------------
Name:
Title:
C-3
EXHIBIT D
FOREIGN CURRENCY AMENDMENT
[Insert Title of Foreign Currency
to be Covered by this Amendment]
The undersigned hereby agree that for the purposes of the issue and sale of
Securities denominated in [title of currency] (the "Applicable Foreign
Currency") pursuant to the Distribution Agreement by and among Union Oil Company
of California, Unocal Corporation, Xxxxxx Xxxxxxx & Co. Incorporated, Credit
Suisse First Boston Corporation, X. X. Xxxxxx Securities Inc., NationsBanc
Xxxxxxxxxx Securities LLC and Salomon Brothers Inc, dated _______ __, 1998 (the
"Distribution Agreement"), the following additions and modifications shall be
made to the Distribution Agreement. The additions and modifications adopted
hereby shall be of the same effect for the sale under the Distribution Agreement
of all Securities denominated in the Applicable Foreign Currency, whether
offered on an agency or principal basis, but shall be of no effect with respect
to Securities denominated in any currency other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used herein which
are defined in the Distribution Agreement shall have the same meanings as in the
Distribution Agreement. The term Agents, as used in the Distribution Agreement,
shall be deemed to refer to the undersigned Agents for purposes of this
Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, according to the customary practice of the Agents when
acting as underwriters in offerings denominated in the Applicable Foreign
currency.]
----------------------, -----
UNION OIL COMPANY OF CALIFORNIA
By:
--------------------------------
Name:
Title:
UNOCAL CORPORATION
By:
--------------------------------
Name:
Title:
[Names of Agents participating in the offering of Securities in the Applicable
Foreign Currency]
By:
--------------------------------
Name:
Title:
