<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 1999
REGISTRATION NO. 333-69303
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
OCCIDENTAL PETROLEUM DELAWARE 95-4035997
CORPORATION
OXY CAPITAL TRUST I DELAWARE 95-7065346
OXY CAPITAL TRUST II DELAWARE 95-7065347
OXY CAPITAL TRUST DELAWARE 95-7065348
III
<CAPTION>
(EXACT NAME OF REGISTRANT AS (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) OF INCORPORATION OR ORGANIZATION) IDENTIFICATION
NO.)
</TABLE>
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 208-8800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
DONALD P. DE BRIER, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
OCCIDENTAL PETROLEUM CORPORATION
10889 WILSHIRE BOULEVARD
LOS ANGELES, CALIFORNIA 90024
(310) 208-8800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 6, 1999
PROSPECTUS
$1,400,000,000
[LOGO OF OCCIDENTAL PETROLEUM CORPORATION]
OCCIDENTAL PETROLEUM CORPORATION
Senior Debt Securities and Subordinated Debt Securities
OXY CAPITAL TRUST I
OXY CAPITAL TRUST II
OXY CAPITAL TRUST III
Preferred Securities Guaranteed To The Extent Set Forth Herein By
Occidental Petroleum Corporation
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OCCIDENTAL:
. will pay principal, premium (if any) and interest on its senior debt
securities and, subject to payment of its senior debt securities, on its
subordinated debt securities; and
. will guarantee the payment by each trust of the preferred securities based on
several obligations described in this prospectus.
THE TRUSTS:
Oxy Capital Trust I, Oxy Capital Trust II and Oxy Capital Trust III are
Delaware business trusts. Each trust will:
. sell preferred securities (representing undivided beneficial interests in the
trust) to the public;
. sell common securities (representing undivided beneficial interests in the
trust) to Occidental;
. use the proceeds from these sales to buy an equal amount of subordinated debt
securities of Occidental; and
. distribute the cash payments it receives on the subordinated debt securities
it owns to the holders of the preferred and common securities.
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus or the accompanying prospectus supplement is truthful or
complete. Any representation to the contrary is a criminal offense.
- --------------------------------------------------------------------------------
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
The date of this prospectus is , 1999.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Forward-Looking Statements................................................ 2
About This Prospectus..................................................... 3
Where You Can Find More Information....................................... 4
Occidental................................................................ 5
The Trusts................................................................ 5
Use of Proceeds........................................................... 6
Ratios of Earnings to Fixed Charges and Earnings to Combined Fixed Charges
and Preferred Stock Dividends............................................ 6
Description of Securities................................................. 6
Description of Senior Debt Securities..................................... 6
Description of Subordinated Debt Securities............................... 16
Description of Preferred Securities....................................... 24
Description of Preferred Securities Guarantees............................ 30
Relationship among Preferred Securities, Preferred Securities Guarantees
and Subordinated Debt Securities Held by Each Trust...................... 32
Plan of Distribution...................................................... 33
Legal Opinions............................................................ 34
Experts................................................................... 34
</TABLE>
FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-looking
statements, including those identified by the words "believes," "anticipates,"
"expects" and similar expressions. We have based these forward-looking
statements on our current expectations and projections about future events.
These forward-looking statements are subject to risks, uncertainties, and
assumptions about Occidental, including, among other things:
. global commodity pricing fluctuations;
. competitive pricing pressures;
. higher than expected costs including feedstocks;
. the supply and demand considerations for our products;
. any general economic recession domestically or internationally; and
. not successfully completing any expansion, capital expenditure,
acquisition or divestiture.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus or in the incorporated documents might not
occur.
2
<PAGE>
You should rely only on the information contained or incorporated by reference
in this prospectus and any accompanying prospectus supplements. We have not
authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information contained or incorporated by reference in this prospectus and
any accompanying prospectus supplement is only accurate as of the date on the
front cover of this prospectus and the prospectus supplement, respectively. Our
business, financial condition, results of operations and prospects may have
changed since those dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement Occidental filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf registration process, Occidental may sell any combination of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $1,400,000,000. This prospectus provides you with a general
description of the securities Occidental may offer. Each time Occidental sells
securities, Occidental will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
3
<PAGE>
WHERE YOU CAN FIND MORE
INFORMATION
Occidental files reports, proxy statements, and other information with the
Securities and Exchange Commission ("SEC"). Such reports, proxy statements, and
other information concerning Occidental can be read and copied at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the Public Reference
Room. The SEC maintains an internet site at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
issuers that file electronically with the SEC, including Occidental.
Occidental's common stock is listed and traded on the New York Stock Exchange
("NYSE"). These reports, proxy statements and other information are also
available for inspection at the offices of the NYSE, 20 Broad Street, New York,
New York 10005.
This prospectus is part of a registration statement filed with the SEC by
Occidental and the trusts. The full registration statement can be obtained from
the SEC as indicated above or from Occidental.
The SEC allows Occidental to "incorporate by reference" the information it
files with the SEC. This permits Occidental to disclose important information
to you by referencing these filed documents. Any information referenced this
way is considered part of this prospectus, and any information filed with the
SEC subsequent to this prospectus will automatically be deemed to update and
supersede this information. Occidental incorporates by reference the following
documents which have been filed with the SEC:
. Annual Report on Form 10-K for the year ended December 31, 1997;
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998; and
. Current Reports on Form 8-K, dated January 26, 1998, January 30, 1998,
January 31, 1998, February 10, 1998, February 11, 1998, February 12, 1998,
April 1, 1998, April 20, 1998, May 15, 1998 (2 reports), July 20, 1998,
September 25, 1998, October 21, 1998, November 16, 1998 and January 6, 1999.
Occidental also incorporates by reference any future filings made with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934 (the
"Exchange Act") until Occidental or the trusts sell all of the debt securities
and preferred securities.
Occidental will provide without charge upon written or oral request, a copy of
any or all of the documents which are incorporated by reference to this
prospectus. Requests should be directed to Occidental Petroleum Corporation,
10889 Wilshire Boulevard, Los Angeles, California 90024, Attn: J. R. Havert,
Vice President and Treasurer; telephone: (310) 208-8800.
There are no separate financial statements of the trusts in this prospectus.
Occidental does not believe such financial statements would be helpful because:
. The trusts are direct or indirect wholly-owned subsidiaries of Occidental,
which files consolidated financial information under the Exchange Act.
. The trusts do not have any independent operations other than issuing the
preferred and common securities and purchasing the subordinated debt
securities.
. Occidental guarantees the preferred securities of the trusts as described in
this prospectus.
4
<PAGE>
OCCIDENTAL
Occidental explores for, develops, produces and markets crude oil and natural
gas and manufactures and markets a variety of chlorovinyls (including basic
chemicals and polymers and plastics), specialty chemicals and petrochemicals.
Occidental conducts its principal operations through two subsidiaries,
Occidental Oil and Gas Corporation and Occidental Chemical Corporation, and its
29.5% interest in the Equistar Chemicals, LP petrochemicals partnership.
Occidental's executive offices are located at 10889 Wilshire Boulevard, Los
Angeles, California 90024; telephone (310) 208-8800.
THE TRUSTS
Occidental created three Delaware business trusts pursuant to three
Declarations of Trust. The trusts are named Oxy Capital Trust I, Oxy Capital
Trust II and Oxy Capital Trust III. Occidental will file an Amended and
Restated Declaration of Trust (a "Declaration") for each trust, which will
state the terms and conditions for each trust to issue and sell its preferred
securities and common securities. A form of Declaration is filed as an exhibit
to the registration statement of which this prospectus forms a part.
Each trust will exist solely to:
. issue and sell its preferred and common securities;
. use the proceeds from the sale of its preferred and common securities to
purchase a series of Occidental's subordinated debt securities;
. maintain its status as a grantor trust for United States federal income tax
purposes; and
. engage in other activities that are necessary or incidental to these
purposes.
Occidental will purchase all of the common securities of each trust. The common
securities will represent an aggregate liquidation amount equal to at least 3%
of each trust's total capitalization. The preferred securities will represent
the remaining 97% of such trust's total capitalization. The common securities
will have terms substantially identical to, and will rank equal in priority of
payment with, the preferred securities. However, if Occidental defaults on the
related subordinated debt securities, then cash distributions and liquidation,
redemption and other amounts payable on the common securities will be
subordinate to the preferred securities in priority of payment.
The preferred securities will be guaranteed by Occidental as described later in
this prospectus.
Occidental has appointed five trustees to conduct each trust's business and
affairs:
. The Bank of New York ("Property Trustee");
. The Bank of New York (Delaware) ("Delaware Trustee"); and
. Three Occidental officers ("Regular Trustees").
Only Occidental, as owner of the common securities, can remove or replace the
trustees. In addition, Occidental can increase or decrease the number of
trustees. However, the majority of trustees will always be Regular Trustees.
Occidental will pay all fees and expenses related to each trust and each
offering of the related preferred securities and will pay all ongoing costs and
expenses of each trust, except such trust's obligations under the related
preferred and common securities.
The trusts will not have separate financial statements. The statements would
not be material to holders of the preferred securities because no trust will
have any independent operations. Each trust exists solely for the reasons
summarized above.
5
<PAGE>
USE OF PROCEEDS
The net proceeds Occidental receives from the sale of securities offered under
this prospectus will be used for general corporate purposes, including the
retirement of outstanding debt. Each trust will use all proceeds from the sale
of the common and preferred securities to purchase subordinated debt securities
of Occidental. The prospectus supplement with respect to any offering of
securities may identify different or additional uses for the proceeds of such
offering.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth Occidental's total enterprise ratios of earnings
to fixed charges and earnings to combined fixed charges and preferred stock
dividends based on the historical results of Occidental and its subsidiaries.
For the purpose of calculating these ratios, earnings consist of income from
continuing operations before income taxes (other than foreign oil and gas
taxes) and fixed charges. Fixed charges include interest and debt expense,
including the proportionate share of interest and debt expense of 50-percent-
owned equity investments and the portion of lease rentals representative of the
interest factor.
<TABLE>
<CAPTION>
NINE
MONTHS
ENDED
YEARS ENDED DECEMBER 31, SEPT. 30,
------------------------- ---------
1997 1996 1995 1994 1993 1998 1997
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges......... 1.55 2.08 1.75 (a) (a) 2.28 2.45
Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends............. 1.28 1.53 1.45 (b) (b) 2.19 1.96
</TABLE>
(a) Earnings were inadequate to cover fixed charges by $298 million in 1994 and
$224 million in 1993.
(b) Earnings were inadequate to cover fixed charges and preferred stock
dividends by $395 million in 1994 and $272 million in 1993.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of the senior debt securities, the
subordinated debt securities, the preferred securities, and the preferred
securities guarantee. These summaries are not meant to be a complete
description of each security. However, this prospectus and the accompanying
prospectus supplement contain the material terms and conditions for each
security. For more information please refer to (1) the indenture (the "Senior
Indenture") among Occidental and The Bank of New York, as trustee ("Senior
Indenture Trustee"), relating to issuance of each series of senior debt
securities, (2) the indenture (the "Subordinated Indenture") among Occidental
and The Bank of New York, as trustee (the "Subordinated Indenture Trustee")
relating to issuance of each series of subordinated debt securities, (3) the
Declaration of each trust, and (4) Occidental's guarantee of the preferred
securities issued by each trust (the "Preferred Securities Guarantees"). Forms
of these documents are filed as exhibits to the registration statement, which
includes this prospectus. Capitalized terms used in this prospectus that are
not defined will have the meanings given them in these documents.
DESCRIPTION OF SENIOR DEBT SECURITIES
GENERAL
Below is a description of certain general terms of the senior debt securities.
The description does not purport to be complete and is subject to and qualified
in its entirety by reference to the Senior Indenture. The particular terms of a
series of senior debt securities will be described in a prospectus supplement.
The senior debt securities will rank equally with all of Occidental's senior
and unsubordinated debt. The Senior Indenture does not limit the amount of
senior debt securities
6
<PAGE>
which Occidental may issue, nor does it limit Occidental or its subsidiaries
from issuing any other unsecured debt.
Occidental will issue the senior debt securities under the Senior Indenture.
The Senior Indenture will be qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"). The Senior Indenture is filed as an
exhibit to the registration statement which includes this prospectus.
Each prospectus supplement will describe the following terms relating to a
series of senior debt securities, as follows:
. the title;
. any limit on the amount that may be issued;
. whether or not such series of senior debt securities will be issued as
registered securities, bearer securities or both;
. the price at which such series of senior debt securities will be issued,
which may be at a discount;
. whether or not such series of senior debt securities will be issued in
global form, the terms and who the depositary will be;
. the maturity date(s);
. the person to whom any interest will be payable on any registered security,
if other than the person in whose name such security is registered at the
close of business on the regular record date;
. the annual interest rate(s), if any, (which may be fixed or variable) or
the method for determining the rate(s) and the date(s) interest will begin
to accrue, the date(s) interest will be payable and the regular record
date(s) for interest payment date(s) or the method for determining such
date(s);
. the place(s) where payments shall be payable, registered securities may be
surrendered for registration of transfer, securities may be surrendered for
exchange, and notices and demands to or upon Occidental may be served;
. the period(s) within which, and the price(s) at which, such series of
senior debt securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed, in whole or in part, and other related
terms and provisions;
. any mandatory or optional sinking fund provisions or any provisions for
remarketing the securities and other related terms and provisions;
. the denominations in which such series of senior debt securities will be
issued, if other than denominations of $1,000 in the case of registered
securities and any integral multiple thereof, and in the case of bearer
securities, if other than denominations of $5,000 and $100,000;
. the currency or currencies, including composite currencies or currency
units, in which such series of senior debt securities may be denominated or
in which payment of the principal of and interest, if any, on such series
of senior debt securities shall be payable, if other than the currency of
the United States of America, and, if so, whether such series of senior
debt securities may be satisfied and discharged other than as provided in
Article Four of the Senior Indenture;
. if the amounts of payments of principal of and interest, if any, on such
series of senior debt securities are to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which such series of senior debt securities are stated to be
payable, the manner in which such amounts shall be determined and the
7
<PAGE>
calculation agent, if any, with respect thereto;
. if other than the principal amount thereof, the portion of the principal
amount of such series of senior debt securities that will be payable upon
declaration of acceleration of the maturity thereof pursuant to an event of
default;
. if other than as defined in the Senior Indenture, the meaning of "Business
Day" when used with respect to such series of senior debt securities;
. if such series of senior debt securities may be issued or delivered (whether
upon original issuance or upon exchange of a temporary security of such
series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in the
Senior Indenture, the forms and terms of such certificates, documents or
conditions;
. any addition to, or modification or deletion of, any event of default,
covenant of Occidental or other term or provision specified in the Senior
Indenture with respect to such series of senior debt securities; and
. any other terms (which terms may be inconsistent with the Senior Indenture).
CONSOLIDATION, MERGER OR SALE
The Senior Indenture generally permits Occidental to merge or consolidate, or
sell, convey, transfer or otherwise dispose of its assets as an entirety or
substantially as an entirety, provided that no event of default would occur as
a result of such transaction. However, any successor or acquiror of such assets
must assume all of the obligations of Occidental under the Senior Indenture and
the senior debt securities and be organized and existing under U.S. laws.
LIMITATION ON LIENS
Occidental will not, nor will it permit any Consolidated Subsidiary (as defined
below) to, incur, create, assume, guarantee or otherwise become liable with
respect to any Secured Debt (as defined below), unless the Securities are
secured equally and ratably with (or prior to) such Secured Debt. This covenant
will not apply to: (1) Liens (as defined below) existing on the date of the
Senior Indenture; (2) Liens existing on property of, or on any shares of stock
or Indebtedness of, any corporation at the time such corporation becomes a
Consolidated Subsidiary; (3) Liens in favor of Occidental or a Consolidated
Subsidiary; (4) Liens in favor of governmental bodies to secure progress,
advance or other payments; (5) Liens existing on property, shares of stock or
Indebtedness at the time of acquisition thereof (including acquisition through
merger or consolidation) or Liens to secure the payment of all or any part of
the purchase price thereof or the cost of construction, installation,
renovation, improvement or development thereon or thereof or to secure any
Indebtedness incurred prior to, at the time of, or within 360 days after the
later of the acquisition, completion of such construction, installation,
renovation, improvement or development or the commencement of full operation of
such property or within 360 days after the acquisition of such shares or
Indebtedness for the purpose of financing all or any part of the purchase price
or cost thereof; and (6) any extension, renewal or refunding of any Liens
referred to in the foregoing clauses (1) through (5). Notwithstanding the
foregoing, Occidental and one or more Consolidated Subsidiaries may incur,
create, assume, guarantee or otherwise become liable with respect to Secured
Debt that would otherwise be subject to the foregoing
8
<PAGE>
restrictions if, after giving effect thereto, the aggregate amount of all
Secured Debt, together with the Discounted Rental Value (as defined below) in
respect of sale and leaseback transactions subject to the restrictions
discussed in the following paragraph (excluding sale and leaseback transactions
exempted from such restrictions pursuant to clause (1) or (2) of the last
sentence of such paragraph), would not exceed 10% of consolidated Net Tangible
Assets (as defined below) of Occidental and its Consolidated Subsidiaries.
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS
Occidental will not nor will it permit any Consolidated Subsidiary to sell and
lease back any Principal Domestic Property (as defined below) unless: (1) the
sale has occurred within 360 days after the later of the acquisition,
completion of construction or commencement of full operations of the Principal
Domestic Property; (2) Occidental or such Consolidated Subsidiary could subject
such Principal Domestic Property to a Lien pursuant to the provisions described
above under "Limitation on Liens" in an amount equal to the Discounted Rental
Value with respect to the sale and leaseback transaction without equally and
ratably securing the Securities; or (3) Occidental or such Consolidated
Subsidiary, within 120 days after such sale, applies or causes to be applied to
the retirement of its Funded Debt (as defined below) an amount (subject to
credits for certain voluntary retirements of Funded Debt) not less than the
greater of (a) the net proceeds of the sale of the Principal Domestic Property
leased pursuant to such arrangement or (b) the fair value (as determined in any
manner approved by the Board of Directors of Occidental) of the Principal
Domestic Property so leased. This restriction will not apply to any sale and
leaseback transaction (1) between Occidental and a Consolidated Subsidiary or
between Consolidated Subsidiaries or (2) involving the taking back of a lease
for a period, including renewals, of not more than three years.
CERTAIN DEFINITIONS
"Consolidated Subsidiary" means any Subsidiary included in the financial
statements of Occidental and its Subsidiaries prepared on a consolidated basis
in accordance with generally accepted accounting principles.
"Discounted Rental Value" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent (after deducting the amount of
rent to be received by such Person under noncancelable subleases) required to
be paid by such Person under such lease during the remaining noncancelable term
thereof (including any such period for which such lease has been extended or
may, at the option of the lessor, be extended), discounted from the respective
due dates thereof to such date at a rate per annum of 11 3/4%. The net amount
of rent required to be paid under any such lease for any such period shall be
the aggregate amount of the rent payable by the lessee with respect to such
period, after excluding amounts required to be paid on account of maintenance
and repairs, insurance, taxes, water rates and similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated. If and to the extent the amount of any rent
during any future period is not definitely determinable under the lease in
question, the amount of such rent shall be estimated in such reasonable manner
as the Board of Directors of Occidental may in good faith determine.
9
<PAGE>
"Funded Debt" means all Indebtedness maturing one year or more from the date of
the creation thereof, all Indebtedness directly or indirectly renewable or
extendible, at the option of the debtor, by its terms or by the terms of any
instrument or agreement relating thereto, to a date one year or more from the
date of the creation thereof, and all Indebtedness under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more, even though such Indebtedness may also conform to
the definition of Short-Term Borrowing.
"Lien" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance to secure Indebtedness for borrowed money but excluding any
security interest which a lessor may be deemed to have under a lease and any
lien which may be deemed to exist under a Production Payment or under any
subordination arrangement.
"Net Tangible Assets" of any specified Person means the total of all assets
properly appearing on a balance sheet of such Person prepared in accordance
with generally accepted accounting principles, after deducting from such total,
without duplication of deductions, (1) all Current Liabilities of such Person;
(2) that portion of the book amount of all such assets which would be treated
as intangibles under generally accepted accounting principles, including,
without limitation, all such items as goodwill, trademarks, trade names,
brands, copyrights, patents, licenses and rights with respect to the foregoing
and unamortized debt discount and expense; and (3) the amount, if any, at which
any stock of such Person appears on the asset side of such balance sheet.
"Principal Domestic Property" means any (1) developed oil or gas producing
property or (2) processing or manufacturing plant, in each case which as of the
date of the Indenture is or thereafter is owned or leased by Occidental or any
Consolidated Subsidiary and which is located in the continental United States
(provided, however, that any such property or plant declared by the Board of
Directors by Board Resolution not to be of material importance to the business
of Occidental and its Consolidated Subsidiaries taken as a whole will be
excluded from the foregoing definition).
"Production Payment" means any economic interest in oil, gas or mineral
reserves which (1) entitles the holder thereof to a specified share of future
production from such reserves, free of the costs and expenses of such
production, and (2) terminates when a specified quantity of such share of
future production from such reserves has been delivered or a specified sum has
been realized from the sale of such share of future production from such
reserves.
"Secured Debt" means any Indebtedness of Occidental or any Consolidated
Subsidiary, secured by a Lien on any Principal Domestic Property or on any
shares of stock or on any Indebtedness of any Consolidated Subsidiary which
owns any Principal Domestic Property.
EVENTS OF DEFAULT UNDER THE SENIOR INDENTURE
The following are events of default under the Senior Indenture with respect to
any series of senior debt securities issued:
. failure to pay interest when due and such failure continues for 30 days and
the time for payment has not been extended or deferred;
. failure to pay the principal (or premium, if any) when due;
. failure to observe or perform any other covenant contained in the senior
debt
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securities or the Senior Indenture (other than a covenant specifically
benefitting only another series of senior debt securities), and such failure
continues for 60 days after Occidental receives notice from the Senior
Indenture Trustee or holders of at least 25% in aggregate principal amount
of the outstanding senior debt securities of that series;
. acceleration of more than $50,000,000 of debt of Occidental, and such debt
is not discharged or such acceleration is not cancelled within 20 days after
Occidental receives notice from the Senior Indenture Trustee or holders of
at least 25% in aggregate principal amount of the outstanding senior debt
securities of that series;
. certain events of bankruptcy, insolvency or reorganization of Occidental;
and
. any other event of default specified in the prospectus supplement relating
to such series of senior debt securities.
If an event of default with respect to senior debt securities of any series
occurs and is continuing, the Senior Indenture Trustee or the holders of at
least 25% in principal amount of the outstanding senior debt securities of that
series, by notice in writing to Occidental (and to the Senior Indenture Trustee
if notice is given by such holders), may declare the principal of (or if such
senior debt securities are discount securities, the portion of the principal
amount as specified in the applicable prospectus supplement), premium, if any,
and accrued interest, if any, due and payable immediately.
The holders of a majority in aggregate principal amount of the outstanding
senior debt securities of an affected series may waive any past default or
event of default with respect to such series and its consequences, except
defaults or events of default regarding:
. payment of principal or interest; or
. covenants that cannot be modified or amended without the consent of each
holder of any outstanding senior debt securities affected (as described
under "--Modification of Senior Indenture; Waiver" below).
Any such waiver shall cure such default or event of default.
Subject to the terms of the Senior Indenture, if an event of default under the
Senior Indenture shall occur and be continuing, the Senior Indenture Trustee
will be under no obligation to exercise any of its rights or powers under the
Senior Indenture at the request or direction of any of the holders of the
applicable series of senior debt securities, unless such holders have offered
the Senior Indenture Trustee reasonable security or indemnity. The holders of a
majority in principal amount of the outstanding senior debt securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Senior Indenture Trustee, or
exercising any trust or power conferred on the Senior Indenture Trustee, with
respect to the senior debt securities of that series, provided that:
. the direction given to the Senior Indenture Trustee is not in conflict with
any law or the Senior Indenture;
. the Senior Indenture Trustee may take any other action deemed proper by it
which is not inconsistent with such direction; and
. the Senior Indenture Trustee has not determined that the action would be
unjustly prejudicial to the holders not involved in the proceeding.
A holder of the senior debt securities of any series will have the right to
institute a proceeding under the Senior Indenture or to
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appoint a receiver or trustee, or to seek other remedies only if:
. the holder has given written notice to the Senior Indenture Trustee of a
continuing event of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the
outstanding senior debt securities of that series have made written request
to, and such holders have offered reasonable indemnity to, the Senior
Indenture Trustee to institute such proceedings as trustee; and
. the Senior Indenture Trustee does not institute such proceeding, and does
not receive from the holders of a majority in aggregate principal amount of
the outstanding senior debt securities of that series other conflicting
directions, within 60 days after such notice, request and offer.
These limitations do not apply to a suit instituted by a holder of senior debt
securities if Occidental defaults in the payment of the principal, premium, if
any, or interest on, the senior debt securities.
Occidental will periodically file statements with the Senior Indenture Trustee
regarding its compliance with the conditions and covenants in the Senior
Indenture.
MODIFICATION OF SENIOR INDENTURE; WAIVER
Occidental and the Senior Indenture Trustee may change the Senior Indenture
without the consent of any holders with respect to certain matters, including:
. evidencing the succession of another person to Occidental and the
assumption by it of the covenants of Occidental in the Senior Indenture and
the securities of such series;
. adding to the covenants, agreements and obligations of Occidental for the
benefit of the holders of such series of senior debt securities, or to
surrender any right or power the Senior Indenture confers upon Occidental;
. evidencing and providing for the acceptance of appointment under the Senior
Indenture of a successor Senior Indenture Trustee with respect to the
securities of one or more series and to add to or change any provisions of
the Senior Indenture as shall be necessary to provide for or facilitate the
administration of the trusts by more than one Senior Indenture Trustee;
. curing any ambiguity or correcting any inconsistency in the Senior
Indenture; and, provided, that no such action shall adversely affect the
interests of the holders of such senior debt securities;
. adding, changing or eliminating any provisions of the Senior Indenture
(which addition, change or elimination may apply to one or more series of
senior debt securities), provided that any such addition, change or
elimination neither (a) applies to any security of any series created prior
to the execution of such supplemental indenture that is entitled to the
benefit of such provision nor (b) modifies the rights of holders of any
such security with respect to such provisions;
. securing the securities; or
. changing anything else that does not adversely affect the interests of any
holder of senior debt securities.
In addition, under the Senior Indenture, the rights of holders of a series of
senior debt securities may be changed by Occidental and the Senior Indenture
Trustee with the written consent of the holders of at least a majority in
aggregate principal amount of the outstanding senior debt securities of each
series that is
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affected. However, the following changes, among other things, may be made only
with the consent of each holder of any outstanding senior debt securities
affected:
. changing the stated maturity of such senior debt securities;
. reducing the principal amount of a discount security payable upon
declaration of acceleration;
. reducing the principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the redemption of
any such senior debt securities;
. changing the place or currency of payment of principal or interest, if any,
on any such senior debt securities;
. impairing the right to institute suit for the enforcement of any payment on
or with respect to any such senior debt securities; and
. modifying any of the foregoing requirements or reducing the percentage of
senior debt securities, the holders of which are required to consent to any
amendment or waiver of any covenant or past default.
FORM, EXCHANGE, AND TRANSFER
The senior debt securities of each series may be issued as registered
securities, as bearer securities (with or without coupons) or both. Unless
otherwise specified in the applicable prospectus supplement, registered
securities will be issued in denominations of $1,000 and any integral multiple
thereof and bearer securities will be issued in denominations of $5,000 and
$100,000. Subject to the terms of the Senior Indenture and the limitations
applicable to global securities described in the applicable prospectus
supplement, registered securities will be exchangeable for other registered
securities of the same series, in any authorized denomination and of like tenor
and aggregate principal amount.
Subject to the terms of the Senior Indenture and the limitations applicable to
global securities set forth in the applicable prospectus supplement, senior
debt securities issued as registered securities may be presented for exchange
or for registration of transfer (duly endorsed or with the form of transfer
duly executed) at the office of the Security Registrar or at the office of any
transfer agent designated by Occidental for such purpose. Bearer securities
will not be issued in exchange for registered securities. Unless otherwise
provided in the senior debt securities to be transferred or exchanged, no
service charge will be made for any registration of transfer or exchange, but
Occidental may require payment of any taxes or other governmental charges.
Occidental has appointed the Senior Indenture Trustee as Security Registrar.
Any transfer agent (in addition to the Security Registrar) initially designated
by Occidental for any senior debt securities will be named in the applicable
prospectus supplement. Occidental may at any time designate additional transfer
agents or rescind the designation of any transfer agent or approve a change in
the office through which any transfer agent acts, except that Occidental will
be required to maintain a transfer agent in each place of payment for the
senior debt securities of each series.
If the senior debt securities of any series are to be redeemed, Occidental will
not be required to:
. issue, register the transfer of, or exchange any senior debt securities of,
that series during a period beginning at the opening of business 15 days
before any selection of any such senior debt securities to be redeemed and
ending, in the case of registered securities, at the close of business on
the day of mailing of the
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relevant notice of redemption and, in the case of bearer securities, the
first publication date of such notice, or if the senior debt securities of
such series are also issuable as registered securities and there is no
publication, at the close of business on the day of mailing of such notice;
. in the case of registered securities, register the transfer of or exchange
any senior debt securities so selected for redemption, in whole or in part,
except the unredeemed portion of any such registered security being redeemed
in part; or
. in the case of bearer securities, exchange any senior debt securities so
selected for redemption, except to exchange such bearer security for a
registered security that is immediately surrendered for redemption.
GLOBAL SECURITIES
The senior debt securities of each series may be issued in whole or in part in
global form. A senior debt security in global form will be deposited with, or
on behalf of, a depositary, which will be named in an applicable prospectus
supplement. A global security may be issued in either registered or bearer form
and in either temporary or definitive form. A global senior debt security may
not be transferred, except as a whole, among the depositary for such senior
debt security and/or its nominees and/or successors. If any senior debt
securities of a series are issuable as global securities, the applicable
prospectus supplement will describe any circumstances when beneficial owners of
interest in any such global security may exchange such interests for definitive
senior debt securities of such series and of like tenor and principal amount in
any authorized form and denomination, the manner of payment of principal of and
interest, if any, on any such global senior debt security and the specific
terms of the depositary arrangement with respect to any such global senior debt
security.
DISCHARGE
Unless otherwise indicated in an applicable prospectus supplement, Occidental
may terminate at any time its obligations under the Senior Indenture with
respect to any series of senior debt securities by (1)(a) delivering all of the
outstanding securities of that series to the Senior Indenture Trustee to be
cancelled or (b) depositing with the Senior Indenture Trustee funds or non-
callable United States government obligations sufficient to pay all remaining
principal and interest on the series of senior debt securities and (2)
complying with certain other provisions of the Senior Indenture.
If Occidental elects to satisfy its obligations by depositing United States
obligations as described above ("discharge"), such election under present law
is likely to be treated as a redemption of the senior debt securities of that
series prior to maturity in exchange for the property deposited in trust. If
so, each holder would generally recognize, at the time of discharge, gain or
loss for United States federal income tax purposes measured by the difference
between (1) the sum of (a) the amount of any cash and (b) the fair market value
of any property deposited in trust deemed received by the holder (unless
attributable to accrued interest) and (2) the holder's tax basis in the senior
debt securities deemed surrendered. After the discharge, each holder would be
treated as if it held an undivided interest in the cash (or investments made
therewith) and the property held in trust. Each holder would generally be
subject to tax liability in respect of interest income and original issue
discount, if applicable, thereon and would recognize any gain or loss upon any
disposition, including redemption, of the assets held in trust. Although tax
might be owed, the holder of a discharged
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senior debt security would not receive cash (except for current payments of
interest on such senior debt security) until the maturity or earlier redemption
of such senior debt security. Such tax treatment could affect the purchase
price that a holder would receive upon the sale of the senior debt securities.
INFORMATION CONCERNING THE SENIOR INDENTURE TRUSTEE
The Senior Indenture Trustee, other than during the occurrence and continuance
of an event of default under the Senior Indenture, undertakes to perform only
such duties as are specifically set forth in the Senior Indenture and, upon an
event of default under the Senior Indenture, must use the same degree of care
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the Senior Indenture Trustee is under no
obligation to exercise any of the powers given it by the Senior Indenture at
the request of any holder of senior debt securities unless it is offered
reasonable security and indemnity against the costs, expenses and liabilities
that it might incur. The Senior Indenture Trustee is not required to spend or
risk its own money or otherwise become financially liable while performing its
duties unless it reasonably believes that it will be repaid or receive adequate
indemnity.
The Bank of New York is a participating lender under one of Occidental's
revolving credit agreements and provides commercial banking services to
Occidental and its affiliates. The Bank of New York is the Senior Indenture
Trustee and will also act as the Subordinated Indenture Trustee, the Property
Trustee and the Preferred Securities Guarantee Trustee. In addition, an
affiliate of The Bank of New York will act as the Delaware Trustee under each
trust. However, if The Bank of New York acquires any conflicting interest when
an event of default is pending, it must (with certain exceptions) eliminate
such conflict or resign.
PAYMENT AND PAYMENT AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment of
the interest on any senior debt securities (other than bearer securities) on
any interest payment date will be made to the person in whose name such debt
securities (or one or more predecessor securities) are registered at the close
of business on the regular record date for such interest.
Principal of and any premium and interest on the senior debt securities (other
than bearer securities) of a particular series will be payable at the office of
the paying agents designated by Occidental, except that, unless otherwise
indicated in the applicable prospectus supplement, interest payments may be
made by wire transfer or by check mailed to the holder. Unless otherwise
indicated in such prospectus supplement, the corporate trust office of the
Senior Indenture Trustee in The City of New York will be designated as sole
paying agent for payments with respect to senior debt securities of each
series. Any other paying agents initially designated by Occidental for the
senior debt securities of a particular series will be named in the applicable
prospectus supplement. Occidental will be required to maintain a paying agent
in each place of payment for the senior debt securities of a particular series.
Unless otherwise indicated in an applicable prospectus supplement, interest
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
Unless otherwise indicated in an applicable prospectus supplement, payment of
principal of and interest, if any, on bearer securities will be made, subject
to any applicable laws and regulations, at the offices of a paying agent
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outside the United States as Occidental may designate, or by check mailed to
any address or by transfer to an account maintained by the payee outside the
United States. Unless otherwise indicated in an applicable prospectus
supplement, any payment of an installment of interest on any bearer security
will be made only if the coupon relating to the interest installment is
surrendered.
All moneys paid by Occidental to a paying agent or the Senior Indenture Trustee
for the payment of the principal of or any premium or interest on any senior
debt security which remain unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be repaid to
Occidental, and the holder of the security thereafter may look only to
Occidental for payment thereof.
GOVERNING LAW
The Senior Indenture and senior debt securities will be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act shall be applicable.
DESCRIPTION OF SUBORDINATED DEBT SECURITIES
GENERAL
Occidental may sell one or more series of subordinated debt securities pursuant
to this prospectus, including one series to each trust.
Below is a description of certain general terms of the subordinated debt
securities. The description does not purport to be complete and is subject to
and qualified in its entirety by reference to the Subordinated Indenture. The
particular terms of a series of subordinated debt securities will be described
in a prospectus supplement.
Each series of subordinated debt securities will be unsecured and will be
subordinate and junior in priority of payment to certain of Occidental's other
indebtedness to the extent described in a prospectus supplement. The
Subordinated Indenture does not limit the amount of subordinated debt
securities which Occidental may issue, nor does it limit Occidental or its
subsidiaries from issuing any other secured or unsecured debt.
Occidental will issue the subordinated debt securities under the Subordinated
Indenture. The Subordinated Indenture will be qualified under the Trust
Indenture Act. The form of Subordinated Indenture is filed as an exhibit to the
registration statement which includes this prospectus.
Each prospectus supplement will describe the following terms relating to a
series of subordinated debt securities, as follows:
. the title;
. any limit on the amount that may be issued;
. whether or not such series of subordinated debt securities will be issued as
registered securities, bearer securities or both;
. the price at which such series of subordinated debt securities will be
issued, which may be at a discount;
. whether or not such series of subordinated debt securities will be issued in
global form, the terms and who the depositary will be;
. the maturity date(s);
. the person to whom any interest will be payable on any registered security,
if other than the person in whose name such security is registered at the
close of business on the regular record date;
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. the annual interest rate(s), if any, (which may be fixed or variable) or the
method for determining the rate(s) and the date(s) interest will begin to
accrue, the date(s) interest will be payable and the regular record date(s)
for interest payment date(s) or the method for determining such date(s);
. the place(s) where payments shall be payable, registered securities may be
surrendered for registration of transfer, securities may be surrendered for
exchange, and notices and demands to or upon Occidental may be served;
. the period(s) within which, and the price(s) at which, such series of
subordinated debt securities may, pursuant to any optional or mandatory
redemption provisions, be redeemed, in whole or in part, and other related
terms and provisions;
. any mandatory or optional sinking fund provisions or any provisions for
remarketing the securities and other related terms and provisions;
. the denominations in which such series of subordinated debt securities will
be issued, if other than denominations of $1,000 in the case of registered
securities and any integral multiple thereof, and in the case of bearer
securities, if other than denominations of $5,000 and $100,000;
. the currency or currencies, including composite currencies or currency
units, in which such series of subordinated debt securities may be
denominated or in which payment of the principal of and interest, if any, on
such series of subordinated debt securities shall be payable, if other than
the currency of the United States of America, and, if so, whether such
series of subordinated debt securities may be satisfied and discharged other
than as provided in Article Four of the Subordinated Indenture;
. if the amounts of payments of principal of and interest, if any, on such
series of subordinated debt securities are to be determined with reference
to an index, formula or other method, or based on a coin or currency other
than that in which such series of subordinated debt securities are stated to
be payable, the manner in which such amounts shall be determined and the
calculation agent, if any, with respect thereto;
. if other than the principal amount thereof, the portion of the principal
amount of such series of subordinated debt securities that will be payable
upon declaration of acceleration of the maturity thereof pursuant to an
event of default;
. if other than as defined in the Subordinated Indenture, the meaning of
"Business Day" when used with respect to such series of subordinated debt
securities;
. if such series of subordinated debt securities may be issued or delivered
(whether upon original issuance or upon exchange of a temporary security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in the
Subordinated Indenture, the forms and terms of such certificates, documents
or conditions;
. the right, if any, to extend the interest payment periods and the duration
of the extensions;
. the terms, if any, pursuant to which any series of subordinated debt
securities will be subordinate to any of Occidental's debt;
. any addition to, or modification or deletion of, any event of default,
covenant of Occidental or other term or provision
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specified in the Subordinated Indenture with respect to such series of
subordinated debt securities; and
. any other terms (which terms may be inconsistent with the Subordinated
Indenture).
CONSOLIDATION, MERGER OR SALE
The Subordinated Indenture generally permits Occidental to merge or
consolidate, or sell, convey, transfer or otherwise dispose of its assets as
an entirety or substantially as an entirety, provided that no event of default
would occur as a result of such transaction. However, any successor or
acquiror of such assets must assume all of the obligations of Occidental under
the Subordinated Indenture and the subordinated debt securities and be
organized and existing under U.S. laws.
EVENTS OF DEFAULT UNDER THE SUBORDINATED INDENTURE
The following are events of default under the Subordinated Indenture with
respect to any series of subordinated debt securities issued:
. failure to pay interest when due and such failure continues for 30 days and
the time for payment has not been extended or deferred;
. failure to pay the principal (or premium, if any) when due;
. failure to observe or perform any other covenant contained in the
subordinated debt securities or the Subordinated Indenture (other than a
covenant specifically benefitting only another series of subordinated debt
securities), and such failure continues for 90 days after Occidental
receives notice from the Subordinated Indenture Trustee or holders of at
least 25% in aggregate principal amount of the outstanding subordinated
debt securities of that series;
. certain events of bankruptcy, insolvency or reorganization of Occidental;
. if such series of subordinated debt securities are held by a trust, the
voluntary or involuntary dissolution, winding up or termination of the
trust that owns the series of subordinated debt securities, except in
connection with:
(1) the distribution of such subordinated debt securities to holders of
preferred and common securities of such trust;
(2) the redemption of all of the preferred and common securities of such
trust; or
(3) mergers, consolidations or amalgamations permitted by the Declaration
of such trust; and
. any other event of default specified in the prospectus supplement relating
to such series of subordinated debt securities.
If an event of default with respect to subordinated debt securities of any
series occurs and is continuing, the Subordinated Indenture Trustee or the
holders of at least 25% in aggregate principal amount of the outstanding
subordinated debt securities of that series, by notice in writing to
Occidental (and to the Subordinated Indenture Trustee if notice is given by
such holders), may declare the principal of (or if such subordinated debt
securities are discount securities, the portion of the principal amount as
specified in the applicable prospectus supplement), premium, if any, and
accrued interest, if any, due and payable immediately.
The holders of a majority in aggregate principal amount of the outstanding
subordinated debt securities of an affected series (or if such subordinated
debt securities are held by a trust, the holders of at least a majority in
aggregate
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liquidation amount of the trust's preferred securities) may waive any past
default or event of default with respect to such series and its consequences,
except defaults or events of default regarding:
. payment of principal or interest; or
. covenants that cannot be modified or amended without the consent of each
holder of any outstanding subordinated debt securities affected (as
described under "--Modification of Subordinated Indenture; Waiver" below).
Any such waiver shall cure such default or event of default.
If the subordinated debt securities of any series are held by a trust, and a
Declaration Event of Default (as defined under "Description of Preferred
Securities--Declaration Events of Default" below) has occurred and is
attributable to the failure of Occidental to pay principal, premium, if any, or
interest on, such subordinated debt securities, then each holder of the
preferred securities of such trust may sue Occidental, or seek other remedies
to force payment to such holder of the principal of, premium, if any, or
interest on, such subordinated debt securities having a principal amount equal
to the aggregate liquidation amount of the preferred securities held by such
holder.
Subject to the terms of the Subordinated Indenture, if an event of default
under the Subordinated Indenture shall occur and be continuing, the
Subordinated Indenture Trustee will be under no obligation to exercise any of
its rights or powers under the Subordinated Indenture at the request or
direction of any of the holders of the applicable series of subordinated debt
securities, unless such holders have offered the Subordinated Indenture Trustee
reasonable security or indemnity. The holders of a majority in principal amount
of the outstanding subordinated debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Subordinated Indenture Trustee, or exercising any trust
or power conferred on the Subordinated Indenture Trustee, with respect to the
subordinated debt securities of that series, provided that:
. the direction given to the Subordinated Indenture Trustee is not in conflict
with any law or the Subordinated Indenture;
. the Subordinated Indenture Trustee may take any other action deemed proper
by it which is not inconsistent with such direction; and
. the Subordinated Indenture Trustee has not determined that the action would
be unjustly prejudicial to the holders not involved in the proceeding.
A holder of the subordinated debt securities of any series will have the right
to institute a proceeding under the Subordinated Indenture or to appoint a
receiver or trustee, or to seek other remedies only if:
. the holder has given written notice to the Subordinated Indenture Trustee of
a continuing event of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the outstanding
subordinated debt securities of that series have made written request to,
and such holders have offered reasonable indemnity to, the Subordinated
Indenture Trustee to institute such proceedings as trustee; and
. the Subordinated Indenture Trustee does not institute such proceeding, and
does not receive from the holders of a majority in aggregate principal
amount of the outstanding subordinated debt securities of
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that series other conflicting directions, within 60 days after such notice,
request and offer.
These limitations do not apply to a suit instituted by a holder of subordinated
debt securities if Occidental defaults in the payment of the principal,
premium, if any, or interest on, the subordinated debt securities.
Occidental will periodically file statements with the Subordinated Indenture
Trustee regarding its compliance with the conditions and covenants in the
Subordinated Indenture.
MODIFICATION OF SUBORDINATED INDENTURE; WAIVER
Occidental and the Subordinated Indenture Trustee may change the Subordinated
Indenture without the consent of any holders with respect to certain matters,
including:
. evidencing the succession of another person to Occidental and the assumption
by it of the covenants of Occidental in the Subordinated Indenture and the
securities of such series;
. adding to the covenants, agreements and obligations of Occidental for the
benefit of the holders of such series of subordinated debt securities, or to
surrender any right or power the Subordinated Indenture confers upon
Occidental;
. evidencing and providing for the acceptance of appointment under the
Subordinated Indenture of a successor Subordinated Indenture Trustee with
respect to the securities of one or more series and to add to or change any
provision of the Subordinated Indenture as shall be necessary to provide for
or facilitate the administration of the trusts by more than one Subordinated
Indenture Trustee;
. curing any ambiguity or correcting any inconsistency in the Subordinated
Indenture; and, provided, that no such action shall adversely affect the
interests of the holders of such subordinated debt securities;
. adding, changing or eliminating any provisions of the Subordinated Indenture
(which addition, change or elimination may apply to one or more series of
subordinated debt securities), provided that any such addition, change or
elimination neither (a) applies to any security of any series created prior
to the execution of such supplemental indenture that is entitled to the
benefit of such provision nor (b) modifies the rights of holders of any such
security with respect to such provisions;
. securing the securities; or
. changing anything else that does not adversely affect the interests of any
holder of subordinated debt securities.
In addition, under the Subordinated Indenture, the rights of holders of a
series of subordinated debt securities may be changed by Occidental and the
Subordinated Indenture Trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding subordinated
debt securities of each series that is affected. However, the following
changes, among other things, may only be made with the consent of each holder
of any outstanding subordinated debt securities affected:
. changing the stated maturity of such subordinated debt securities;
. reducing the principal amount of a discount security payable upon
declaration of acceleration;
. reducing the principal amount, reducing the rate of or extending the time of
payment of
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interest, or reducing any premium payable upon the redemption of any such
subordinated debt securities;
. changing the place or currency of payment of principal or interest, if any,
on any such subordinated debt securities;
. impairing the right to institute suit for the enforcement of any payment on
or with respect to any such subordinated debt securities; and
. modifying any of the foregoing requirements or reducing the percentage of
subordinated debt securities, the holders of which are required to consent
to any amendment or waiver of any covenant or past default.
If the consent of the Property Trustee of a trust, as the sole holder of
subordinated debt securities held by the trust, is required to consent to any
amendment, modification or termination of the Subordinated Indenture, the
Property Trustee will request directions from the holders of the preferred
securities of the applicable trust.
FORM, EXCHANGE, AND TRANSFER
The subordinated debt securities of each series may be issued as registered
securities, as bearer securities (with or without coupons) or both. Unless
otherwise specified in the applicable prospectus supplement, registered
securities will be issued in denominations of $1,000 and any integral multiple
thereof and bearer securities will be issued in denominations of $5,000 and
$100,000. Subject to the terms of the Subordinated Indenture and the
limitations applicable to global securities described in the applicable
prospectus supplement, registered securities will be exchangeable for other
registered securities of the same series, in any authorized denomination and
of like tenor and aggregate principal amount.
Subject to the terms of the Subordinated Indenture and the limitations
applicable to global securities set forth in the applicable prospectus
supplement, subordinated debt securities issued as registered securities may
be presented for exchange or for registration of transfer (duly endorsed or
with the form of transfer duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by Occidental for
such purpose. Bearer securities will not be issued in exchange for registered
securities. Unless otherwise provided in the subordinated debt securities to
be transferred or exchanged, no service charge will be made for any
registration of transfer or exchange, but Occidental may require payment of
any taxes or other governmental charges. Occidental has appointed the
Subordinated Indenture Trustee as Security Registrar. Any transfer agent (in
addition to the Security Registrar) initially designated by Occidental for any
subordinated debt securities will be named in the applicable prospectus
supplement. Occidental may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the
office through which any transfer agent acts, except that Occidental will be
required to maintain a transfer agent in each place of payment for the
subordinated debt securities of each series.
If the subordinated debt securities of any series are to be redeemed,
Occidental will not be required to:
. issue, register the transfer of, or exchange any subordinated debt
securities of, that series during a period beginning at the
opening of business 15 days before any selection of subordinated debt
securities of such series for redemption and ending, in the case of
registered securities, at the close of business on the day of mailing of
the relevant notice of redemption and, in the case of bearer securities,
the first publication date of such notice, or if the
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subordinated debt securities of such series are also issuable as registered
securities and there is no publication, at the close of business on the day
of mailing of such notice;
. in the case of registered securities, register the transfer of or exchange
any subordinated debt securities so selected for redemption, in whole or in
part, except the unredeemed portion of any such registered security being
redeemed in part; or
. in the case of bearer securities, exchange any subordinated debt securities
so selected for redemption, except to exchange such bearer security for a
registered security that is immediately surrendered for redemption.
GLOBAL SECURITIES
The subordinated debt securities of each series may be issued in whole or in
part in global form. A subordinated debt security in global form will be
deposited with, or on behalf of, a depositary, which will be named in an
applicable prospectus supplement. A global security may be issued in either
registered or bearer form and in either temporary or definitive form. A global
subordinated debt security may not be transferred, except as a whole among the
depositary for such subordinated debt securities and/or its nominees and/or
successors. If any subordinated debt securities of a series are issuable as
global securities, the applicable prospectus supplement will describe any
circumstances when beneficial owners of interests in any such global security
may exchange such interests for definitive subordinated debt securities of such
series and of like tenor and principal amount in any authorized form and
denomination, the manner of payment of principal of and interest, if any, on
any such global subordinated debt security and the specific terms of the
depositary arrangement with respect to any such global subordinated debt
security.
DISCHARGE
Unless otherwise indicated in an applicable prospectus supplement, Occidental
may terminate at any time its obligations under the Subordinated Indenture with
respect to any series of subordinated debt securities by (1)(a) delivering all
of the outstanding securities of that series to the Subordinated Indenture
Trustee to be cancelled or (b) depositing with the Subordinated Indenture
Trustee funds or non-callable United States government obligations sufficient
to pay all remaining principal and interest on the series of subordinated debt
securities and (2) complying with certain other provisions of the Subordinated
Indenture.
If Occidental elects to satisfy its obligations by depositing United States
obligations as described above ("discharge"), such election under present law
is likely to be treated as a redemption of the subordinated debt securities of
that series prior to maturity in exchange for the property deposited in trust.
If so, each holder would generally recognize, at the time of discharge, gain or
loss for United States federal income tax purposes measured by the difference
between (1) the sum of (a) the amount of any cash and (b) the fair market value
of any property deposited in trust deemed received by the holder (unless
attributable to accrued interest) and (2) the holder's tax basis in the
subordinated debt securities deemed surrendered. After the discharge, each
holder would be treated as if it held an undivided interest in the cash (or
investments made therewith) and the property held in trust. Each holder would
generally be subject to tax liability in respect of interest income and
original issue discount, if applicable, thereon and would recognize any gain or
loss upon any disposition, including redemption, of the assets held in trust.
Although tax might be owed, the holder of a discharged subordinated debt
security would
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not receive cash (except for current payments of interest on such subordinated
debt security) until the maturity or earlier redemption of such subordinated
debt security. Such tax treatment could affect the purchase price that a holder
would receive upon the sale of the subordinated debt securities.
INFORMATION CONCERNING THE SUBORDINATED INDENTURE TRUSTEE
The Subordinated Indenture Trustee, other than during the occurrence and
continuance of an event of default under the Subordinated Indenture, undertakes
to perform only such duties as are specifically set forth in the Subordinated
Indenture and, upon an event of default under the Subordinated Indenture, must
use the same degree of care as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Subordinated
Indenture Trustee is under no obligation to exercise any of the powers given it
by the Subordinated Indenture at the request of any holder of subordinated debt
securities unless it is offered reasonable security and indemnity by such
holder against the costs, expenses and liabilities that it might incur. The
Subordinated Indenture Trustee is not required to spend or risk its own money
or otherwise become financially liable while performing its duties unless it
reasonably believes that it will be repaid or receive adequate indemnity.
The Bank of New York is a participating lender under one of Occidental's
revolving credit agreements and provides commercial banking services to
Occidental and its affiliates. The Bank of New York is the Senior Indenture
Trustee and will also act as the Subordinated Indenture Trustee, the Property
Trustee and the Preferred Securities Guarantee Trustee. In addition, an
affiliate of The Bank of New York will act as the Delaware Trustee under each
trust. However, if The Bank of New York acquires any conflicting interest when
an event of default is pending, it must (with certain exceptions) eliminate
such conflict or resign.
PAYMENT AND PAYMENT AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment of
the interest on any subordinated debt securities (other than bearer securities)
on any interest payment date will be made to the person in whose name such
subordinated debt securities (or one or more predecessor securities) are
registered at the close of business on the regular record date for such
interest.
Principal of and any premium and interest on the subordinated debt securities
(other than bearer securities) of a particular series will be payable at the
office of the paying agents designated by Occidental, except that, unless
otherwise indicated in the applicable prospectus supplement, interest payments
may be made by wire transfer or by check mailed to the holder. Unless otherwise
indicated in such prospectus supplement, the corporate trust office of the
Subordinated Indenture Trustee in The City of New York will be designated as
sole paying agent for payments with respect to subordinated debt securities of
each series. Any other paying agents initially designated by Occidental for the
subordinated debt securities of a particular series will be named in the
applicable prospectus supplement. Occidental will be required to maintain a
paying agent in each place of payment for the subordinated debt securities of a
particular series.
Unless otherwise indicated in the applicable prospectus supplement, interest
will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
Unless otherwise indicated in an applicable prospectus supplement, payment of
principal of and interest, if any, on bearer securities will be
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made, subject to any applicable laws and regulations, at the offices of a
paying agent outside the United States as Occidental may designate, or by check
mailed to any address or by transfer to an account maintained by the payee
outside the United States. Unless otherwise indicated in an applicable
prospectus supplement, any payment of an installment of interest on any bearer
security will be made only if the coupon relating to the interest installment
is surrendered.
All moneys paid by Occidental to a paying agent or the Subordinated Indenture
Trustee for the payment of the principal of or any premium or interest on any
subordinated debt securities which remain unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to Occidental, and the holder of the security thereafter may look only
to Occidental for payment thereof.
GOVERNING LAW
The Subordinated Indenture and subordinated debt securities will be governed by
and construed in accordance with the laws of the State of New York except to
the extent that the Trust Indenture Act shall be applicable.
DESCRIPTION OF PREFERRED SECURITIES
GENERAL
Each Declaration authorizes the Regular Trustees to issue on behalf of each
trust one series of preferred securities which will have the terms described in
a prospectus supplement. The proceeds from the sale of a trust's preferred and
common securities will be used by such trust to purchase a series of
subordinated debt securities issued by Occidental. The subordinated debt
securities will be held in trust by the Property Trustee for the benefit of the
holders of such preferred and common securities.
Under each Preferred Securities Guarantee, Occidental will agree to make
payments of distributions and payments on redemption or liquidation with
respect to a trust's preferred securities, but only to the extent such trust
has funds available to make those payments and has not made such payments. See
"Description of the Preferred Securities Guarantees."
The assets of a trust available for distribution to the holders of its
preferred securities will be limited to payments from Occidental under the
series of subordinated debt securities held by such trust. If Occidental fails
to make a payment on such subordinated debt securities, such trust will not
have sufficient funds to make related payments, including distributions, on its
preferred securities.
Each Preferred Securities Guarantee, when taken together with Occidental's
obligations under the related series of subordinated debt securities, the
Subordinated Indenture and the related Declaration, will provide a full and
unconditional guarantee of amounts due on the preferred securities issued by a
trust.
Each Declaration will be qualified as an indenture under the Trust Indenture
Act. Each Property Trustee will act as indenture trustee for the preferred
securities to be issued by the applicable trust, in order to comply with the
provisions of the Trust Indenture Act.
Each series of preferred securities will have the terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as described in the
relevant Declaration or made part of such Declaration by the Trust Indenture
Act or the Delaware Business Trust Act. The terms of such preferred
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securities will mirror the terms of the subordinated debt securities held by
the trust.
The prospectus supplement relating to the preferred securities of a trust will
describe the specific terms of such preferred securities, including:
. the name of such preferred securities;
. the dollar amount and number of securities issued;
. any provision relating to deferral of distribution payments;
. the annual distribution rate(s) (or method of determining such rate(s)), the
payment date(s) and the record dates used to determine the holders who are
to receive distributions;
. the date from which distributions shall be cumulative;
. the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which such preferred securities
shall be purchased or redeemed, in whole or in part;
. the terms and conditions, if any, upon which the applicable series of
subordinated debt securities may be distributed to holders of such preferred
securities;
. the voting rights, if any, of holders of such preferred securities;
. any securities exchange on which such preferred securities will be listed;
. whether such preferred securities are to be issued in book-entry form and
represented by one or more global certificates and, if so, the depository
for such global certificates and the specific terms of the depositary
arrangements; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of such preferred securities.
Each prospectus supplement will describe certain United States federal income
tax considerations applicable to the purchase, holding and disposition of the
series of preferred securities covered by such prospectus supplement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Unless otherwise specified in an applicable prospectus supplement, each
Declaration states that the related trust shall be dissolved:
. on the expiration of the term of such trust;
. upon the bankruptcy of Occidental;
. upon the filing of a certificate of dissolution or its equivalent with
respect to Occidental;
. upon the filing of a certificate of cancellation with respect to such trust
after obtaining the consent of at least a majority in liquidation amount of
the preferred and common securities of such trust, voting together as a
single class;
. 90 days after the revocation of the charter of Occidental (but only if the
charter is not reinstated during that 90-day period);
. upon the distribution of the related subordinated debt securities directly
to the holders of the preferred and common securities of such trust;
. upon the redemption of all of the common and preferred securities of such
trust; or
. upon entry of a court order for the dissolution of Occidental, or such
trust.
Unless otherwise specified in an applicable prospectus supplement, in the event
of a dissolution, after the trust pays all amounts owed to creditors, the
holders of the preferred and common securities will be entitled to receive:
. cash equal to the aggregate liquidation amount of each preferred and common
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security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions to the date of payment; unless
. subordinated debt securities in an aggregate principal amount equal to the
aggregate liquidation amount of the preferred and common securities are
distributed to the holders of the preferred and common securities.
If such trust cannot pay the full amount due on its preferred and common
securities because insufficient assets are available for payment, then the
amounts payable by the trust on its preferred and common securities shall be
paid pro rata. However, if an event of default under the related Declaration
has occurred, the total amounts due on such preferred securities will be paid
before any distribution on such common securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Subordinated Indenture relating to a series of
subordinated debt securities is an event of default under the Declaration of
the trust that owns these subordinated debt securities (a "Declaration Event of
Default"). See "Description of the subordinated debt securities -- Events of
Default Under the Subordinated Indenture."
Occidental and the Regular Trustees of a trust must file annually with the
Property Trustee for such trust a certificate stating whether or not they are
in compliance with all the applicable conditions and covenants under the
related Declaration.
Upon the occurrence of a Declaration Event of Default, the Property Trustee of
the applicable trust, as the sole holder of the subordinated debt securities
held by such trust, will have the right under the Subordinated Indenture to
declare the principal of, premium, if any, and interest on such subordinated
debt securities to be immediately due and payable.
If a Property Trustee fails to enforce its rights under the related Declaration
or the Subordinated Indenture to the fullest extent permitted by law and
subject to the terms of such Declaration and the Subordinated Indenture, any
holder of the preferred securities issued by the related trust may sue
Occidental, or seek other remedies, to enforce the Property Trustee's rights
under the Declaration or the Subordinated Indenture without first instituting a
legal proceeding against such Property Trustee or any other person.
If Occidental fails to pay principal, premium, if any, or interest on a series
of subordinated debt securities when payable, then a holder of the related
preferred securities issued by a trust which owns such notes may directly sue
Occidental or seek other remedies, to collect its pro rata share of payments
owed.
REMOVAL AND REPLACEMENT OF TRUSTEES
Only the holder of a trust's common securities has the right to remove or
replace the trustees of such trust. The resignation or removal of any trustee
and the appointment of a successor trustee shall be effective only on the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration for such trust.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS OF THE TRUSTS
A trust may not consolidate, amalgamate, merge with or into, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to any other corporation or other body ("Merger Event"), except as
described below. A trust may, with the consent of a majority of its Regular
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Trustees and without the consent of the holders of its preferred and common
securities, consolidate, amalgamate, merge with or into, or be replaced by
another trust, if:
. the successor entity either
(1) assumes all of the obligations of the trust relating to its preferred
and common securities; or
(2) substitutes for such trust's preferred and common securities other
securities substantially similar to such preferred and common
securities ("successor securities"), so long as the successor
securities rank the same as such preferred and common securities for
distributions and payments upon liquidation, redemption and otherwise;
. Occidental acknowledges a trustee of such successor entity who has the same
powers and duties as the Property Trustee of such trust as the holder of the
particular series of subordinated debt securities;
. the preferred securities are listed, or any successor securities will be
listed, upon notice of issuance, on the same national securities exchange or
other organization that the preferred securities are then listed;
. the Merger Event does not cause its preferred securities or successor
securities to be downgraded by any national rating agency;
. the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of its preferred and common securities or
successor securities in any material way (other than with respect to any
dilution of the holders' interest in the new entity);
. the successor entity has a purpose identical to that of the trust;
. prior to the Merger Event, Occidental has received an opinion of counsel
from a law firm stating that
(1) such Merger Event does not adversely affect the rights of the holders
of the trust's preferred securities or any successor securities in any
material way (other than with respect to any dilution of the holders'
interest in the new entity); and
(2) following the Merger Event, neither the trust nor the successor entity
will be required to register as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company
Act"); and
. Occidental guarantees the obligations of the successor entity under the
successor securities in the same manner as in the applicable Preferred
Securities Guarantee and the guarantee of the common securities for such
trust.
In addition, unless all of the holders of the preferred and common securities
approve otherwise, a trust shall not consolidate, amalgamate, merge with or
into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such transaction
would cause the trust or the successor entity to be classified other than as a
grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATIONS
The holders of preferred securities have no voting rights except as discussed
under "-- Mergers, Consolidations or Amalgamations of the Trust" and
"Description of the Preferred Securities Guarantees--Amendments and
Assignment," and as otherwise required by law and the Declaration for such
trust.
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A Declaration may be amended if approved by a majority of the Regular Trustees
of the applicable trust. However, if any proposed amendment provides for, or
such Regular Trustees otherwise propose to effect:
(1) any action that would adversely affect the powers, preferences or
special rights of the trust's preferred and common securities, whether
by way of amendment to such Declaration or otherwise; or
(2) the dissolution, winding-up or termination of such trust other than
pursuant to the terms of its Declaration,
then the holders of the trust's preferred and common securities as a single
class will be entitled to vote on such amendment or proposal. In that case, the
amendment or proposal will be effective only if approved by at least a majority
in liquidation amount of the preferred and common securities affected by such
amendment or proposal.
If any amendment or proposal referred to in clause (1) above would adversely
affect only the preferred securities or the common securities of a trust, then
only the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal will only be effective with the approval of at
least a majority in liquidation amount of such affected class.
No amendment may be made to a Declaration if such amendment would:
. cause the related trust to be characterized as other than a grantor trust
for United States federal income tax purposes;
. reduce or otherwise adversely affect the powers of the Property Trustee; or
. cause the related trust to be deemed to be an "investment company" which is
required to be registered under the Investment Company Act.
The holders of a majority in aggregate liquidation amount of the preferred
securities of each trust have the right to:
. direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee of the trust; or
. direct the exercise of any trust or power conferred upon such Property
Trustee under that trust's Declaration, including the right to direct the
Property Trustee, as the holder of a series of subordinated debt securities,
to
(1) exercise the remedies available under the Subordinated Indenture with
respect to such subordinated debt securities;
(2) waive any event of default under the Subordinated Indenture that is
waivable; or
(3) cancel an acceleration of the principal of the subordinated debt
securities.
However, if the Subordinated Indenture requires the consent of the holders of
more than a majority in aggregate principal amount of a series of subordinated
debt securities (a "super- majority"), then the Property Trustee for such
series must get approval of the holders of a super-majority in liquidation
amount of such series of preferred securities.
In addition, before taking any of the foregoing actions, the Property Trustee
must obtain an opinion of counsel stating that, as a result of such action, the
trust will continue to be classified as a grantor trust for United States
federal income tax purposes.
The Property Trustee of a trust will notify all preferred securities holders of
such trust of any
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notice received from the Subordinated Indenture Trustee with respect to the
subordinated debt securities held by such trust.
As described in each Declaration, the Property Trustee may hold a meeting to
have preferred securities holders vote on a change or have them approve the
change by written consent.
If a vote of preferred securities holders is taken or a consent is obtained,
any preferred securities that are owned by Occidental or any of its affiliates
will, for purposes of the vote or consent, be treated as if they were not
outstanding. This means:
. Occidental and any of its affiliates will not be able to vote on or consent
to matters requiring the vote or consent of holders of preferred securities;
and
. any preferred securities owned by Occidental or any of its affiliates will
not be counted in determining whether the required percentage of votes or
consents has been obtained.
INFORMATION CONCERNING THE PROPERTY TRUSTEES
For matters relating to compliance with the Trust Indenture Act, the Property
Trustee of each trust will have all of the duties and responsibilities of an
indenture trustee under the Trust Indenture Act. Each Property Trustee, other
than during the occurrence and continuance of a Declaration Event of Default
under the applicable trust, undertakes to perform only such duties as are
specifically set forth in the applicable Declaration and, upon a Declaration
Event of Default, must use the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, a Property Trustee is under no obligation to exercise any of
the powers given it by the applicable Declaration at the request of any holder
of preferred securities unless it is offered reasonable security or indemnity
against the costs, expenses and liabilities that it might incur. However, the
holders of the preferred securities will not be required to offer such an
indemnity where the holders, by exercising their voting rights, direct the
Property Trustee to take any action following a Declaration Event of Default.
The Bank of New York is a participating lender under one of Occidental's
revolving credit agreements and provides commercial banking services to
Occidental and its affiliates. The Bank of New York is the Senior Indenture
Trustee and will act as the Subordinated Indenture Trustee, the Property
Trustee and the Preferred Securities Guarantee Trustee. In addition, an
affiliate of The Bank of New York will act as the Delaware Trustee of each of
the trusts. However, if The Bank of New York acquires any conflicting interest
when an event of default is pending, it must (with certain exceptions)
eliminate such conflict or resign.
MISCELLANEOUS
The Regular Trustees of each trust are authorized and directed to conduct the
affairs of and to operate such trust in such a way that
. it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
. it will be classified as a grantor trust for United States federal income
tax purposes; and
. the subordinated debt securities held by it will be treated as indebtedness
of Occidental for United States federal income tax purposes.
Occidental and the Regular Trustees of a trust are authorized to take any
action (so long as it is consistent with applicable law or the
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applicable certificate of trust or Declaration) that Occidental and the Regular
Trustees of such trust determine to be necessary or desirable for such
purposes.
Holders of preferred securities have no preemptive or similar rights.
A trust may not borrow money, issue debt, execute mortgages or pledge any of
its assets.
GOVERNING LAW
Each Declaration and the related preferred securities will be governed by and
construed in accordance with the laws of the State of Delaware.
DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
GENERAL
Occidental will execute a Preferred Securities Guarantee, which benefits the
holders of preferred securities, at the time that a trust issues those
preferred securities. Each Preferred Securities Guarantee will be qualified as
an indenture under the Trust Indenture Act. The Bank of New York will act as
indenture trustee ("Preferred Guarantee Trustee") under each Preferred
Securities Guarantee for the purposes of compliance with the Trust Indenture
Act. The Preferred Guarantee Trustee will hold each Preferred Securities
Guarantee for the benefit of the preferred securities holders of the applicable
trust.
Occidental will irrevocably agree, as described in each Preferred Securities
Guarantee, to pay in full, to the holders of the preferred securities issued by
the applicable trust, the Preferred Securities Guarantee Payments (as defined
below) (except to the extent previously paid), when and as due, regardless of
any defense, right of set-off or counterclaim which such trust may have or
assert. The following payments, to the extent not paid by a trust ("Preferred
Securities Guarantee Payments"), will be covered by the applicable Preferred
Securities Guarantee:
. any accrued and unpaid distributions required to be paid on the applicable
preferred securities, to the extent that the trust has funds available to
make the payment;
. the redemption price, to the extent that the trust has funds available to
make the payment; and
. upon a voluntary or involuntary dissolution and liquidation of the trust
(other than in connection with a distribution of subordinated debt
securities to holders of such preferred securities or the redemption of all
such preferred securities), the lesser of:
(1) the aggregate of the liquidation amount specified in the prospectus
supplement for each preferred security plus all accrued and unpaid
distributions on the preferred security to the date of payment, to the
extent the trust has funds available to make the payment; and
(2) the amount of assets of the trust remaining available for distribution
to holders of its preferred securities upon a dissolution and
liquidation of the trust ("Liquidation Payment").
Occidental's obligation to make a Preferred Securities Guarantee Payment may be
satisfied by directly paying the required amounts to the holders of the
preferred securities or by causing the trust to pay the amounts to the holders.
No single document executed by Occidental relating to the issuance of preferred
securities will provide for its full, irrevocable and unconditional guarantee
of the preferred
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securities. It is only the combined operation of Occidental's obligations under
the applicable Preferred Securities Guarantee, Declaration, Subordinated
Indenture and the subordinated debt securities that has the effect of providing
a full, irrevocable and unconditional guarantee of a trust's obligations under
its preferred securities.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will constitute an unsecured obligation of
Occidental and will rank:
. subordinate and junior in right of payment to all of Occidental's other
liabilities (except for those liabilities made equal or junior by their
terms to any liabilities of Occidental under such Preferred Securities
Guarantee);
. equal with any guarantee now or hereafter issued by Occidental in respect of
the most senior preferred or preference stock now or hereafter issued by
Occidental, and with any guarantee now or hereafter issued by it in respect
of any preferred or preference stock of any of its affiliates; and
. senior to Occidental's common stock.
Each Declaration will require that the holder of preferred securities accept
the subordination provisions and other terms of the Preferred Securities
Guarantee. Each Preferred Securities Guarantee will constitute a guarantee of
payment and not of collection (in other words the holder of the guaranteed
security may sue Occidental, or seek other remedies, to enforce its rights
under the Preferred Securities Guarantee without first suing any other person
or entity). A Preferred Securities Guarantee will not be discharged except by
payment of the Preferred Securities Guarantee Payments in full to the extent
not previously paid or upon distribution to the applicable preferred securities
holders of the corresponding series of subordinated debt securities pursuant to
the appropriate Declaration.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights of
holders of a series of preferred securities in any material respect (in which
case no consent of such holders will be required), a Preferred Securities
Guarantee may be amended only with the prior approval of the holders of at
least a majority in aggregate liquidation amount of such preferred securities
(excluding any such preferred securities held by Occidental or any of its
affiliates). A description of the way to obtain any approval is described under
"Description of the Preferred Securities--Voting Rights; Amendment of
Declarations." All guarantees and agreements contained in a Preferred
Securities Guarantee will be binding on Occidental's successors, assigns,
receivers, trustees and representatives and are for the benefit of the holders
of the applicable preferred securities.
PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee occurs if Occidental
fails to make any of its required payments or perform its obligations under
such Preferred Securities Guarantee.
The holders of at least a majority in aggregate liquidation amount of the
preferred securities relating to each Preferred Securities Guarantee (excluding
any preferred securities held by Occidental or any of its affiliates) will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Preferred Guarantee Trustee relating to such
Preferred Securities Guarantee or to direct the exercise of any trust or power
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given to the Preferred Guarantee Trustee under such Preferred Securities
Guarantee.
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEES
The Preferred Guarantee Trustee under a Preferred Securities Guarantee, other
than during the occurrence and continuance of a default under such Preferred
Securities Guarantee, will perform only the duties that are specifically
described in such Preferred Securities Guarantee. After such a default, the
Preferred Guarantee Trustee will exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, a Preferred Guarantee Trustee is under no
obligation to exercise any of its powers as described in the applicable
Preferred Securities Guarantee at the request of any holder of covered
preferred securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that it might incur.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEES
Each Preferred Securities Guarantee will terminate once the applicable
preferred securities are paid in full or upon distribution of the corresponding
series of subordinated debt securities to the holders of such preferred
securities. Each Preferred Securities Guarantee will continue to be effective
or will be reinstated if at any time any holder of preferred securities issued
by the applicable trust must restore payment of any sums paid under such
preferred securities or such Preferred Securities Guarantee.
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with the laws of the State of New York.
RELATIONSHIP AMONG PREFERRED SECURITIES, PREFERRED SECURITIES GUARANTEES AND
SUBORDINATED DEBT SECURITIES HELD BY EACH TRUST
Payments of distributions and redemption and liquidation payments due on each
series of preferred securities (to the extent the applicable trust has funds
available for the payments) will be guaranteed by Occidental to the extent
described under "Description of the Preferred Securities Guarantees." No single
document executed by Occidental in connection with the issuance of any series
of preferred securities will provide for its full, irrevocable and
unconditional guarantee of such preferred securities. It is only the combined
operation of Occidental's obligations under the applicable Preferred Securities
Guarantee, Declaration, Subordinated Indenture and subordinated debt securities
that has the effect of providing a full, irrevocable and unconditional
guarantee of a trust's obligations under its preferred securities.
As long as Occidental makes payments of interest and other payments when due on
the subordinated debt securities held by a trust, such payments will be
sufficient to cover the payment of distributions and redemption and liquidation
payments due on the preferred securities issued by that trust, primarily
because:
. the aggregate principal amount of the subordinated debt securities will be
equal to the sum of the aggregate liquidation amount of the preferred and
common securities;
. the interest rate and interest and other payment dates on the subordinated
debt securities will match the distribution rate and distribution and other
payment dates for the preferred securities;
. Occidental shall pay for any and all costs, expenses and liabilities of each
trust except
32
<PAGE>
such trust's obligations under its preferred securities (and Occidental has
agreed to guarantee such payment); and
. each Declaration provides that the related trust will not engage in any
activity that is not consistent with the limited purposes of the trust.
If and to the extent that Occidental does not make payments on such
subordinated debt securities, such trust will not have funds available to make
payments of distributions or other amounts due on its preferred securities. In
those circumstances, you will not be able to rely upon the Preferred Securities
Guarantee for payment of these amounts. Instead, you may directly sue
Occidental or seek other remedies to collect your pro rata share of payments
owed. If you sue Occidental to collect payment, then Occidental will assume
your rights as a holder of preferred securities under such trust's Declaration
to the extent Occidental makes a payment to you in any such legal action.
A holder of any preferred security may sue Occidental, or seek other remedies,
to enforce its rights under the applicable Preferred Securities Guarantee
without first suing the applicable Preferred Guarantee Trustee, the trust which
issued the preferred security or any other person or entity.
PLAN OF DISTRIBUTION
Occidental may sell the senior debt securities or subordinated debt securities
and a trust may sell its preferred securities being offered hereby in one or
more of the following ways from time to time:
. to underwriters for resale to the public or to institutional investors;
. directly to institutional investors;
. directly to agents;
. through agents to the public or to institutional investors; or
. if indicated in the prospectus supplement, pursuant to delayed delivery
contracts or by remarketing firms.
The prospectus supplements will set forth the terms of the offering of each
series of securities, including the name or names of any underwriters or
agents, the purchase price of such securities and the proceeds to Occidental or
the applicable trust, as the case may be, from such sale, any underwriting
discounts or agency fees and other items constituting underwriters' or agents'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such securities may be listed.
If underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or prices, which may be changed, or at market or varying prices
determined at the time of sale.
Unless otherwise set forth in a prospectus supplement, the obligations of the
underwriters to purchase any series of securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all of
such series of securities, if any are purchased.
If a dealer is utilized in the sale of securities, Occidental will sell such
securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at
the time of resale.
Securities may also be offered and sold, if so indicated in the prospectus
supplement, in connection with a remarketing upon their purchase, in accordance
with a redemption or repayment pursuant to their terms, or otherwise, by one or
more firms ("remarketing firms")
33
<PAGE>
acting as principals for their own accounts or as agents for Occidental. Any
remarketing firm will be identified and the terms of its agreement, if any,
with Occidental and its compensation will be described in the prospectus
supplement.
Underwriters, agents, dealers and remarketing firms may be entitled under
agreements entered into with Occidental and/or a trust to indemnification by
Occidental and/or such trust against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect
to payments which the underwriters or agents may be required to make in
respect thereof. Underwriters, agents, dealers and remarketing firms may be
customers of, engage in transactions with, or perform services for Occidental
and its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no
established trading market. Any underwriters to whom securities are sold by
Occidental or by the trusts for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The securities may
or may not be listed on a national securities exchange or a foreign securities
exchange.
LEGAL OPINIONS
The validity of the senior debt securities, the subordinated debt securities,
the Preferred Securities Guarantees and certain matters relating thereto will
be passed on for Occidental by Robert E. Sawyer, Esq., Associate General
Counsel of Occidental, and by Skadden, Arps, Slate, Meagher & Flom LLP, Los
Angeles, California, and for any underwriters by Brown & Wood LLP, Los
Angeles, California. Mr. Sawyer beneficially owns, and has rights to acquire
under employee stock options, an aggregate of less than 1% of the outstanding
common stock of Occidental.
EXPERTS
The consolidated financial statements and financial statement schedule of
Occidental and its subsidiaries, for the fiscal year ended December 31, 1997,
included or incorporated by reference in Occidental's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, which are incorporated by
reference in this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the
authority of said film as experts in accounting and auditing in giving said
reports.
The statements of financial position of the U.S. Department of Energy Naval
Petroleum Reserve No. 1 (NPR-1) as of September 30, 1997 and 1996, and the
related statements of operations and changes in net position, and cash flows
for the year then ended, which appears in Occidental's Current Report on Form
8-K dated February 10, 1998 (date of earliest event reported) have been
incorporated by reference herein and in the registration statement in reliance
upon the report dated November 14, 1997 of KPMG Peat Marwick LLP, independent
auditors, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The financial statements of the Lyondell Contributed Business and Equistar
Chemicals, LP which appear in Occidental's Current Report of Form 8-K dated
May 15, 1998 have been incorporated by reference herein and in the
registration statement in reliance on the report dated July 7, 1998 and the
report dated February 16, 1998 of PricewaterhouseCoopers LLP, independent
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
34
<PAGE>
The statements of income and cash flows of the Millennium Contributed Business
which appear in Occidental's Current Report on Form 8-K dated May 15, 1998 have
been incorporated by reference herein and in the registration statement in
reliance on the report dated July 9, 1998 of PricewaterhouseCoopers LLP,
independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
35
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be borne by Occidental in
connection with the offerings described in this Registration Statement.
<TABLE>
<S> <C>
SEC filing fee.................................................. $ 389,200
Printing fees and expenses...................................... 25,000
Accounting fees and expenses.................................... 65,000
Rating agency fees.............................................. 402,750
Legal fees and expenses......................................... 50,000
Trustee fees and expenses....................................... 10,500
Blue sky fees and expenses...................................... 10,000
Miscellaneous................................................... 47,550
----------
Total......................................................... $1,000,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (DGCL) permits the Board
of Directors of Occidental to indemnify any person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with any threatened, pending
or completed action, suit or proceeding in which such person is made a party
by reason of his or her being or having been a director, officer, employee or
agent of Occidental, as the case may be, in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the Securities Act). The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of indemnification
to which a person may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
Occidental's Restated Certificate of Incorporation, as amended, provides for
the indemnification of its directors and officers to the fullest extent
permitted by the DGCL. Occidental has also entered into indemnification
agreements with each director and certain officers providing for additional
indemnification. Additionally, Article VIII of Occidental's By-laws provides
that Occidental shall indemnify directors and officers under certain
circumstances for liabilities and expenses incurred by reason of their
activities in such capacities. In addition, Occidental has insurance policies
that provide liability coverage to directors and officers while acting in such
capacities.
The Declaration of Trust of each trust provides that no Regular Trustee,
affiliate of any Regular Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular
Trustee, or any employee or agent of such trust or its affiliates (each an
Indemnified Person) shall be liable, responsible or accountable in damages or
otherwise to such trust or any employee or agent of the trust or its
affiliates for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on
behalf of such trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by such Declaration or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's gross negligence or willful misconduct with respect to
such acts or omissions.
The Declaration of Trust of each trust also provides that to the fullest
extent permitted by applicable law, Occidental shall indemnify and hold
harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such
II-1
<PAGE>
Indemnified Person in good faith on behalf of such trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by such Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of gross
negligence or willful misconduct with respect to such act or omissions. The
Declaration of each trust further provides that, to the fullest extent
permitted by applicable law, expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by Occidental prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
of an undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not entitled
to be indemnified for the underlying cause of action as authorized by such
Declaration.
The directors and officers of Occidental and the Regular Trustees of each
trust are covered by insurance policies indemnifying against certain
liabilities, including certain liabilities arising under the Securities Act
which might be incurred by them in such capacities.
II-2
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement (Preferred Securities).**
1.2 Form of Underwriting Agreement (Debt Securities) (incorporated by reference
from Exhibit 1.1 to Occidental's Registration Statement on Form S-3 (File No.
333-52053) filed with the Commission on May 7, 1998).
3.1 Certificate of Trust of Oxy Capital Trust I.*
3.2 Certificate of Trust of Oxy Capital Trust II.*
3.3 Certificate of Trust of Oxy Capital Trust III.*
4.1 Declaration of Trust of Oxy Capital Trust I.
4.2 Declaration of Trust of Oxy Capital Trust II.
4.3 Declaration of Trust of Oxy Capital Trust III.
4.4 Form of Amended and Restated Declaration of Trust for each of Oxy Capital Trust
I, Oxy Capital Trust II and Oxy Capital Trust III.
4.5 Indenture (Senior Debt Securities), dated as of April 1, 1998, between
Occidental and The Bank of New York, as Trustee (incorporated by reference
from Exhibit 4 to Occidental's Registration Statement on Form S-3 (File No.
333-52053), filed with the Commission on May 7, 1998).
4.6 Form of Indenture (Subordinated Debt Securities).
4.7 Form of Preferred Security (included in Exhibit 4.4).
4.8 Form of Preferred Securities Guarantee.
5.1 Opinion of Robert E. Sawyer, Esq.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
12.1 Statement regarding the computation of total enterprise ratios of earnings to
fixed charges and earnings to combined fixed charges and preferred stock
dividends.*
23.1 Consent of Robert E. Sawyer, Esq. (included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants (Arthur Andersen LLP).*
23.3 Consent of Independent Public Accountants (KPMG Peat Marwick LLP).*
23.4 Consent of Independent Accountants (PricewaterhouseCoopers LLP).*
23.5 Consent of Independent Accountants (PricewaterhouseCoopers LLP).*
23.6 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24.1 Powers of Attorney.*
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture (Senior Debt
Securities).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture (Subordinated
Debt Securities).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust III.
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust I.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust II.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust III.
</TABLE>
- --------
* Previously filed
** To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(d) Oxy Capital Trust I, Oxy Capital Trust II and Oxy Capital Trust III each
hereby undertakes to provide to the underwriter at the closing specified in
the underwriting agreements, certificates in such denominations and registered
in such names as required by the underwriter to permit prompt delivery to each
purchaser.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Occidental Petroleum
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Los Angeles, State of
California, on January 6, 1999.
OCCIDENTAL PETROLEUM CORPORATION
*
By: _________________________________
Ray R. Irani
Chairman of the Board of
Directors and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on January 6, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman of the Board of Directors and Chief
___________________________________________ Executive Officer
Ray R. Irani
/s/ Anthony R. Leach Executive Vice President and Chief Financial
___________________________________________ Officer
Anthony R. Leach
* Vice President and Controller (Chief
___________________________________________ Accounting Officer)
Samuel P. Dominick, Jr.
* Director
___________________________________________
George O. Nolley
* Director
___________________________________________
Rosemary Tomich
* Director
___________________________________________
J. Roger Hirl
* Director
___________________________________________
John W. Kluge
* Director
___________________________________________
Rodolfo Segovia
* Director
___________________________________________
Edward P. Djerejian
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Director
___________________________________________
Dale R. Laurance
* Director
___________________________________________
Irvin W. Maloney
* Director
___________________________________________
Aziz D. Syriani
* Director
___________________________________________
John E. Feick
* Director
___________________________________________
</TABLE> John S. Chalsty
*By /s/ Donald P. de Brier
Donald P. de Brier
Attorney-in-Fact
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Oxy Capital
Trust I certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California, on
January 6, 1999.
OXY CAPITAL TRUST I
/s/ J. R. Havert
By: _________________________________
J. R. Havert, Regular Trustee
/s/ A. R. Leach
By: _________________________________
A. R. Leach, Regular Trustee
/s/ John R. Zaylor
By: _________________________________
John R. Zaylor, Regular Trustee
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Oxy Capital
Trust II certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California, on
January 6, 1999.
OXY CAPITAL TRUST II
/s/ J. R. Havert
By: _________________________________
J. R. Havert, Regular Trustee
/s/ A. R. Leach
By: _________________________________
A. R. Leach, Regular Trustee
/s/ John R. Zaylor
By: _________________________________
John R. Zaylor, Regular Trustee
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Oxy Capital
Trust III certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this Amendment
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Los Angeles, State of California, on
January 6, 1999.
OXY CAPITAL TRUST III
/s/ J. R. Havert
By: _________________________________
J. R. Havert, Regular Trustee
/s/ A. R. Leach
By: _________________________________
A. R. Leach, Regular Trustee
/s/ John R. Zaylor
By: _________________________________
John R. Zaylor, Regular Trustee
II-9
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement (Preferred Securities).**
1.2 Form of Underwriting Agreement (Debt Securities) (incorporated by reference
from Exhibit 1.1 to Occidental's Registration Statement on Form S-3 (File No.
333-52053) filed with the Commission on May 7, 1998).
3.1 Certificate of Trust of Oxy Capital Trust I.*
3.2 Certificate of Trust of Oxy Capital Trust II.*
3.3 Certificate of Trust of Oxy Capital Trust III.*
4.1 Declaration of Trust of Oxy Capital Trust I.
4.2 Declaration of Trust of Oxy Capital Trust II.
4.3 Declaration of Trust of Oxy Capital Trust III.
4.4 Form of Amended and Restated Declaration of Trust for each of Oxy Capital Trust
I, Oxy Capital Trust II and Oxy Capital Trust III.
4.5 Indenture (Senior Debt Securities), dated as of April 1, 1998, between
Occidental and The Bank of New York, as Trustee (incorporated by reference
from Exhibit 4 to Occidental's Registration Statement on Form S-3 (File No.
333-52053), filed with the Commission on May 7, 1998).
4.6 Form of Indenture (Subordinated Debt Securities).
4.7 Form of Preferred Security (included in Exhibit 4.4).
4.8 Form of Preferred Securities Guarantee.
5.1 Opinion of Robert E. Sawyer, Esq.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
12.1 Statement regarding the computation of total enterprise ratios of earnings to
fixed charges and earnings to combined fixed charges and preferred stock
dividends.*
23.1 Consent of Robert E. Sawyer, Esq. (included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants (Arthur Andersen LLP).*
23.3 Consent of Independent Public Accountants (KPMG Peat Marwick LLP).*
23.4 Consent of Independent Accountants (PricewaterhouseCoopers LLP).*
23.5 Consent of Independent Accountants (PricewaterhouseCoopers LLP).*
23.6 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24.1 Powers of Attorney.*
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture (Senior Debt
Securities).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture (Subordinated
Debt Securities).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Oxy Capital Trust III.
</TABLE>
<PAGE>
<TABLE>
<S> <C>
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust I.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust II.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Preferred Securities
Guarantee--Oxy Capital Trust III.
</TABLE>
- --------
* Previously filed
** To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in the Registration Statement.
<PAGE>
EXHIBIT 4.1
DECLARATION OF TRUST
OF
OXY CAPITAL TRUST I
DECLARATION OF TRUST ("Declaration") dated and effective as of December 16,
1998, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Subordinated Debt Securities (as defined herein) of the
Parent; and
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the preamble
above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and to Exhibits
are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
<PAGE>
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Occidental Petroleum Corporation, a Delaware corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME.
<PAGE>
The Trust created by this Declaration is named "Oxy Capital Trust I." The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 OFFICE.
The address of the principal office of the Trust is 10889 Wilshire
Boulevard, Los Angeles, California 90024. At any time, the Regular Trustees
may designate another principal office.
SECTION 2.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated Debt
Securities, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments or, other than
as permitted herein, pledge any of its assets.
SECTION 2.4 AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre and post-effective amendments thereto (including any
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
<PAGE>
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7 FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III
TRUSTEES
SECTION 3.1 TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be A. R. Leach, J. R. Havert and John R.
Zaylor, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Wilmington, Delaware 19711. The initial
property trustee (the "Property Trustee") shall be The Bank of New York, 101
Barclay Street 21 West, New York, New York 10286.
SECTION 3.2 DELAWARE TRUSTEE AND PROPERTY TRUSTEE
Notwithstanding any other provision of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3 EXECUTION OF DOCUMENTS
(a) Any two Regular Trustees are authorized to execute on behalf of the
Trust the Registration Statement referred to in Section 2.6(a) and any
amendments thereto and any other
<PAGE>
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise
(b) the Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.3 FIDUCIARY DUTY.
<PAGE>
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between Covered
Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable
to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect
<PAGE>
of any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence or willful misconduct with respect to such acts or omissions;
and
(b) to the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5 OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's rights or duties hereunder without such
trustee's prior written consent.
SECTION 5.2 TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust; and
<PAGE>
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event referred to
in Section 5.2(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
SECTION 5.3 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 5.6 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as
of the day and year first above written.
OCCIDENTAL PETROLEUM The Bank of New York (Delaware),
CORPORATION, as Sponsor as Delaware Trustee
By: /s/ J. R. Havert /s/ Walter N. Gitlin
------------------------------------- --------------------------------
Name: J. R. Havert Name: Walter N. Gitlin
Title: Vice President and Treasurer Title: Authorized Signatory
A. R. Leach, as Regular Trustee
/s/ A. R. Leach
- -----------------------------------------
J. R. Havert, as Regular Trustee
/s/ J. R. Havert
- -----------------------------------------
John R. Zaylor, as Regular Trustee
/s/ John R. Zaylor
- -----------------------------------------
The Bank of New York, as Property Trustee
/s/ Thomas C. Knight
- -----------------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.2
DECLARATION OF TRUST
OF
OXY CAPITAL TRUST II
DECLARATION OF TRUST ("Declaration") dated and effective as of December 16,
1998, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Subordinated Debt Securities (as defined herein) of the
Parent; and
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the preamble
above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and to Exhibits
are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
<PAGE>
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Occidental Petroleum Corporation, a Delaware corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME.
<PAGE>
The Trust created by this Declaration is named "Oxy Capital Trust II." The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 OFFICE.
The address of the principal office of the Trust is 10889 Wilshire
Boulevard, Los Angeles, California 90024. At any time, the Regular Trustees
may designate another principal office.
SECTION 2.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated Debt
Securities, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments or, other than
as permitted herein, pledge any of its assets.
SECTION 2.4 AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre and post-effective amendments thereto (including any
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
<PAGE>
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7 FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III
TRUSTEES
SECTION 3.1 TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be A. R. Leach, J. R. Havert and John R.
Zaylor, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Wilmington, Delaware 19711. The initial
property trustee (the "Property Trustee") shall be The Bank of New York, 101
Barclay Street 21 West, New York, New York 10286.
SECTION 3.2 DELAWARE TRUSTEE AND PROPERTY TRUSTEE
Notwithstanding any other provision of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3 EXECUTION OF DOCUMENTS
(a) Any two Regular Trustees are authorized to execute on behalf of the
Trust the Registration Statement referred to in Section 2.6(a) and any
amendments thereto and any other
<PAGE>
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise
(b) the Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.3 FIDUCIARY DUTY.
<PAGE>
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between Covered
Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable
to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect
<PAGE>
of any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence or willful misconduct with respect to such acts or omissions;
and
(b) to the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5 OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's rights or duties hereunder without such
trustee's prior written consent.
SECTION 5.2 TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust; and
<PAGE>
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event referred to
in Section 5.2(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
SECTION 5.3 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 5.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.6 COUNTERPARTS.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as
of the day and year first above written.
OCCIDENTAL PETROLEUM The Bank of New York (Delaware),
CORPORATION, as Sponsor as Delaware Trustee
By: /s/ J. R. Havert /s/ Walter N. Gitlin
- ----------------------------------------- --------------------------------
Name: J. R. Havert Name: Walter N. Gitlin
Title: Vice President and Treasurer Title: Authorized Signatory
A. R. Leach, as Regular Trustee
/s/ A. R. Leach
- -----------------------------------------
J. R. Havert, as Regular Trustee
/s/ J. R. Havert
- -----------------------------------------
John R. Zaylor, as Regular Trustee
/s/ John R. Zaylor
- -----------------------------------------
The Bank of New York, as Property Trustee
/s/ Thomas C. Knight
- -----------------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.3
DECLARATION OF TRUST
OF
OXY CAPITAL TRUST III
DECLARATION OF TRUST ("Declaration") dated and effective as of December 16,
1998, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Subordinated Debt Securities (as defined herein) of the
Parent; and
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the preamble
above have the respective meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and to Exhibits
are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
<PAGE>
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Occidental Petroleum Corporation, a Delaware corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME.
<PAGE>
The Trust created by this Declaration is named "Oxy Capital Trust III." The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 2.2 OFFICE.
The address of the principal office of the Trust is 10889 Wilshire
Boulevard, Los Angeles, California 90024. At any time, the Regular Trustees
may designate another principal office.
SECTION 2.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated Debt
Securities, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments or, other than
as permitted herein, pledge any of its assets.
SECTION 2.4 AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre and post-effective amendments thereto (including any
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
<PAGE>
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7 FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III
TRUSTEES
SECTION 3.1 TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be A. R. Leach, J. R. Havert and John R.
Zaylor, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Wilmington, Delaware 19711. The initial
property trustee (the "Property Trustee") shall be The Bank of New York, 101
Barclay Street 21 West, New York, New York 10286.
SECTION 3.2 DELAWARE TRUSTEE AND PROPERTY TRUSTEE
Notwithstanding any other provision of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3 EXECUTION OF DOCUMENTS
(a) Any two Regular Trustees are authorized to execute on behalf of the
Trust the Registration Statement referred to in Section 2.6(a) and any
amendments thereto and any other
<PAGE>
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise
(b) the Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.
SECTION 4.3 FIDUCIARY DUTY.
<PAGE>
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Trust or any other
Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect
<PAGE>
of any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence or willful misconduct with respect to such acts or omissions;
and
(b) to the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5 OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's rights or duties hereunder without such
trustee's prior written consent.
SECTION 5.2 TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust; and
<PAGE>
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event referred to
in Section 5.2(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
SECTION 5.3 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
SECTION 5.6 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be executed as
of the day and year first above written.
OCCIDENTAL PETROLEUM The Bank of New York (Delaware),
CORPORATION, as Sponsor as Delaware Trustee
By: /s/ J. R. Havert /s/ Walter N. Gitlin
- ----------------------------------------- --------------------------------
Name: J. R. Havert Name: Walter N. Gitlin
Title: Vice President and Treasurer Title: Authorized Signatory
A. R. Leach, as Regular Trustee
/s/ A. R. Leach
- -----------------------------------------
J. R. Havert, as Regular Trustee
/s/ J. R. Havert
- -----------------------------------------
John R. Zaylor, as Regular Trustee
/s/ John R. Zaylor
- -----------------------------------------
The Bank of New York, as Property Trustee
/s/ Thomas C. Knight
- -----------------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.4
--------------------------------
AMENDED AND RESTATED DECLARATION
OF TRUST
OXY CAPITAL TRUST [ ]
Dated as of [ ], 199[ ]
--------------------------------
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.................................................... 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application............................... 6
Section 2.2 Lists of Holders of Securities................................. 7
Section 2.3 Reports by the Property Trustee................................ 7
Section 2.4 Periodic Reports to the Property Trustee....................... 7
Section 2.5 Evidence of Compliance with Conditions Precedent............... 7
Section 2.6 Events of Default; Waiver...................................... 8
Section 2.7 Event of Default; Notice....................................... 9
ARTICLE III
ORGANIZATION
Section 3.1 Name........................................................... 10
Section 3.2 Office......................................................... 10
Section 3.3 Purpose........................................................ 10
Section 3.4 Authority...................................................... 11
Section 3.5 Title to Property of the Trust................................. 11
Section 3.6 Powers and Duties of the Regular Trustees...................... 11
Section 3.7 Prohibition of Actions by the Trust and the Trustees........... 14
Section 3.8 Powers and Duties of the Property Trustee...................... 15
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.... 18
Section 3.10 Certain Rights of the Property Trustee......................... 19
Section 3.11 Delaware Trustee............................................... 20
Section 3.12 Execution of Documents......................................... 20
Section 3.13 Not Responsible for Recitals or Issuance of Securities......... 20
Section 3.14 Duration of Trust.............................................. 21
Section 3.15 Mergers........................................................ 21
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities........................ 22
Section 4.2 Responsibilities of the Sponsor................................ 22
Section 4.3 Right to Proceed............................................... 23
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees............................................. 23
Section 5.2 Delaware Trustee............................................... 24
Section 5.3 Property Trustee; Eligibility.................................. 24
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee
Generally...................................................... 25
Section 5.5 Regular Trustees............................................... 25
Section 5.6 Appointment, Removal and Resignation of Trustees............... 26
Section 5.7 Vacancies Among Trustees....................................... 27
Section 5.8 Effect of Vacancies............................................ 27
Section 5.9 Meetings....................................................... 27
Section 5.10 Delegation of Power............................................ 28
Section 5.11 Merger, Conversion, Consolidation or Succession to
Business....................................................... 28
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.................................................. 28
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities........................ 29
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust........................... 30
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities......................................... 31
Section 9.2 Transfer of Certificates....................................... 32
Section 9.3 Deemed Security Holders........................................ 32
Section 9.4 Book Entry Interests........................................... 32
Section 9.5 Notices to Clearing Agency..................................... 34
Section 9.6 Appointment of Successor Clearing Agency....................... 34
Section 9.7 Definitive Preferred Security Certificates Under Certain
Circumstances.................................................. 34
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.............. 35
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability...................................................... 36
Section 10.2 Exculpation.................................................... 36
Section 10.3 Fiduciary Duty................................................. 36
Section 10.4 Indemnification................................................ 37
Section 10.5 Outside Businesses............................................. 38
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.................................................... 38
Section 11.2 Certain Accounting Matters..................................... 38
Section 11.3 Banking........................................................ 39
Section 11.4 Withholding.................................................... 39
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments..................................................... 40
Section 12.2 Meetings of the Holders of Securities; Action by Written
Consent........................................................ 41
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of the Property Trustee......... 42
Section 13.2 Representations and Warranties of the Delaware Trustee......... 43
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices........................................................ 44
Section 14.2 Governing Law.................................................. 45
Section 14.3 Intention of the Parties....................................... 46
Section 14.4 Headings....................................................... 46
Section 14.5 Successors and Assigns......................................... 46
Section 14.6 Partial Enforceability......................................... 46
Section 14.7 Counterparts................................................... 46
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
OXY CAPITAL TRUST [ ]
[ ], 199[ ]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [ ], 199[ ] by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Occidental Petroleum
Corporation, a Delaware corporation, as trust sponsor (the "Sponsor"), and by
the holders, from time to time, of the securities representing undivided
beneficial interests in the assets of the Oxy Capital Trust[ ] (the "Trust") to
be issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established a trust (the
"Trust") under the Business Trust Act (as defined herein) pursuant to a
Declaration of Trust, dated as of [ ], 199[ ] (the "Original Declaration") and a
Certificate of Trust filed with the Secretary of State of Delaware on [ ],
199[ ], for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain Subordinated Notes (as defined herein)
of the Subordinated Notes Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
<PAGE>
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Amended and Restated Declaration of Trust as modified, supplemented or amended
from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act as in effect on the date of this Declaration.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. (S)(S)3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means [ ], 199[ ].
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
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"Common Securities Guarantee" means the guarantee agreement to be dated as
of [ ], 199[ ] of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex II to Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of: (i) the Trust; or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Subordinated Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time or any successor legislation.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means
(i) any Trustee;
(ii) any Affiliate of any Trustee;
(iii) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or
(iv) any employee or agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of [ ], 199[ ] among the
Subordinated Notes Issuer and The Bank of New York, as trustee, as supplemented
by an Officers' Certificate (as defined in the Indenture) dated as of [ ],
199[ ] pursuant to Section 301 of the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act.
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"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities
voting separately as a class, who vote Securities of a relevant class and the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Securities
voted by such Holders represents more than 50% of the above stated aggregate
liquidation amount of all Securities of such class.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of [ ], 199[ ] of the Sponsor in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
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"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement or Underwriting Agreement
for the offering and sale of Preferred Securities, substantially in the form of
Exhibit C.
"Quorum" means a majority of the Regular Trustees or if there are only two
Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, the
chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Property Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor legislation.
"Special Event" has the meaning set forth in the terms of the Securities.
"Sponsor" means Occidental Petroleum Corporation, a Delaware corporation or
any permitted successor thereof under the Indenture, in its capacity as sponsor
of the Trust.
"Subordinated Notes" means the series of Subordinated Notes to be issued by
the Subordinated Notes Issuer under the Indenture to be held by the Property
Trustee pursuant to Section 3.6(c), a specimen certificate for such series of
Subordinated Notes attached hereto as Exhibit B.
"Subordinated Notes Issuer" means Occidental Petroleum Corporation, a
Delaware corporation.
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"Subordinated Notes Trustee" means The Bank of New York, as trustee under
the Indenture until a successor is appointed thereunder and thereafter means
such successor trustee.
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.3(a).
"25% in liquidation amount of the Securities" means, except as provided in
the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s)
of Securities voting together as a single class or, as the context may require,
Holder(s) of Preferred Securities or Common Securities, voting separately as a
class, who vote Securities of a relevant class and the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Securities voted by such Holders
represents 25% of the above stated aggregate liquidation amount of all
Securities of such class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions;
(b) the Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act;
(c) if and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by (S)(S) 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control; and
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(d) the application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Regular Trustees, on behalf of the Trust,
shall provide the Property Trustee (i) semiannually, not later than June 30 and
December 31 in each year, a list, in such form as the Property Trustee may
reasonably require, containing all the information in the possession or control
of the Sponsor, or any of its Paying Agents other than the Property Trustee, as
to the names and addresses of the Holders of Securities ("List of Holders") as
of the preceding June 15 or December 15, as the case may be, and (ii) at such
other times as the Property Trustee may request in writing, within 30 days after
the receipt by the Trust of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished. The
Property Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it or which
it receives in its capacity as Paying Agent (if acting in such capacity)
provided that the Property Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders; and
(b) the Property Trustee shall comply with its obligations under (S)(S)
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
-------------------------------
Within 60 days after May 15 of each year, commencing May [ ], the Property
Trustee shall provide to the Holders of the Securities such reports as are
required by (S) 313 of the Trust Indenture Act, if any, in the form and in the
manner provided by (S) 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of (S) 313(d) of the Trust Indenture
Act.
Section 2.4 Periodic Reports to the Property Trustee.
----------------------------------------
Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall
provide to the Property Trustee such documents, reports and information as
required by (S) 314 (if any) and the compliance certificate required by (S) 314
of the Trust Indenture Act in the form, in the manner and at the times required
by (S) 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Regular Trustees, on behalf of the Trust, shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration which relate to any of the
matters set forth in (S) 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to (S) 314(c)(1) may be
given in the form of an Officers' Certificate.
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Section 2.6 Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, the Event of Default under
this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of Subordinated Notes affected thereby (a
"Super Majority") to be waived under the Indenture, the Event of Default
under this Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Preferred Securities
which the relevant Super Majority represents of the aggregate principal
amount of the Subordinated Notes outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
this Declaration as provided below in the proviso to this Section 2.6(b),
the Event of Default under this Declaration shall also be not waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under this Declaration as provided below in the
proviso to this Section 2.6(b), the Event of Default under this Declaration
may only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the Subordinated
Notes outstanding,
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provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities; and provided, further, that any waiver by the Holders of the
Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holder of the Common Securities. The foregoing provisions of this
Section 2.6(b) shall be in lieu of Section 316(a)(1)(A) and Section 316(a)(1)(B)
of the Trust Indenture Act and such Section 316(a)(1)(A) and Section
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Subject
to the foregoing provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of any Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Event of Default with respect to the Preferred
Securities under this Declaration. Any waiver of an Event of Default under the
Indenture by the Property Trustee at the direction of the Holders of the
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of the corresponding Event of Default under this
Declaration with respect to the Common Securities for all purposes of this
Declaration without further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the occurrence of an
Event of Default with respect to the Securities known to the Property Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all such defaults unless such defaults have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section
2.7(a) being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Subordinated Notes or in the payment of any sinking fund
installment established for the Subordinated Notes, the Property Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Property Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities.
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(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property Trustee
charged with the administration of the Declaration shall have actual
knowledge.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
----
The Trust is named "Oxy Capital Trust [ ]", as such name may be modified
from time to time by the Regular Trustees following written notice to the
Holders of Securities. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
Section 3.2 Office.
------
The address of the principal office of the Trust is c/o Occidental
Petroleum Corporation, 10889 Wilshire Boulevard, Los Angeles, CA 90024,
Attention: General Counsel. On ten Business Days written notice to the
Property Trustee and Holders of Securities, the Regular Trustees may designate
another principal office.
Section 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. It is the intention of all of the parties hereto
that the Trust created hereunder constitutes a "grantor trust" for United States
federal income tax purposes under the Code, and all parties hereto, and the
Holders of the Preferred Securities by the purchase of the Preferred Securities,
agree to treat the Trust with such characterization. The provisions of this
Agreement shall be interpreted consistently with such characterization. Unless
otherwise required by law, by the acceptance of this Trust, neither the
Trustees, the Sponsor nor the Holders of the Preferred Securities or Common
Securities will take any position which is contrary to the classification of the
Trust as a grantor trust for United States federal income tax purposes.
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Section 3.4 Authority.
---------
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, provided that the registration statement referred to in
Section 3.6, including any amendments thereto, shall, subject to Section 3.4(d),
be signed by at least two of the Regular Trustees.
(d) A Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of executing any documents which the Regular Trustees have
power and authority to cause the Trust to execute pursuant to Section 3.6.
Section 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Subordinated Notes
and the Property Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. A Holder
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
-----------------------------------------
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to execute, issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date [and any other date Preferred Securities
and Common Securities are sold pursuant to the overallotment option granted in
the Purchase Agreement];
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(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form S-3 prepared by
the Sponsor in relation to the Preferred Securities, including any pre- and
post-effective amendments thereto and any related registration statement to
be filed pursuant to Rule 462(b) of the Securities Act prepared by the
Sponsor;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor as necessary in order to qualify or
register all or part of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application prepared by the Sponsor, at such
time as determined by the Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission, at such time as determined
by the Sponsor, a registration statement on Form 8-A prepared by the
Sponsor relating to the registration of the Preferred Securities under
Section 12(b) of the Exchange Act, including any amendments thereto
prepared by the Sponsor;
(v) execute and enter into, and perform its obligations under, the
Purchase Agreement providing for the sale of the Preferred Securities;
(vi) execute and deliver letters, documents, or instruments with DTC
relating to the Preferred Securities;
(vii) execute and enter into the Purchase Agreement and other related
agreements providing for the sale of the Securities;
(viii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order to qualify
or register all or part of the Preferred Securities in any State in which
the Sponsor has determined to qualify or register such Preferred Securities
for sale or resale, as the case may be; and
(ix) take all actions and perform such duties as may be required of
the Regular Trustees to open checking, deposit or similar banking accounts
as may be necessary in connection with the issuance and sale of the
Securities.
(c) in connection with the issue and sale of Common Securities, to execute
and enter into, and perform its obligations under, the Common Securities
Subscription Agreement dated as of [ ], 199[ ] between the Trust and the Sponsor
(the "Common Securities Subscription Agreement");
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(d) to execute and enter into, and perform its obligations under, the
Subordinated Notes Subscription Agreement dated as of [ ], 199[ ] between the
Trust and the Sponsor (the "Subordinated Notes Subscription Agreement") to
acquire the Subordinated Notes with the proceeds of the sale of the Preferred
Securities and the Common Securities; provided, however, that the Regular
Trustees shall cause legal title to the Subordinated Notes to be owned by and
held of record in the name of the Property Trustee for the benefit of the
Holders of the Preferred Securities and the Common Securities;
(e) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the purposes
of (S)316(c) of the Trust Indenture Act and with respect to Distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and Common Securities as to such actions and
applicable record dates;
(g) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities and this
Declaration;
(h) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8, the Property Trustee has the
power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(k) to give the certificate to the Property Trustee required by (S)
314(a)(4) of the Trust Indenture Act which certificate may be executed by any
Regular Trustee;
(l) to incur expenses which are necessary or incidental to carrying out any
of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(n) to give prompt written notice to the Holders of the Securities of any
notice received from the Subordinated Notes Issuer of its election to defer
payments of interest on the Subordinated Notes by extending the interest payment
period under the Indenture;
(o) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which
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such existence is necessary to protect the limited liability of the Holders of
the Securities or to enable the Trust to effect the purposes for which the Trust
was created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6 including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Subordinated Notes Issuer to ensure that the
Subordinated Notes will be treated as indebtedness of the Subordinated
Notes Issuer for United States federal income tax purposes, provided that
such action relating to this clause (iii) does not adversely affect the
interests of Holders; and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust;
(r) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to Section 11.2 herein;
(s) to the extent provided in this Declaration, to cause the winding up
of the affairs of and liquidation of the Trust and the preparation, execution
and filing of the Certificate of Cancellation with the Secretary of State of the
State of Delaware; and
(t) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner which is consistent with the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
out in Section 3.3 and the Regular Trustees shall not take any action which is
inconsistent with or contrary to the purposes, functions and characterization
for United States federal income tax purposes of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
The Trust initially appoints the Property Trustee as transfer agent and
registrar for the Preferred Securities.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) Notwithstanding any provision herein to the contrary, the Trust shall
not, and the Trustees (including the Property Trustee) shall cause the Trust not
to, engage in any activity
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other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Property Trustee) shall cause
the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Subordinated Notes, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than the Subordinated Notes and any
cash proceeds received with respect thereto;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Subordinated Notes;
(v) possess any power or otherwise act in such a way as to vary the
assets of the Trust or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as expressly provided in this Declaration and
Exhibit A hereto, (A) direct the time, method and place of exercising any
trust or power conferred upon the Subordinated Notes Trustee with respect
to the Subordinated Notes, (B) waive any past default that is waivable
under Section 513 of the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the Subordinated Notes
shall be due and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Subordinated Notes, where such consent
shall be required, unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
Section 3.8 Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Subordinated Notes shall be owned by and held
of record in the name of the Property Trustee for the benefit of the Trust and
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Subordinated Notes shall vest automatically in each Person who
may hereafter be appointed as Property Trustee as set forth in Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Subordinated Notes to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
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(c) The Property Trustee shall:
(i) establish and maintain a segregated noninterest bearing bank
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Trust and the
Holders of the Securities and, upon the receipt of payments of funds made
in respect of the Subordinated Notes held by the Property Trustee, deposit
such funds into the Property Trustee Account and make payments to the
Holders of the Preferred Securities and the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account shall be an
account which is maintained with a banking institution the rating on whose
long term unsecured indebtedness is at least equal to the rating assigned
to the Preferred Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Subordinated Notes are redeemed or
mature; and
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Subordinated Notes to Holders
of Securities upon the Sponsor's election to dissolve the Trust in
accordance with Section 8.1(a)(v).
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
the Securities and this Declaration.
(e) The Property Trustee shall have the power to take any Legal Action
which arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Declaration, the Business Trust Act
or the Trust Indenture Act. If the Property Trustee fails to enforce its rights
under the Subordinated Notes after a Holder of Preferred Securities has made a
written request, such Holder may institute a legal proceeding against the
Subordinated Notes Issuer, to enforce the Property Trustee's rights under the
Subordinated Notes, without first instituting any legal proceeding against the
Property Trustee or any other person or entity. Notwithstanding the foregoing,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Subordinated Notes Issuer to pay interest,
premium, if any, or principal on the Subordinated Notes on the date such
interest, premium, if any, or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder of the
principal of, premium, if any, or interest on, the Subordinated Notes having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder (a "Direct Action"). Notwithstanding any payments made
to such Holder of Preferred Securities by the Subordinated Notes Issuer in
connection with a Direct Action, the Subordinated Notes Issuer shall remain
obligated to pay the principal of, premium, if any, or interest on the
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Subordinated Notes held by the Trust or the Property Trustee of the Trust, and
the Subordinated Notes Issuer shall be subrogated to the rights of the Holder of
such Preferred Securities with respect to payments on the Preferred Securities.
Except as provided in the preceding sentences and in the Preferred Securities
Guarantee, the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Subordinated Notes.
(f) No resignation of the Property Trustee shall be effective unless
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Subordinated Notes under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Subordinated Notes subject to the rights of the Holders
pursuant to the terms of such Securities and this Declaration.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to the Preferred Securities and any
such Paying Agent shall comply with (S) 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the powers or the authority of the Regular Trustees set forth in Section 3.6.
(j) The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner which is consistent with the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
forth in Section 3.3 and the Property Trustee shall not take any action which is
inconsistent with or contrary to the purposes, functions and characterization
for United States federal income tax purposes of the Trust set out in Section
3.3.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred:
(i) shall undertake to perform only such duties as are specifically
set forth in this Declaration and in the terms of the Securities, and no
implied covenants, duties or obligations shall be read into this
Declaration against the Property Trustee; and
(ii) in the absence of bad faith on the part of the Property Trustee,
the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the
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opinions expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Declaration.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall exercise such of the rights
and powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise or use, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs;
(b) no provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit Subsection (a)
of this Section;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in liquidation
amount of the Securities at the time outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to
the Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Declaration including, without limitation, with
respect to the Securities; and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Property Trustee shall be subject to the provisions of this
Section.
Section 3.10 Certain Rights of the Property Trustee.
--------------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or
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document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(ii) any act of the Sponsor or the Regular Trustees contemplated by
this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any recording,
refiling or registration thereof);
(v) the Property Trustee may consult with counsel of its selection
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon. Such counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any Holder, unless such Holder shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities that might be incurred by it in complying with
such request or direction;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document, but the Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit and, if the Property Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Trust, personally or by agent or attorney;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so act,
or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
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(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the Securities in respect of
such remedy, right or action, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions;
(xi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and, provided that the Sponsor has consented in writing
to the appointment of any agent or attorney, the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(xii) the Property Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Declaration.
Section 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than Section
5.1, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Trustees described in this Declaration, except as mandated by the Business Trust
Act. Except as set forth in Section 5.1, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of (S)
3807(a) of the Business Trust Act.
Section 3.12 Execution of Documents.
----------------------
Unless otherwise determined by the Regular Trustees and except as otherwise
required by the Business Trust Act, each of the Regular Trustees are authorized
to execute on behalf of the Trust any documents which the Regular Trustees have
the power and authority to execute pursuant to Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
Section 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for [ ] years from the Closing Date.
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Section 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c);
(b) the Trust may, with the consent of a majority of the Regular Trustees
and without the consent of the Holders of the Securities, the Delaware Trustee
or the Property Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided,
that if the Trust is not the surviving entity:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank with respect to Distributions
and payments upon liquidation, redemption and maturity and substitutes
for the Common Securities other securities having substantially the
same terms as the Common Securities (the "Successor Common
Securities"), so long as the Successor Common Securities rank the same
as the Common Securities rank with respect to Distributions and
payments upon liquidation, redemption, repayment and otherwise;
(ii) the Subordinated Notes Issuer expressly acknowledges a trustee
of the Successor Entity which possesses the same powers and duties as the
Property Trustee as the Holder of the Subordinated Notes;
(iii) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating organization;
(iv) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities and any Successor
Common Securities) in any material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
(v) such Successor Entity has a purpose identical to that of the
Trust;
(vi) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the
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Securities (including any Successor Securities and Successor Common
Securities) in any material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Successor Entity will continue to be classified as a
grantor trust for United States federal income tax purposes; and
(vii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities and Successor Common Securities at least to
the extent provided by the Preferred Securities Guarantee and the Common
Securities Guarantee, respectively; and
(c) notwithstanding Section 3.15(b), the Trust shall not (except with the
written consent of Holders of 100% of the outstanding Preferred Securities)
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor
trust for United States federal income tax purposes. Prior to such merger,
consolidation, amalgamation, or replacement, the Sponsor shall have received an
opinion of tax counsel to the Trust, experienced in such matters to the effect
that following such merger, consolidation, amalgamation or replacement, the
Trust will continue to be classified as grantor trust for United States federal
income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date [and any other date Preferred Securities and Common
Securities are sold pursuant to the overallotment option granted in the Purchase
Agreement] the Sponsor will purchase all the Common Securities issued by the
Trust, at the same time as the Preferred Securities are sold, in an amount at
least equal to 3% of the capital of the Trust.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission, at such time
as determined by the Sponsor, a registration statement on Form S-3 in relation
to the Preferred Securities, including any amendments thereto;
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(b) if necessary, to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to take any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) if necessary, to prepare for filing by the Trust an application, at
such time as determined by the Sponsor, to the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance, of any Preferred Securities;
(d) if necessary, to prepare for filing by the Trust with the Commission,
at such time as determined by the Sponsor, a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section 12(b) of
the Exchange Act, including any amendments thereto;
(e) if necessary, to negotiate the terms of the Purchase Agreement
providing for the sale of the Preferred Securities;
(f) execute and enter into the Purchase Agreement, the Subordinated Notes
Subscription Agreement and the Common Securities Subscription Agreement to be
entered into with the Company; and
(g) prepare for execution and filing by the Trust of documents, or
instruments to be delivered to DTC relating to the Preferred Securities.
Section 4.3 Right to Proceed.
----------------
The Sponsor acknowledges the rights of Holders to institute a Direct Action
as set forth in Section 3.8(e) hereto.
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
------------------
(a) The number of Trustees shall initially be five (5).
(b) At any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees.
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(c) After the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that the number of Trustees shall in
no event be less than three (3); provided further that (1) if required by the
Business Trust Act, one Trustee (the "Delaware Trustee") shall be: (a) a natural
person who is a resident of the State of Delaware; or (b) if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law (provided that
if the Property Trustee has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, then the
Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have
no application); (2) there shall be at least two Trustees who are employees or
officers of, or are affiliated with the Sponsor; and (3) one Trustee shall be
the Property Trustee for so long as this Declaration is required to qualify as
an indenture under the Trust Indenture Act, and such Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
Section 5.2 Delaware Trustee.
----------------
The initial Delaware Trustee under this Declaration shall be:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attn: [ ]
If the Delaware Trustee has or shall acquire any "conflicting interest"
within the meaning of (S) 310(b) of the Trust Indenture Act, the Delaware
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in (S) 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of (S) 310(b) of the Trust Indenture Act.
Section 5.3 Property Trustee; Eligibility.
-----------------------------
The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attn: [ ]
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State thereof or of the District of
Columbia, or a corporation or Person permitted by the Commission to act as
an institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers,
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having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State
or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the purposes
of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of (S) 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in (S) 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of (S) 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee, the Common Securities Guarantee
and the Indenture shall be deemed to be specifically described in this
Declaration and the Indenture for purposes of clause (i) of the first proviso
contained in (S) 310(b) of the Trust Indenture Act.
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee
-------------------------------------------------------
Generally.
- ---------
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity which shall act through one or more Authorized
Officers.
Section 5.5 Regular Trustees.
----------------
The initial Regular Trustees under this Declaration shall be:
J. R. Havert
A. R. Leach
John R. Zaylor
c/o Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6.
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Section 5.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities; and
(b)
(i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.6(a) until a Successor Property Trustee
possessing the qualifications to act as Property Trustee under Section 5.3
(a "Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property
Trustee and delivered to the Regular Trustees and the Sponsor.
(ii) So long as a Delaware Trustee is required pursuant to Section
5.1, the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until such Trustee's death, bankruptcy,
dissolution, termination, removal or resignation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective (A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or (B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the holders
of the Securities; and
(ii) so long as a Delaware Trustee is required pursuant to Section
5.1, no such resignation of the Trustee that acts as the Delaware Trustee
shall be effective until a Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
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(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee (so long as a Delaware Trustee is
required pursuant to Section 5.1) or Successor Property Trustee, as the case may
be, if the Property Trustee or the Delaware Trustee delivers an instrument of
resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery of an instrument of resignation or removal, the
Property Trustee or Delaware Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
Section 5.7 Vacancies Among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy
shall be filled with a Trustee appointed in accordance with Section 5.6.
Section 5.8 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in
the number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
Section 5.9 Meetings.
--------
Meetings of the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
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telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
Section 5.10 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section 3.6
including any registration statement or amendment thereto filed with the
Commission or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be bound by this Declaration, or any corporation succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable terms
of the relevant Holder's Securities. Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Subordinated Notes Issuer makes a payment of interest (including Additional
Interest (as defined in the Indenture)), premium, if any, and principal on the
Subordinated Notes held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders. In the event the Sponsor
shall defer any payment of principal, premium, if any, or interest on the
Subordinated Notes, the Trust shall, in like manner, defer payments of
Distributions on the Securities, and Additional Distributions shall accrue on
such Securities for so long as the payment of principal, premium, if any, or
interest on the Subordinated Notes is deferred.
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ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall, on behalf of the Trust, issue one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit A and incorporated
herein by reference (the "Preferred Securities"), and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A and incorporated herein by
reference (the "Common Securities"). The Trust shall have no securities or other
interests in the assets of the Trust other than the Preferred Securities and the
Common Securities;
(b) the Certificates shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of the
Regular Trustees). Such signatures may be the manual or facsimile signatures of
the present or any future Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not affect the
validity of any Certificate. In case any Regular Trustee of the Trust who shall
have signed any of the Certificates shall cease to be such Regular Trustee
before the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who shall at the actual date of
execution of such Security, be the Regular Trustees of the Trust, although at
the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage. A Preferred
Security shall not be valid until authenticated by the manual signature of an
authorized signatory of the Property Trustee. The signature shall be conclusive
evidence that the Preferred Security has been authenticated under this
Declaration. Upon a written order of the Trust signed by one Regular Trustee,
the Property Trustee shall authenticate the Preferred Securities for original
issue. The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Trust or an Affiliate;
(c) the consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust;
(d) upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable; and
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(e) every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by this Declaration.
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1 Dissolution and Termination of Trust.
------------------------------------
(a) The Trust shall dissolve and its affairs shall be wound up, upon the
earliest to occur of the following:
(i) upon the bankruptcy of the Sponsor or the Holder of the Common
Securities;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, the filing of a certificate of
cancellation with respect to the Trust upon the consent (other than in
connection with a dissolution of the Trust pursuant to clause (v) of this
Section 8.1(a)) of the Holders of at least a Majority in liquidation amount
of the Securities, voting together as a single class, to file such
certificate of cancellation, or the revocation of the charter of the
Sponsor or the Holder of the Common Securities and the expiration of 90
days after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust or the Holder of the Common Securities;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(v) upon the election by the Sponsor, effective upon notice to the
Trust, the Property Trustee and the Delaware Trustee, to dissolve the Trust
in accordance with the terms of the Securities and all of the Subordinated
Notes held by the Property Trustee shall have been distributed to the
Holders of Securities in exchange for all of the Securities;
(vi) upon the written direction to the Property Trustee from the
Sponsor at any time to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, the
distribution of Subordinated Notes to Holders in exchange for the
Securities, subject to the Regular Trustees' receipt of an opinion of
counsel experienced in such matters to the effect that the Holders of the
Preferred Securities will not recognize any income, gain or loss for United
States federal income tax purposes as a result of the dissolution of the
Trust and such distribution to Holders; or
(vii) before the issuance of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
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(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a) or dissolution pursuant to Section 3.14 and upon the
completion of the winding up of the Trust, one of the Regular Trustees (each
Regular Trustee being hereby authorized to take such action) shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
terminating the Trust.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
----------------------
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void;
(b) subject to this Article IX, Preferred Securities shall be freely
transferable; and
(c) subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer shall not violate the Securities Act and is
subject to the condition precedent that the transferor obtain the written
opinion of counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to register
under the Investment Company Act or the transferee would become an
Investment Company required to register under the Investment Company Act.
(d) Each Common Security that bears or is required to bear the legend set
forth in this Section 9.1(d) shall be subject to the restrictions on transfer
provided in the legend set forth in this Section 9.1(d), unless such
restrictions on transfer shall be waived by the written consent of the Regular
Trustees, and the Holder of each such Common Security, by such security holder's
acceptance thereof, agrees to be bound by such restrictions on transfer. As used
in this Section 9.1(d) and in Section 9.1(c), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any such Common Security.
Any certificate evidencing a Common Security shall bear a legend in
substantially the following form, unless otherwise agreed by the Regular
Trustees (with written notice thereof to the Property Trustee):
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THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE
REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW.
Section 9.2 Transfer of Certificates.
------------------------
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration and
the documents incorporated by reference herein.
(b) Notwithstanding any other provisions of this Declaration, a Global
Certificate may not be transferred as a whole, except by the Clearing Agency to
a nominee of the Clearing Agency or by the Clearing Agency or any such nominee
to a successor Clearing Agency or a nominee of such successor Clearing Agency.
Section 9.3 Deemed Security Holders.
-----------------------
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
Section 9.4 Book Entry Interests.
--------------------
(a) So long as Preferred Securities are eligible for book entry settlement
with the Clearing Agency or unless otherwise required by law, all Preferred
Securities that are so eligible may be represented by one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the
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Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such Global
Certificates, except as provided in Section 9.7. The transfer and exchange of
beneficial interests in any such Security in global form shall be effected
through the Clearing Agency in accordance with this Declaration and the
procedures of the Clearing Agency therefor.
(b) Except as provided below, Beneficial Owners of a Preferred Security in
global form shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holder of such
Preferred Security in global form.
(c) Any Global Certificate may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Declaration as may be required by the Clearing Agency, by any
national securities exchange or by the National Association of Securities
Dealers, Inc. as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or interdealer quotation system upon which the Preferred Securities may
be listed or traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Preferred Securities are subject.
(d) Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force and
effect with respect to such Preferred Securities;
(ii) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(iv) the rights of the Beneficial Owners of Preferred Securities in
global form shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants. The Clearing Agency will make book entry
transfers among the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers among the Clearing
Agency Participants, provided, that solely for the purposes of determining
whether the Holders of the requisite amount of Preferred Securities have
voted on any matter provided for in this Declaration, so long as Definitive
Preferred Security Certificates have not been issued,
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the Trustees may conclusively rely on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the Trustees by
the Clearing Agency setting forth the Preferred Securities Beneficial
Owners' votes or assigning the right to vote on any matter to any other
Persons either in whole or in part.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in this Section 9.4(c)), a Preferred Security in global
form may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
Section 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall give all such
notices and communications, specified herein to be given to the Preferred
Security Holders, to the Clearing Agency, and shall have no notice obligations
to the Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency notifies the Trust that it is unwilling or unable to
continue its services as securities depositary with respect to the Preferred
Securities if such Clearing Agency ceases to perform such services, or if at any
time such Clearing Agency ceases to be a clearing agency registered as such
under the Exchange Act when such Clearing Agency is required to be so registered
to act as such depositary, then the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Preferred
Securities.
Section 9.7 Definitive Preferred Security Certificates Under Certain
--------------------------------------------------------
Circumstances.
- -------------
If:
(a) a Clearing Agency notifies the Trust that it is unwilling or unable to
continue its services as securities depositary with respect to the Preferred
Securities, if such Clearing Agency ceases to perform such services, or if at
any time such Clearing Agency ceases to be a clearing agency registered as such
under the Exchange Act when such Clearing Agency is required to be so registered
to act as such depositary, and a successor Clearing Agency is not appointed
within 90 days after such discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees (with the consent of the Sponsor) in their sole
discretion determine that the Preferred Securities in global form shall be
exchanged for certificated Preferred Securities;
then:
(i) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
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(ii) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners of such Preferred Securities in
accordance with the instructions of the Clearing Agency. Neither the
Trustees nor the Trust shall be liable for any delay in delivery of such
instructions and each of them may conclusively rely on and shall be
protected in relying on, said instructions of the Clearing Agency. The
Definitive Preferred Security Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Preferred Securities may
be listed, or to conform to usage.
At such time as all interests in a Preferred Security in global form have
been redeemed, exchanged, repurchased or canceled, such Preferred Security in
global form shall be, upon receipt thereof, canceled by the Trust in accordance
with standing procedures and instructions of the Clearing Agency.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Property Trustee or the Regular
Trustees such security or indemnity as may be required by them to keep each of
them harmless,
then:
in the absence of notice that such Certificate shall have been acquired by a
bona fide purchaser, the Property Trustee or any Regular Trustee on behalf of
the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Property Trustee or the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
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ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities,
which shall be made solely from assets of the Trust; or
(ii) be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of the
Securities, in their capacity as such, shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
Section 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence (or, in the case of
the Property Trustee, except as otherwise set forth in Section 3.9) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other
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Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provide that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
Section 10.4 Indemnification.
---------------
(a) The Sponsor shall indemnify each Indemnified Person for, and hold each
Indemnified Person harmless against, any loss, liability or expense incurred by
such Indemnified Person by reason of any act or omission performed or omitted by
such Indemnified Person without negligence or bad faith (or, in case of the
Property Trustee, except as set forth in Section 3.9) on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Declaration;
(b) reasonable expenses (including reasonable legal fees and expenses)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by the Sponsor prior to the
final disposition of such claim, demand, action,
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suit or proceeding upon receipt by the Sponsor of an undertaking by or on behalf
of the Indemnified Person to repay such amount if it shall be determined that
the Indemnified Person is not entitled to be indemnified as authorized in
Section 10.4(a); and
(c) the provisions of this Section 10.4 shall survive the termination of
this Declaration or resignation or removal of any Trustee.
Section 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee (subject to Section
5.02(c)) and the Property Trustee (subject to Section 5.03(c)) may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Trust shall keep,
or cause to be kept, full books of account, records and supporting documents,
which shall reflect in reasonable detail, each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon, as of the end of each Fiscal Year, by a firm of
independent certified public accountants selected by the Regular Trustees of the
Trust.
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(b) The Trust shall cause to be duly prepared and delivered to each of the
Holders of Securities, any annual United States federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Trust shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Trust shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Trust
on behalf of the Trust with any state or local taxing authority.
Section 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Subordinated Notes held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Trustee
Account.
Section 11.4 Withholding.
-----------
The Trust shall comply with all withholding requirements under United
States federal, state and local law. The Trust shall request, and the Holders
shall provide to the Trust, such forms or certificates as are necessary to
establish an exemption from withholding with respect to each Holder, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Trust shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay
over any amounts to any authority with respect to distributions or allocations
to any Holder, the amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any claimed over-
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from
actual Distributions made, the Trust may reduce subsequent Distributions by the
amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by, and only by, a
written instrument approved and
39
<PAGE>
executed by the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees); provided, however, that:
(i) no amendment shall be made, and any such purported amendment
shall be void and ineffective, to the extent the result thereof would be
to:
(A) cause the Trust to fail to be classified for the purposes
of United States federal income taxation as a grantor trust;
(B) affect the powers or the rights of the Property Trustee or
the Delaware Trustee without the written consent of the Property
Trustee or the Delaware Trustee, as the case may be; or
(C) cause the Trust to be deemed to be an Investment Company
which is required to be registered under the Investment Company Act;
(ii) at such time after the Trust has issued any Securities which
remain outstanding, any amendment which would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only
with such additional requirements as may be set forth in the terms of such
Securities;
(iii) Section 9.1 (c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(iv) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities; and
(v) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities.
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended
from time to time by the Holders of a Majority in liquidation amount of the
Common Securities and the Property Trustee, without the consent of the Holders
of the Preferred Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision or to make any
other provisions with respect to matters or questions arising under this
Declaration, which shall not be inconsistent with the other provisions of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to ensure the Trust's classification as a grantor trust for
United States federal income tax purposes; and
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<PAGE>
(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the Trust
will not be required to register as an investment company under the
Investment Company Act.
(c) Subject to Section 12.1(a), this Declaration may be amended by the
Holders of a Majority in liquidation amount of the Common Securities and the
Property Trustee if:
(i) The Holders of a Majority in liquidation amount of the
Preferred Securities consent to such amendment; and
(ii) the Regular Trustees have received an opinion of counsel
experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Regular Trustees in accordance with
such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company Act.
(d) Any amendments of this Declaration shall become effective when notice
thereof is given to Holders of Securities.
Section 12.2 Meetings of the Holders of Securities; Action by Written
--------------------------------------------------------
Consent.
- -------
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class of Holders, if directed to do so by the Holders of at
least 25% in liquidation amount of the Securities of such class. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Security Certificates held by the Holders of Securities exercising the right to
call a meeting and only those Securities specified shall be counted for purposes
of determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than
60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration, the terms of the Securities or the rules of any stock exchange
on which the Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that would
be necessary to authorize or take such action at a meeting
41
<PAGE>
at which all Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a meeting
shall be given to the Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any written
ballot submitted to the Security Holder for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) except to the extent that the Business Trust Act, the Trust
Indenture Act, this Declaration, the terms of the Securities or the listing
rules of any stock exchange on which the Preferred Securities are then
listed or trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE XIII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of the Property Trustee.
------------------------------------------------------
The Trustee which acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a New York banking corporation with power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration;
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<PAGE>
(b) the Declaration has been duly executed and delivered by the Property
Trustee, and it constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Organization or Bylaws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any New York State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
Section 13.2 Representations and Warranties of the Delaware Trustee.
------------------------------------------------------
The Trustee which acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation, duly
organized, validly existing and in good standing;
(b) the Delaware Trustee satisfies the requirements set forth in Section
5.1(c) and has the power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, this Declaration and, if it is
not a natural person, is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization;
(c) this Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) no consent, approval or authorization of, or registration with or
notice to, any Delaware State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration;
and
(e) the execution, delivery and performance of this Declaration by the
Delaware Trustee do not conflict with, or constitute a violation or breach of,
the charter or bylaws of the Delaware Trustee.
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ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, postage prepaid, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
Oxy Capital Trust [ ]
c/o Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attn: Corporate Trust Administration
(c) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Securities):
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Attention: Vice President, Treasurer
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
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(f) All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed except that if a notice or
other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
Section 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
Section 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
Section 14.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 14.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
A. R. Leach,
as Regular Trustee
----------------------------------------------
J. R. Havert,
as Regular Trustee
----------------------------------------------
John R. Zaylor,
as Regular Trustee
----------------------------------------------
The Bank of New York (Delaware),
as Delaware Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
The Bank of New York,
as Property Trustee
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Occidental Petroleum Corporation,
as Sponsor
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
46
<PAGE>
EXHIBIT A
TERMS OF
[ ]% PREFERRED SECURITIES
[ ]% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of [ ], 199[ ] (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. Designation and Number.
----------------------
a. Preferred Securities. [ ] Preferred Securities [(including [ ]
--------------------
Preferred Securities of the Trust sold pursuant to an overallotment option
provided for in the Purchase Agreement)] of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of [ ] Dollars ($[ ])
[(plus up to an additional [ ] Preferred Securities with an aggregate
liquidation amount with the respect to the assets of the Trust of [ ] Dollars
($[ ]) solely to cover overallotments, as provided for in the Purchase Agreement
(the "Additional Preferred Securities")),] and a liquidation amount with respect
to the assets of the Trust of $[ ] per Preferred Security, are hereby designated
for the purposes of identification only as "[ ]% Preferred Securities" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached hereto as Annex
I, with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
b. Common Securities. [ ] Common Securities [(including [ ] Common
-----------------
Securities of the Trust sold pursuant to an overallotment option)] of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
[ ] Dollars ($[ ]) [(plus up to an additional [ ] Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
[ ] Dollars ($[ ])] to meet capital requirements of the Trust in the event of an
issuance of Additional Preferred Securities), and a liquidation amount with
respect to the assets of the Trust of $[ ] per Common Security, are hereby
designated for the purposes of identification only as "[ ]% Common Securities"
(the "Common Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form attached hereto as Annex
II, with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions.
-------------
a. Periodic Distributions payable on each Security will be fixed at a
rate per annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of
$[ ] per Security, such rate being the rate of interest payable on the
Subordinated Notes to be held by the Property Trustee. Distributions in arrears
for more than one quarterly period will bear interest thereon at the
A-1
<PAGE>
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used in these terms includes such periodic cash distributions
and any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Subordinated Notes
held by the Property Trustee. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such a 30-day month.
b. Distributions on the Securities will be cumulative, will accrue
from [ ], 199[ ] and will be payable quarterly in arrears, on [ ], [ ], [ ] and
[ ] of each year, commencing on [ ], 199[ ], except as otherwise described
below. The Debenture Issuer has the right under the Indenture to defer payments
of interest by extending the interest payment period from time to time on the
Subordinated Notes for a period not exceeding 20 consecutive quarterly periods
(each, an "Extension Period") but not beyond the maturity date of the
Subordinated Notes and, as a consequence of such extension, Distributions will
also be deferred. Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate during any such Extension Period. Prior to the termination of
any such Extension Period, the Subordinated Notes Issuer may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarterly
periods. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Subordinated Notes Issuer may commence
a new Extension Period, subject to the above requirements.
c. Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates which payment dates correspond to the interest payment dates on the
Subordinated Notes. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading ["Certain Terms of the
Preferred Securities-- Book Entry-Only Issuance -- The Depository Trust
Company"] in the Prospectus Supplement dated [ ], 199[ ] (the "Prospectus
Supplement") to the Prospectus dated [ ], 199[ ] (as so supplemented the
"Prospectus") of the Trust included in the Registration Statement on Form S-3 of
the Sponsor, the Trust and certain other business trusts. The relevant record
dates for the Common Securities shall be the same record dates as for the
Preferred Securities. If the Preferred Securities shall not continue to remain
in book entry only form, the relevant record dates for the Preferred Securities,
shall conform to the rules of any securities exchange on which the securities
are listed and, if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 60 Business Days before the
relevant payment dates, which payment dates correspond to the interest payment
dates on the Subordinated Notes. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a result of the
Subordinated Notes Issuer having failed to make a payment under the Subordinated
Notes, will cease to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name
A-2
<PAGE>
such Securities are registered on the special record date or other specified
date determined in accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
d. In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, an amount equal to the aggregate of the stated liquidation amount of
$[ ] per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Subordinated Notes
in an aggregate principal amount equal to the aggregate stated liquidation
amount of such Securities, with an interest rate equal to the Coupon Rate of,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, such Securities, shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
---------------------------
a. Upon the repayment of the Subordinated Notes in whole or in part,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Notes so repaid or redeemed, at the redemption price for the Subordinated Notes,
payable in cash (the "Redemption Price"). Holders will be given not less than 30
nor more than 60 days notice of such redemption.
b. If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed Pro Rata and
the Preferred Securities to be redeemed will be as described in Paragraph
4(h)(ii) below.
A-3
<PAGE>
c. The Subordinated Notes are redeemable, in whole or in part, at the
option of the Subordinated Notes Issuer, on or after [ ], 20[ ], at a redemption
price equal to [100%] of the principal amount per Subordinated Notes, plus, in
each case, accrued and unpaid interest thereon at the date of the redemption for
the Debentures.
d. If, at any time, a Tax Event or an Investment Company Event (each
as defined below, and each a "Special Event") shall occur and be continuing, the
Subordinated Note Issuer shall have the right, upon not less than 30 nor more
than 60 days notice, to redeem the Subordinated Notes in whole or in part, for
cash within 90 days following the occurrence of such Special Event, at a
redemption price equal to [100%] of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption and,
following such redemption, Securities with an aggregate liquidation amount equal
to the aggregate principal amount of the Subordinated Notes so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata basis in accordance
with paragraph 8 hereof. The Common Securities will be redeemed Pro Rata with
the Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities will have priority over the Common
Securities with respect to payment of the Redemption Price.
e. The following terms used herein shall be defined as follows:
(i) "Investment Company Event" means that the Trust shall have
received an opinion of counsel experienced in practice under the Investment
Company Act that, as a result of the occurrence of a change in law or regulation
or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is or
will be considered an Investment Company which is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of the Prospectus Supplement.
(ii) "Tax Event" means that the Trust shall have received an
opinion of counsel experienced in such matters to the effect that on or after
the date of the Prospectus Supplement, as a result of (a) any amendment to, or
change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority therefore or therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, which amendment or
change is enacted, promulgated, issued, proposed or announced or which
interpretation or pronouncement is issued, proposed or announced or which action
is taken, in each case on or after the date of the Prospectus Supplement, there
is more than an insubstantial risk that (i) the Trust is or will be within 90
days of the date of such opinion, subject to United States federal income tax
with respect to interest accrued or received on the Subordinated Notes, (ii) the
Trust is, or will be within 90 days of the date of such opinion, subject to more
than a de minimis amount of taxes, duties or other governmental charges, or
(iii) interest payable by the Subordinated Note Issuer to the Trust on the
Subordinated Notes is not, or within 90 days of the date of such opinion will
not be, deductible, in whole or in part, by the Debenture Issuer for United
States federal income tax purposes.
A-4
<PAGE>
f. The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
g. In the event that the Sponsor makes the election referred to in
Section 8.1(a)(v) of the Declaration, the Regular Trustees shall dissolve the
Trust and, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, cause Subordinated Notes, held by the Property Trustee, having an
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on and having the same record date for payment, as the Securities,
to be distributed to the Holders of the Securities in liquidation of such
Holders' interests in the Trust on a Pro Rata basis in accordance with paragraph
8 hereof. On and from the date fixed by the Regular Trustees for any
distribution of Subordinated Notes and dissolution of the Trust: (i) the
Securities will no longer be deemed to be outstanding, (ii) The Depository Trust
Company (the "Depository") or its nominee (or any successor Clearing Agency or
its nominee), as the record Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Subordinated
Notes to be delivered upon such distribution and (iii) any certificates
representing Securities, except for certificates representing Preferred
Securities held by the Depository or its nominee (or any successor Clearing
Agency or its nominee), will be deemed to represent beneficial interests in the
Subordinated Notes having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the Coupon Rate
of, and accrued and unpaid interest equal to accrued and unpaid Distributions on
such Securities until such certificates are presented to the Subordinated Notes
Issuer or its agent for transfer or reissue. If the Subordinated Notes are
distributed to Holders of the Securities, pursuant to the terms of the
Indenture, the Subordinated Notes Issuer will use its best efforts to have the
Subordinated Notes listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities were listed immediately prior to the
distribution of the Subordinated Notes.
h. Redemption or Distribution Procedures.
-------------------------------------
(i) Notice of any redemption of, or notice of distribution of
Subordinated Notes in exchange for the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to be
redeemed or exchanged not fewer than 30 nor more than 60 days before the date
fixed for redemption or exchange thereof which, in the case of a redemption,
will be the date fixed for redemption of the Subordinated Notes. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph 4(h)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed, by
first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Securities
at the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed will be redeemed Pro Rata from
each Holder of
A-5
<PAGE>
Securities, it being understood that, in respect of Preferred Securities
registered in the name of and held of record by DTC (or any successor Clearing
Agency) or any other nominee, the distribution of the proceeds of such
redemption will be made to each Clearing Agency Participant (or person on whose
behalf such nominee holds such securities) in accordance with the procedures
applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice which notice may only be issued if the
Subordinated Notes are redeemed as set out in this paragraph 4 (which notice
will be irrevocable) then (A) while the Preferred Securities are in book entry
only form, with respect to the Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Subordinated Notes Issuer
has paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Subordinated Notes, the Property Trustee
will deposit irrevocably with the Depository (or successor Clearing Agency)
funds sufficient to pay the Redemption Price with respect to the Preferred
Securities and will give the Depository irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred Securities, and (B)
if the Preferred Securities are issued in definitive form, with respect to the
Preferred Securities, and with respect to the Common Securities, provided that
the Subordinated Notes Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Subordinated Notes, the Property Trustee will pay the Redemption Price to the
Holders of such Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
date of such deposit, or on the redemption date, as applicable, Distributions
will cease to accrue on the Securities so called for redemption and all rights
of Holders of such Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer of
any Securities which have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of Securities is improperly withheld
or refused and not paid either by the Property Trustee or by the Sponsor as
guarantor pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue, from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred Securities,
the Depository or its nominee (or any successor Clearing Agency or its nominee)
if the Global Certificates have been issued or if Definitive Preferred Security
Certificates have been issued, to the Holder thereof, and (B) in respect of the
Common Securities, to the Holder thereof.
A-6
<PAGE>
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), provided the
acquiror is not the Holder of the Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
5. Voting Rights Applicable to Preferred Securities.
------------------------------------------------
a. Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
b. Subject to the requirements of the third to last sentence of this
paragraph, the Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, and place of conducting
any proceeding for any remedy available to the Subordinated Notes Trustee, or
exercising any trust or power conferred on the Subordinated Notes Trustee with
respect to the Subordinated Notes, (ii) waiving any past default and its
consequences that is waivable under Section 5.13 of the Indenture, (iii)
exercising any right to rescind or annul a declaration that the principal of all
the Subordinated Notes shall be due and payable or (iv) consenting to any
amendment, modification or termination of the Indenture or the Subordinated
Notes where such consent shall be required, provided, however, that where a
consent under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of Subordinated Notes affected
thereby (a "Super Majority"), the Property Trustee may only give such consent or
take such action at the direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Subordinated Notes
outstanding. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Subordinated Notes Trustee
as set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Preferred Securities under this
paragraph unless the Property Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
If the Property Trustee fails to enforce its rights under the Declaration, any
Holder of Preferred Securities may institute a legal proceeding directly against
any Person to enforce the Property Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Property Trustee or any
other Person. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing with respect to the Preferred Securities and such event is
attributable to the failure of the Subordinated Notes Issuer to pay interest,
premium, if any, or principal on the Subordinated Notes on the date such
interest, premium, if any, or principal is otherwise payable (or in the case of
redemption, on the redemption date), then a holder of Preferred Securities may
institute a Direct Action for enforcement of payment to such holder of the
principal of, premium, if any, or interest on, Subordinated Notes having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Subordinated Notes. Notwithstanding any payments made to such Holder of
Preferred
A-7
<PAGE>
Securities by the Subordinated Notes Issuer in connection with a Direct Action,
the Subordinated Notes Issuer shall remain obligated to pay the principal of,
premium, if any, and interest on the Subordinated Notes held by the Trust or the
Property Trustee, and the Subordinated Notes Issuer shall be subrogated to the
rights of the Holder of such Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payment made by the Subordinated
Notes Issuer to such Holder in any Direct Action. Except as provided in the
preceding sentences, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Subordinated
Notes.
c. Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
d. No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Subordinated Notes in accordance with the Declaration and the
terms of the Securities.
e. Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights With Respect to Common Securities.
-----------------------------------------------
a. Except as provided under paragraphs 6(b), 6(c) and 7 and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
b. The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
c. Subject to Section 2.6 of the Declaration and only after all Events
of Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Subordinated Notes
Trustee, or exercising any trust or power conferred
A-8
<PAGE>
on the Subordinated Notes Trustee with respect to the Subordinated Notes, (ii)
waiving any past default and its consequences that is waivable under Section 513
of the Indenture, or (iii) exercising any right to rescind or annul a
declaration that the principal of all the Subordinated Notes shall be due and
payable, provided, however, that where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority in
principal amount of Debentures affected thereby (a "Super Majority"), the
Property Trustee may only give such consent or take such action at the direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Subordinated Notes outstanding. Pursuant to this
paragraph 6(c), the Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Common Securities. Other
than with respect to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Subordinated Notes Trustee as
set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Common Securities under this paragraph
unless the Property Trustee has obtained an opinion of tax counsel to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Property Trustee fails to enforce its rights under the Declaration, any Holder
of Common Securities may institute a legal proceeding directly against any
Person to enforce the Property Trustee's rights under the Declaration, without
first instituting a legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing with respect to the Common Securities and such event is
attributable to the failure of the Subordinated Notes Issuer to pay interest or
principal on the Subordinated Notes on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Common Securities may institute a proceeding for enforcement of
payment to such holder of the principal of, or interest on, Subordinated Notes
having a principal amount equal to the aggregate liquidation amount of the
Common Securities of such holder on or after the respective due date specified
in the Subordinated Notes.
d. Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
e. No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Subordinated Notes in accordance with the Declaration and the terms of the
Securities.
A-9
<PAGE>
7. Amendments to Declaration and Indenture.
---------------------------------------
a. In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.1 or Section 3.14 of the Declaration, then the Holders of outstanding
Securities as a class, will be entitled to vote on such amendment or proposal
(but not on any other amendment or proposal) and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a single
class; provided, however, that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
b. In the event the consent of the Property Trustee as the holder of
the Subordinated Notes is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Subordinated
Notes, the Property Trustee shall request the direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the Holders of greater than a majority in aggregate principal
amount of the Debentures (a "Super Majority"), the Property Trustee may only
give such consent at the direction of the Holders of at least the proportion in
liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding;
provided, further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Securities under this
paragraph 7(b) unless the Property Trustee has been furnished an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action.
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder of
Securities according to the aggregate liquidation amount of the Securities held
by the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
A-10
<PAGE>
9. Ranking.
-------
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing under the Indenture in respect of the Subordinated
Notes held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive rights to subscribe
for any additional Securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge on written
request to the Trust at its principal place of business.
A-11
<PAGE>
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
Certificate Number _______ Number of Preferred Securities _______
CUSIP NO.__________
Certificate Evidencing Preferred Securities
of
OXY CAPITAL TRUST [ ]
[ ]% Preferred Securities
(liquidation amount $[ ] per Preferred Security)
OXY CAPITAL TRUST [ ], a business trust formed under the laws of the State
of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is
the registered owner of preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the [ ]% Preferred
Securities (liquidation amount $[ ] per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of [ ], 199[ ], as the same may be amended from time to time
(the "Declaration") including the designation of the terms of the Preferred
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the respective meanings given them in the
Declaration. The Holder is entitled to the benefits of the Preferred Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
A-12
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Subordinated Notes as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Subordinated
Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate this ______ day
of ____________, 199[ ].
________________________ as Trustee
________________________ as Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the Amended and Restated Declaration
of Trust described herein.
Dated: ______________________
THE BANK OF NEW YORK, as Property Trustee
By: __________________________
Name:
Title:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
-------------------------------------------------------
(Insert assignee's social security or tax
identification number)
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
A-13
<PAGE>
Date: Signature:
------------- ------------------------------------------
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
Signature Guarantor:
--------------------------------
A-14
<PAGE>
Annex II
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.
Certificate Number _______ Number of Common Securities _______
Certificate Evidencing Common Securities
of
OXY CAPITAL TRUST [ ]
Common Securities.
(liquidation amount $[ ] per Common Security)
OXY CAPITAL TRUST [ ], a business trust formed under the laws of the State
of Delaware (the "Trust"), hereby certifies that Occidental Petroleum
Corporation (the "Holder") is the registered owner of common securities of the
Trust representing undivided beneficial interests in the assets of the Trust
designated the [ ]% Common Securities (liquidation amount $[ ] per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of [ ], 199[ ], as the same
may be amended from time to time (the "Declaration") including the designation
of the terms of the Common Securities as set forth in Exhibit A to the
Declaration. Capitalized terms used herein but not defined shall have the
respective meanings given them in the Declaration. The Holder is entitled to the
benefits of the Common Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Common Securities Guarantee
and the Indenture to a Holder without charge upon written request to the Trust
at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Subordinated Notes as indebtedness and the Common Securities
as evidence of indirect beneficial ownership in the Subordinated Notes.
A-15
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of [ ], 199[ ].
________________________ as Trustee
________________________ as Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
-------------------------------------------------------
(Insert assignee's social security or tax
identification number)
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: Signature:
----------- ------------------------------------------
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
Signature Guarantor:
--------------------------------
A-16
<PAGE>
EXHIBIT 4.6
================================================================================
OCCIDENTAL PETROLEUM CORPORATION
TO
THE BANK OF NEW YORK, TRUSTEE
------------------------------
INDENTURE
DATED AS OF [ ], 1999
------------------------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
OCCIDENTAL PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
(S)310(a)(1)..................................... 608
(a)(2)..................................... 608
(a)(3)..................................... Not Applicable
(a)(4)..................................... Not Applicable
(a)(5)..................................... 608
(b)........................................ 608
610
(c)........................................ Not Applicable
(S)311(a)........................................ 612
(b)........................................ 612
(c)........................................ Not Applicable
(S)312(a)........................................ 701
702(a)
(b)........................................ 702(b)
(c)........................................ 702(b)
(S)313(a)........................................ 704, 1009
(b)........................................ Not Applicable
(c)(1)..................................... 102
(c)(2)..................................... 102
(c)(3)..................................... Not Applicable
(d)........................................ Not Applicable
(e)........................................ 102
(f)........................................ Not Applicable
(S)315(a)........................................ 601(a)
(b)........................................ 602
(c)........................................ 601(b)
(d)........................................ 601(c)
(d)(1)..................................... 601(c)(1)
(d)(2)..................................... 601(c)(2)
(d)(3)..................................... 601(c)(3)
(e)........................................ 514
(S)316(a)........................................ 101
(a)(1)(A).................................. 512
(a)(1)(B).................................. 513
(a)(2)..................................... Not Applicable
(b)........................................ 508
(c)........................................ 104(f)
(S)317(a)(1)..................................... 503
(a)(2)..................................... 504
(b)........................................ 1003
(S)318(a)........................................ 107
</TABLE>
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties.................................................................... 1
Recitals of the Company.................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application.................... 1
SECTION 101. Definitions.......................................... 1
Act........................................... 2
Affiliate..................................... 2
Authorized Newspaper.......................... 2
Bearer Security............................... 2
Board of Directors............................ 2
Board Resolution.............................. 2
Business Day.................................. 2
Cedel S.A..................................... 3
Commission.................................... 3
Company....................................... 3
Company Request and Company Order............. 3
Corporate Trust Office........................ 3
corporation................................... 3
coupon........................................ 3
Defaulted Interest............................ 3
Depositary.................................... 3
Discount Security............................. 3
Dollar" or "$................................. 3
Euro-Clear.................................... 3
Event of Default.............................. 4
Holder........................................ 4
Indebtedness.................................. 4
Indenture..................................... 4
interest...................................... 4
Interest Payment Date......................... 4
Maturity...................................... 4
Non-United States Holder...................... 4
Officers' Certificate......................... 5
Opinion of Counsel............................ 5
Outstanding................................... 5
Oxy Capital Trust............................. 6
</TABLE>
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<TABLE>
<S> <C>
Paying Agent.................................. 6
Periodic Offering............................. 6
Person........................................ 6
Place of Payment.............................. 6
Predecessor Security.......................... 6
principal..................................... 6
Redemption Date............................... 6
Redemption Price.............................. 6
Registered Security........................... 7
Regular Record Date........................... 7
Responsible Officer........................... 7
Securities.................................... 7
Security Register and Security Registrar...... 7
Senior Indebtedness........................... 7
Special Record Date........................... 7
Stated Maturity............................... 7
Subsidiary.................................... 7
Trustee....................................... 7
Trust Indenture Act........................... 7
United States................................. 8
Vice President................................ 8
SECTION 102. Compliance Certificates and Opinions................. 8
SECTION 103. Form of Documents Delivered to Trustee............... 8
SECTION 104. Acts of Holders...................................... 9
SECTION 105. Notices, Etc., to Trustee and Company................ 11
SECTION 106. Notice to Holders; Waiver............................ 11
SECTION 107. Conflict with Trust Indenture Act.................... 12
SECTION 108. Effect of Headings and Table of Contents............. 12
SECTION 109. Successors and Assigns............................... 12
SECTION 110. Separability Clause.................................. 12
SECTION 111. Benefits of Indenture................................ 12
SECTION 112. Governing Law........................................ 13
SECTION 113. Legal Holidays....................................... 13
SECTION 114. Language of Notices, Etc............................. 13
ARTICLE TWO
Security Form.............................................................. 13
SECTION 201. Forms Generally...................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication...... 14
SECTION 203. Securities in Global Form............................ 14
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE THREE
The Securities............................................................. 15
SECTION 301. Title and Terms...................................... 15
SECTION 302. Denominations........................................ 18
SECTION 303. Execution, Authentication, Delivery and Dating....... 18
SECTION 304. Temporary Securities................................. 21
SECTION 305. Registration, Registration of Transfer and Exchange.. 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and
Coupons.............................................. 26
SECTION 307. Payment of Interest; Interest Rights Preserved....... 27
SECTION 308. Persons Deemed Owners................................ 29
SECTION 309. Cancellation......................................... 29
SECTION 310. Computation of Interest.............................. 30
ARTICLE FOUR
Satisfaction and Discharge................................................. 30
SECTION 401. Satisfaction and Discharge of Indenture.............. 30
SECTION 402. Application of Trust Money........................... 32
ARTICLE FIVE
Remedies................................................................... 32
SECTION 501. Events of Default.................................... 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment... 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee........................................... 35
SECTION 504. Trustee May File Proofs of Claim..................... 35
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons................................ 36
SECTION 506. Application of Money Collected....................... 36
SECTION 507. Limitation on Suits.................................. 37
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest......................................... 38
SECTION 509. Restoration of Rights and Remedies................... 38
SECTION 510. Rights and Remedies Cumulative....................... 38
SECTION 511. Delay or Omission Not Waiver......................... 38
SECTION 512. Control by Holders of Securities..................... 39
SECTION 513. Waiver of Past Defaults.............................. 39
SECTION 514. Undertaking for Costs................................ 39
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
SECTION 515. Waiver of Usury, Stay or Extension Laws.............. 40
ARTICLE SIX
The Trustee................................................................ 40
SECTION 601. Certain Duties and Responsibilities.................. 40
SECTION 602. Notice of Defaults................................... 41
SECTION 603. Certain Rights of Trustee............................ 42
SECTION 604. Not Responsible for Recitals or Issuance of
Securities........................................... 43
SECTION 605. May Hold Securities.................................. 43
SECTION 606. Money Held in Trust.................................. 43
SECTION 607. Compensation and Reimbursement....................... 43
SECTION 608. Corporate Trustee Required; Eligibility.............. 44
SECTION 609. Resignation and Removal; Appointment of Successor.... 44
SECTION 610. Acceptance of Appointment by Successor............... 46
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business............................................. 47
SECTION 612. Preferential Collection of Claims Against Company.... 47
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company.......................... 47
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.............................................. 47
SECTION 702. Preservation of Information; Communications to
Holders.............................................. 47
SECTION 703. Reports by Trustee................................... 47
SECTION 704. Reports by Company................................... 47
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease....................... 49
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms................................................ 49
SECTION 802. Successor Corporation Substituted.................... 50
ARTICLE NINE
Supplemental Indentures.................................................... 50
SECTION 901. Supplemental Indentures Without Consent of Holders... 50
SECTION 902. Supplemental Indentures with Consent of Holders...... 51
</TABLE>
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<TABLE>
<S> <C>
SECTION 903. Execution of Supplemental Indentures................. 52
SECTION 904. Effect of Supplemental Indentures.................... 53
SECTION 905. Conformity with Trust Indenture Act.................. 53
SECTION 906. Reference in Securities to Supplemental Indentures... 53
ARTICLE TEN
Covenants.................................................................. 53
SECTION 1001. Payment of Principal and Interest.................... 53
SECTION 1002. Maintenance of Office or Agency...................... 54
SECTION 1003. Money for Security Payments to Be Held in Trust...... 55
SECTION 1004. Corporate Existence.................................. 56
SECTION 1005. (Intentionally Omitted).............................. 57
SECTION 1006. (Intentionally Omitted).............................. 57
SECTION 1007. (Intentionally Omitted).............................. 57
SECTION 1008. (Intentionally Omitted).............................. 57
SECTION 1009. Statement by Officer as to Compliance; Notice of
Certain Events....................................... 57
SECTION 1010. Waiver of Certain Covenants.......................... 57
SECTION 1011. Additional Amounts................................... 57
ARTICLE ELEVEN
Redemption of Securities................................................... 58
SECTION 1101. Applicability of Article............................. 58
SECTION 1102. Election to Redeem; Notice to Trustee................ 58
SECTION 1103. Selection by Trustee of Securities to be Redeemed.... 59
SECTION 1104. Notice of Redemption................................. 59
SECTION 1105. Deposit of Redemption Price.......................... 60
SECTION 1106. Securities Payable on Redemption Date................ 60
SECTION 1107. Securities Redeemed in Part.......................... 61
ARTICLE TWELVE
Sinking Funds.............................................................. 61
SECTION 1201. Applicability of Article............................. 61
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities........................................... 62
SECTION 1203. Redemption of Securities for Sinking Fund............ 62
</TABLE>
v
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<TABLE>
<S> <C>
ARTICLE THIRTEEN
Meetings of Holders of Securities.......................................... 62
SECTION 1301. Purposes for Which Meetings May Be Called............ 62
SECTION 1302. Call, Notice and Place of Meetings................... 63
SECTION 1303. Persons Entitled to Vote at Meetings................. 63
SECTION 1304. Quorum; Action....................................... 63
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................. 64
SECTION 1306. Counting Votes and Recording Action of Meetings...... 65
ARTICLE FOURTEEN
SUBORDINATION.............................................................. 66
SECTION 1401. Securities Subordinate to Senior Indebtedness........ 66
SECTION 1402. Payment Over of Proceeds upon Dissolution, Etc....... 67
SECTION 1403. Prior Payment to Senior Indebtedness upon
Acceleration of Securities........................... 68
SECTION 1404. Default in Senior Indebtedness....................... 69
SECTION 1405. Payment Permitted if No Default...................... 69
SECTION 1406. Subrogation Rights of Holders of Senior Indebtedness. 69
SECTION 1407. Provision Solely to Define Relative Rights........... 70
SECTION 1408. Trustee to Effectuate Subordination.................. 70
SECTION 1409. No Waiver of Subordination Provisions................ 70
SECTION 1410. Notice to Trustee.................................... 71
SECTION 1411. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................... 72
SECTION 1412. Trustee Not Fiduciary for Holders of Senior
Indebtedness......................................... 72
SECTION 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights..................... 72
SECTION 1414. Article Fourteen Applicable to Paying Agents......... 73
TESTIMONIUM................................................................
SIGNATURE AND SEALS........................................................
ACKNOWLEDGMENTS............................................................
</TABLE>
vi
<PAGE>
INDENTURE, dated as of [ ], 1999, between Occidental Petroleum
---------
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
10889 Wilshire Boulevard, Los Angeles, California 90024, and The Bank of New
York, a New York banking corporation, as trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of one or more series
thereof and the coupons, if any, appertaining thereto, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles,"
<PAGE>
with respect to any computation required or permitted hereunder, shall mean
such accounting principles as are generally accepted in the United States
of America at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Whenever successive publications are
required to be made in an Authorized Newspaper, the successive publications may
be made in the same or in different Authorized Newspapers meeting the foregoing
requirements and, in each case, on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," except as otherwise specified as contemplated by Section
301, when used with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
2
<PAGE>
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation or other Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation or other Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order delivered to the Trustee and signed in the name of the Company
by its Chairman of the Board, its President or one of its Vice Presidents and by
one of its other Vice Presidents, its Treasurer, an Assistant Treasurer, its
Secretary, an Assistant Secretary, or, with respect to Sections 303, 304, 305
and 603, any other employee of the Company named in an Officers' Certificate
delivered to the Trustee.
"Corporate Trust Office" means the office maintained by the Trustee at
which, at any particular time, its corporate trust business principally is
administered, which initially shall be 101 Barclay Street, New York, New York
10286.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 301 as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-Clear" means the operator of the Euro-Clear System.
3
<PAGE>
"Event of Default" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means, in the case of a
Registered Security, the Person in whose name the Security is registered in the
Security Register and, in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indebtedness," as applied to a Person, means, as of the date on which
Indebtedness is to be determined and without duplication (i) all obligations
represented by notes, bonds, debentures or similar evidences of indebtedness;
(ii) all indebtedness for borrowed money or for the deferred purchase price of
property or services other than, in the case of any such deferred purchase
price, on normal trade terms; (iii) all rental obligations as lessee under
leases which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases; and (iv) all Indebtedness of
others for the payment of which such Person is responsible or liable as obligor
or guarantor.
"Indenture" means this instrument, as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms (but not defined terms established in an Officers'
Certificate) of one or more particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal or, in the
case of a Discount Security, the principal amount payable upon a declaration of
acceleration pursuant to Section 502, becomes due and payable, as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Non-United States Holder" means any person who, for Federal income tax
purposes, is any person other than (i) a citizen or resident of the United
States, (ii) a corporation or partnership created or organized in the United
States or under the laws of the United States or any state thereof, (iii) an
estate whose income is includable in gross income for United States federal
income tax purposes regardless of its source, or (iv) a trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States persons who have the authority to
control all substantial decisions of the trust.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice President, the Treasurer or an Assistant Treasurer
of the Company, and by one of the other
4
<PAGE>
Vice Presidents, the Treasurer, one of the other Assistant Treasurers, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be reasonably satisfactory
to the Trustee.
"Outstanding," when used with respect to the Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons thereto appertaining;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to the Company and the Trustee that such Securities are held
by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder: (i) the
principal amount of a Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable, as
of the date of such determination, upon acceleration of the Maturity thereof
pursuant to Section 502; (ii) the principal amount of a Security denominated in
a foreign currency or currencies shall be the Dollar equivalent, determined on
the date of original issuance of such Security, of the principal amount (or, in
the case of a Discount Security, the Dollar equivalent, on the date of original
issuance of such Security, of the amount determined as provided in (i) above) of
such Security; and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's
5
<PAGE>
right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Oxy Capital Trust" shall mean each of Oxy Capital Trust I, Oxy Capital
Trust II and Oxy Capital Trust III, each a Delaware business trust, or any other
similar trust, or any partnership or other entity affiliated with the Company
created for the purpose of issuing securities in connection with the issuance of
Securities under this Indenture.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section 301
with respect thereto, are to be determined by the Company, or one or more of the
Company's agents designated in an Officers' Certificate, upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
1002, the principal of and any interest on the Securities of that series are
payable, as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"principal" of a debt security, except as otherwise specifically provided
in this Indenture, means the outstanding principal of the security plus the
premium, if any, of the security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
7
<PAGE>
"Registered Security" means any Security established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer" when used with respect to the Trustee, means any
officer in the corporate trust department of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by any
such officer and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" has the meaning specified in Section 1401.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any issue means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation, association, partnership or other
business entity more than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for the
election of directors or persons performing similar functions, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and in force at the date as of which this instrument is qualified thereunder,
except as provided in Section 905.
7
<PAGE>
"United States" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico) and other areas subject
to its jurisdiction.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, upon the
request of the Trustee, furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (excluding the Trustee's certificate of
disposition pursuant to Section 309 and the annual compliance certificate
pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other
8
<PAGE>
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
If Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Thirteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
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(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depositary, wherever situated, as depositary, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (2) such
Bearer Security is produced to the Trustee by some other Person, (3) such Bearer
Security is surrendered in exchange for a Registered Security or (4) such Bearer
Security is no longer Outstanding. The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding the same, may also
be proved in any other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to an Officers' Certificate delivered to the
Trustee, fix in advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. Any such
record date, if so fixed, may vary from that specified in Section 316(c) of the
Trust Indenture Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Outstanding
Securities or Outstanding Securities of a series, as the case may be, have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities or Outstanding Securities of the series, as the case may
be, shall be computed as of such record date; provided, that no such
authorization, agreement or consent by the Holders on the record date shall be
deemed effective, unless such request, demand, authorization, direction, notice,
consent, waiver or other Act shall become effective pursuant to the provisions
of Clause (a) of this Section 104 not later than six months after the record
date.
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SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it, Attention: Treasurer, at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities, if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given
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by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers, or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by operation of Trust Indenture Act Section 318(c), the imposed duties
shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Except as provided in the last paragraph of Section 401, nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders of
Securities, any benefits or any legal or equitable right, remedy or claim under
this Indenture.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the internal laws of the State of New York including, without
limitation, Section 5-1401 of the New York General Obligations Law.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or, in the case of any Security which is subject to
redemption or repurchase by the Company at the option of the Holder, the date
fixed for such redemption or repayment, shall not be a Business Day at any Place
of Payment, then, except as may otherwise be provided with respect to the
Securities of any series pursuant to Section 301, payment of interest or
principal need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment, with the same
force and effect as if made on the Interest Payment Date or Redemption Date or
at the Stated Maturity or the date fixed for such redemption or repurchase, and
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity or date for such redemption or
repurchase, as the case may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
ARTICLE TWO
Security Form
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and the coupons, if any, appertaining thereto, of each
series shall be in such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or coupons, as evidenced by
their execution of the Securities or coupons. If the forms of the Securities or
coupons of any series are established by an Officers' Certificate, such
Officers' Certificate shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner, provided, that such method is permitted by the
rules of any securities exchange on which such Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:_________________________________
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in temporary or definitive global
form, as specified as contemplated by Section 301, then, notwithstanding Clause
(10) of Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner, and upon instructions given by such Person or Persons, as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in global form in the manner, and upon instructions given by the Person
or Persons, specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement, or delivery or
redelivery, of a Security in global form shall be in writing, but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
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The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form, if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form, together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby and the written statement contemplated by the last sentence of Section
303.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and, if the
Securities of such series are subject to redemption or repurchase by the
Company at the option of the Holders thereof, except for Securities of such
series authenticated and delivered upon any such repurchase or redemption
of any such Security in part, and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
may be represented initially by a Security in temporary or definitive
global form and, if so, the initial Depositary with respect to any such
temporary or definitive global Security, and, if other than as provided in
Section 304 or Section 305, as applicable, whether, and the circumstances
under which, beneficial owners of interests in any such temporary or
definitive global Security may exchange such interests for Securities of
such series of like tenor of any authorized form and denomination and the
Authorized Newspapers for publication of notices to holders of Bearer
Securities;
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(4) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, and the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and any
additional or different terms with respect to the payment of interest on
temporary or definitive global Securities;
(5) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method of
calculating such rate or rates, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which, the
price or prices at which and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable, if other than
denominations of $5,000 and $100,000;
(11) the currency or currencies, including composite currencies or
currency units, in which Securities of the series may be denominated or in
which payment of the principal of and any interest on the Securities of the
series shall be payable, if other than the currency
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of the United States of America, and if so, whether the Securities of the
series may be satisfied and discharged other than as provided in Article
Four;
(12) if the amounts of payments of principal of and any interest on
the Securities of the series are to be determined with reference to an
index, formula or other method, or based on a coin or currency other than
that in which the Securities are stated to be payable, the manner in which
such amounts shall be determined and the calculation agent, if any, with
respect thereto;
(13) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the Company will pay additional amounts on any of the
Securities and coupons, if any, of the series to any Holder who is a Non-
United States Holder (including any modification in the definition of such
term), in respect of any tax, assessment or governmental charge withheld or
deducted, under what circumstances, and with what procedures and
documentation, the Company will pay such additional amounts, whether such
additional amounts will be treated as interest or principal pursuant to
this Indenture, and whether the Company will have the option to redeem such
Securities rather than pay additional amounts (and the terms of any such
option);
(15) if other than as defined in Section 101, the meaning of "Business
Day" when used with respect to any Securities of the series;
(16) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the forms and terms of such certificates, documents or
conditions;
(17) the right, if any, of the Company to defer payments of interest
by extending the interest payment periods by a period of time to be
determined by the Company, the Interest Payment Dates on which such
interest shall be payable and whether and under what circumstances
additional interest on amounts deferred shall be payable;
(18) any addition to, or modification or deletion of, any Event of
Default, covenant of the Company or other term or provision specified in
this Indenture with respect to Securities of the series;
(19) the terms, if other than those set forth in Article Fourteen, on
which the Securities of the series will be subordinate to other
Indebtedness of the Company; and
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(20) any other terms of the series, whether or not consistent with the
other provisions of this Indenture.
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical, except as to
denomination, the rate or rates of interest, if any, the Stated Maturity, the
date from which interest, if any, shall accrue, the other financial terms
thereof and except as may otherwise be provided in or pursuant to an Officers'
Certificate pursuant to this Section 301 or in any indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or the
Officers' Certificate or supplemental indenture setting forth or establishing
the terms of such series may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 303.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in denominations of $5,000 and
$100,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, one of its Vice Presidents, its Treasurer, or one
of its Assistant Treasurers under its corporate seal (or a facsimile thereof)
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the actual or facsimile signature of the
Treasurer or an Assistant Treasurer of the Company.
Securities and coupons, if any, appertaining thereto, bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals, or
any of them, have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities; and the Trustee, in accordance with such Company
Order, shall authenticate and deliver such Securities; provided, however, that,
with respect to Securities of a series subject to a Periodic Offering, (a) such
Company Order may be delivered by the Company to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and delivery, (b)
the Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not exceeding
the aggregate principal amount established for such series, pursuant to a
Company Order or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the rate or rates of
interest, if any, the Stated Maturity or Maturities, the original issue date or
dates, the redemption provisions, if any, and any other terms of Securities of
such series shall be determined by a Company Order or pursuant to such
procedures and (d) if provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company, or the Company's duly authorized agent or agents
designated in an Officers' Certificate, which oral instructions shall be
promptly confirmed in writing; and provided, further, that, in connection with
its original issuance, no Bearer Security or coupon shall be mailed or otherwise
delivered to any Person who is not a Non-United States Holder or to any location
in the United States. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security, unless all appurtenant coupons for
interest then matured have been detached and cancelled.
In authenticating Securities, the form or terms of which have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 201 and 301, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(a) that the form and terms of such Securities, including any coupons,
have been duly authorized by the Company and established in conformity with
the provisions of this Indenture; and
(b) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once, at or prior to the time of the first authentication of
Securities of such series, and that the Opinion of Counsel above may state:
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(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 301, as the case may be) will have been, duly authorized by the
Company and established in conformity with the provisions of this
Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture and (3) issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series, unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
Notwithstanding the provisions of Section 301 and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Registered Security shall be dated the date of its authentication;
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security (including a Bearer Security represented by a temporary global
Security) shall be dated as of the date of original issuance of the first
Security of such series to be issued.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a
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certificate of authentication substantially in the form provided for herein,
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form, with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of Securities represented by a temporary global Security
(which shall be exchanged in accordance with the provisions of the three
succeeding paragraphs), if temporary Securities for some or all of the
Securities of any series are issued, the Company will cause definitive
Securities representing such Securities to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities shall be exchangeable for such definitive Securities of like tenor
upon surrender of such temporary Securities at any office or agency of the
Company designated pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute, and the Trustee shall authenticate and
deliver in exchange therefor, a like principal amount of definitive Securities
of the same series and of like tenor of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Unless otherwise specified as contemplated by Section 301, if Bearer
Securities of any series are represented by a Security in temporary global form,
any such temporary global Security shall be delivered to the Depositary for the
benefit of Euro-clear or Cedel S.A., for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
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Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of the same series, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities of the same series and of like tenor without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of such temporary
global Security, an equal aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
definitive bearer form or registered form, or shall be represented by a
definitive global Security, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof.
Unless otherwise specified in any such temporary global Security, the
interest of a beneficial owner of Securities of a series represented by such
temporary global Security shall be exchanged for definitive Securities of the
same series and of like tenor following the Exchange Date, when the account
holder instructs Euro-clear or Cedel S.A., as the case may be, to request such
exchange on his behalf and delivers to Euro-clear or Cedel S.A., as the case may
be, any certificate specified as contemplated by Section 301. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like, in the event that such Person
does not take delivery of such definitive Securities in person at the offices of
Euro-clear or Cedel S.A.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
representing a series of Bearer Securities on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euro-clear and Cedel S.A. on such Interest Payment Date, upon
delivery by Euro-clear and Cedel S.A. to the Trustee of any certificate
specified as contemplated by Section 301, for credit, without further interest
on or after such Interest Payment Date, to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euro-clear or Cedel S.A.,
as the case may be, any certificate specified as contemplated by Section 301.
SECTION 305. Registration, Registration of Transfer and Exchange.
(1) The Company shall cause to be kept, at one of its offices or agencies
maintained pursuant to Section 1002, a register for the Securities accessible to
the Trustee (the register
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maintained in such office or agency designated pursuant to Section 1002 being
herein sometimes collectively referred to as the "Security Register"), in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
(2) Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose in a Place of Payment, the Company shall execute, and the Trustee or a
duly appointed co-authenticating agent shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series and of any authorized denominations, of a like
aggregate principal amount and tenor.
(3) Notwithstanding any other provisions (other than the provisions set
forth in the seventh and eighth paragraphs) of this Section, a Security in
global form representing all or a portion of the Securities of a series may not
be transferred, except as a whole by the Depositary for such series to a nominee
of such Depositary, or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary, or by such Depositary or any such nominee to
a successor Depositary for such series or a nominee of such successor
Depositary.
(4) At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount, terms and tenor, upon
surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. Bearer Securities may not
be issued in exchange for Registered Securities.
(5) At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount, terms and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment, in
funds acceptable to the Company and the Trustee, in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States.
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Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and terms and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(6) Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(7) If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, or if such Depositary shall cease to be eligible to
act as such in respect of the Securities of such series, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice, the Company will
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive form, in an aggregate principal
amount equal to the principal amount of the Security or Securities in global
form representing such series, in exchange for such Security or Securities in
global form in accordance with the instructions, if any, of the Depositary.
(8) The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event, or if an Event of Default with respect to the Securities of such series
shall have occurred and shall be continuing, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form, and in an aggregate principal amount equal to
the principal amount of the Security or Securities in global form representing
such series, in exchange for such Security or Securities in global form in
accordance with the instructions, if any, of the Depositary.
(9) Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 301, any definitive
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a definitive global Security are entitled
to exchange such interests for definitive Securities of such series and of like
principal amount and tenor but of another authorized form and denomination, as
specified as
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contemplated by Section 301, then, without unnecessary delay, but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such definitive global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such definitive global Security shall be
surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such definitive global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
definitive global Security to be exchanged, which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that
notwithstanding the last paragraph of this Section 305, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that in connection with its original
issuance, no Bearer Security or coupon delivered in exchange for a portion of a
definitive global Security shall be mailed or otherwise delivered to any Person
that is not a Non-United States Holder or to any location in the United States.
If a Registered Security is issued in exchange for any portion of a definitive
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such definitive global Security is
payable in accordance with the provisions of this Indenture.
(10) Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
All cancelled Securities and coupons held by the Trustee shall be disposed of by
the Trustee in accordance with its customary practice and a certificate of such
disposition delivered to the Company, unless the Company directs that such
cancelled Securities be returned to it. Registered Securities issued in exchange
for a Security in global form pursuant to this Section 305 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Registered Securities to the persons in whose names such Securities
are so registered.
(11) All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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(12) Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(13) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer, other
than exchanges upon the Company's repurchase or redemption of any Securities in
part at the option of the Holders thereof not involving any transfer, and other
than exchanges of global Securities (or portions thereof) for Securities in
definitive form in accordance with Section 305.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
ninth paragraph of this Section 305) at the close of business on (A) if
Securities of the series are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if Securities of the
series are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption,
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, terms and principal amount, provided that such
Registered Security shall be simultaneously surrendered for redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, a new
Security of the same series of like tenor and principal amount and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute, and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost
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or stolen), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of and any interest on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupons, if any, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and any such new
Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
issue and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date, and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for
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such Bearer Security, but will be payable only to the Holder of such coupon when
due in accordance with the provisions of this Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities, at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for or in lieu of, any other
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Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of and (except as otherwise specified as contemplated by Section 301
and subject to Section 305 and Section 307) interest on such Registered Security
and for all other purposes whatsoever, whether or not such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon, as the case may be, for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Registered Securities and matured coupons so delivered
shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured
coupons so delivered shall be held by the Trustee and, upon instruction by a
Company Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tenor and terms or the related coupons pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
or reissuance shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever
(including Securities received by the Company in exchange or payment for other
securities of the Company), and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
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all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted in the form
of Securities for any particular series or as permitted pursuant to the terms of
this Indenture. All cancelled Securities and coupons held by the Trustee may be
disposed of and certification of their disposition delivered to the Company,
unless by a Company Order the Company shall direct that such Securities be
returned to it. Any cancelled Securities not disposed of shall be returned to
the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, (i) interest on any Securities which bear interest at a fixed
rate shall be computed on the basis of a 360-day year of twelve 30-day months
and (ii) interest on any Securities which bear interest at a variable rate shall
be computed on the basis of the actual number of days in an interest period
divided by 360.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
Except as otherwise specified as contemplated by Section 301, this
Indenture, upon a Company Request, shall cease to be of further effect as to all
Outstanding Securities or all Outstanding Securities of any series, as the case
may be (except as to (i) remaining rights of registration of transfer,
substitution and exchange of Securities or Securities of such series, as the
case may be, (ii) rights hereunder of Holders to receive payment of principal of
and interest on all Outstanding Securities or all Outstanding Securities of such
series, as the case may be, at the Stated Maturity thereof or, if any such
Securities have been or, pursuant to clause (1)(B)(ii) of this Section 401, are
to be called for redemption, at the applicable Redemption Date thereof and any
other rights of the Holders of all Outstanding Securities or all Outstanding
Securities of such series, as the case may be, as beneficiaries hereof with
respect to the amounts deposited with the Trustee under this Section 401, (iii)
the rights and the obligations of the Company or the Trustee under Sections 304,
305, 306, 1002 and 1003 and the immunities of the Trustee hereunder and the
obligations of the Company to the Trustee under Section 607 and (iv) the
obligation, if any, of the Company to pay additional amounts in respect of any
such Securities as contemplated by Sections 301 and 1011, all of which shall
survive), and the Company shall be deemed to have paid and discharged its entire
indebtedness on all the Outstanding Securities or all Outstanding Securities of
such series, as the case may be, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of the
Company's obligations under this Indenture, when
(1) either
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(A) all Outstanding Securities or all Outstanding Securities of
such series, as the case may be, theretofore authenticated and
delivered, and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities or Securities of such series, as the case may be,
and coupons, if any, which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons, if any, appertaining to Securities or Securities of such
series, as the case may be, called for redemption and maturing after
the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities or Securities of such
series, as the case may be, and coupons, if any, for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) the Company has irrevocably deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the Holders of all
Outstanding Securities, or the Holders of all Outstanding Securities
of such series, as the case may be, money or direct non-callable
obligations of, or non-callable obligations timely payments of which
are guaranteed by, the United States of America, for the payment of
which guarantee or obligation the full faith and credit of the United
States is pledged ("U.S. Government Obligations"), maturing as to
principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such
principal or interest, to pay and discharge at Stated Maturity or, in
the case of any such Securities which have been or, pursuant to clause
(ii) below, are to be called for redemption, on the relevant
Redemption Date, as the case may be, all principal of and interest on
all Outstanding Securities or all Outstanding Securities of such
series, as the case may be. Such irrevocable trust agreement shall
instruct the Trustee (i) to apply such money or the proceeds of said
U.S. Government Obligations to the payment of said principal of and
interest on the Securities or Securities of such series, as the case
may be; and (ii) if the Securities or Securities of such series, as
the case may be, are to be repaid at a Redemption Date and the Company
has not given notice of redemption pursuant to Section 1104 (including
where such Securities are not yet redeemable at the date of deposit)
to give notice of redemption on such Redemption Date pursuant to
Section 1104;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities or Securities of
such series, as the case may be; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Securities or the Securities of such series,
as the case may be, and the payment or discharge of the entire indebtedness
on all Securities or Securities of such series, as the case may be, have
been complied with.
Notwithstanding any such satisfaction and discharge, the Company shall not
be discharged from any payment obligations in respect of the Securities or the
Securities of such series, as the case may be, which are deemed not to be
Outstanding under Clause (iii) of the definition of "Outstanding" if such
obligations continue to be valid obligations of the Company under applicable
law.
SECTION 402. Application of Trust Money.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) deposited with the Trustee
pursuant to the trust agreement referred to in Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities of
the series with respect to which such deposit is made, this Indenture and such
trust agreement, to the payment, either directly or through any Paying Agent
(other than the Company) as the Trustee may determine, of the principal and
interest amounts due at the Stated Maturity or the Redemption Date, as the case
may be, with respect to the Securities of such series to the Persons entitled
thereto.
All money and U.S. Government Obligations (or any other obligations
specified as contemplated by Section 301 with respect to any series of
Securities, the principal of or any interest on which is payable other than in
the currency of the United States of America) so deposited which remain
unclaimed for two years after payment to such Persons has become due and payable
shall be turned over to the Company in accordance with the provisions of Section
1003.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means, with respect to each
series of the Securities individually, any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of any installment of interest upon any
Security of such series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company in accordance with
the terms of the Securities of such series shall not constitute a default
in the payment of interest for this purpose; or
(2) default in the payment of the principal of any Security of such
series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under Federal bankruptcy law
or any other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
Federal bankruptcy law or any other applicable Federal or state law, or the
consent by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action; or
(6) any other event designated as an "Event of Default" with respect
to Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of and
accrued interest, if any, on all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal (or portion
thereof) and accrued interest, if any, shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Securities of
such series;
(B) the principal of any Securities of such series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in such Securities or, if no such rate or rates is
prescribed therefor in such Securities, at the rate of interest borne
by such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amount due the Trustee
under Section 607;
and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of and interest on Securities
of such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any Security at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest from the date such interest was due, at
the rate or rates prescribed therefor in such Securities or, if no such rate or
rates is prescribed therefor in such Securities, at the rate of interest borne
by such Securities; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amount due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may, in its discretion, proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of
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whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 607)
and of the Holders of Securities and coupons allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder of
Securities and coupons to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities or coupons, or both, as the case
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may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To holders of Senior Indebtedness as provided in Article
Fourteen;
Third: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities and interest evidenced by
coupons in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and coupons for principal
and interest, respectively; and
Fourth: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
subject to Article Fourteen, to receive payment of the principal of and (subject
to Section 307) interest on such Security or payment of such coupon on the
Stated Maturities or Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date or, in the case of redemption or
repurchase by the Company at the option of the Holder, on the date fixed for
such redemption or repurchase, as the case may be) and to institute suit for the
enforcement of any such payment and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
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SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not have determined that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series, by notice to the Trustee (and without
notice to any other Holder), may on behalf of the Holders of all the Securities
of such series and any related coupons waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of or interest on any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit,
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having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
any Security or coupon for the enforcement of the payment of the principal of or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date or, in the case of redemption or
repurchase by the Company at the option of the Holder, on the date fixed for
such redemption or repurchase, as the case may be).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time voluntarily (and that it will resist any effort to make it
do so involuntarily) insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise such of the
rights and powers vested in it by this
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Indenture with respect to the Securities of such series, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit, in the manner and
to the extent provided in Section 703(b), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or interest on any Security of such series or in the payment of any sinking
fund installment with respect to any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that, in the case of
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any default of the character specified in Section 501(3), no such notice to
Holders shall be given until at least 60 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not
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be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or coupons and, subject to Sections 608 and 612, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Company's payment obligations
pursuant to this Section 607 shall survive the discharge or other
termination of this Indenture or the resignation or removal of the Trustee.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest on
particular Securities or for the payment of particular coupons.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder, which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. The Trustee shall comply with
Trust Indenture Act Sections 310(a)(5) and 310(b).
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such issue.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the last sentence of Section
608 after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months (or such
shorter period as the Securities have been outstanding), or
(2) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months (or
such shorter period as the Securities have been outstanding) may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months (or such shorter period as the
Securities have been outstanding) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect
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to the Securities of any series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 607.
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(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall comply with Trust Indenture Act Section 311(a), excluding
any creditor relationship listed in Trust Indenture Act Section 311(b). A
Trustee who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 30 and December 31 in each year,
a list, in such form as the Trustee may reasonably require, containing all
the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities as of the preceding June 15 or December 15, as the
case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 703(b)(2). The
Trustee may (i) destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, (ii) destroy any information received by it
as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee,
not earlier than August 15 or February 15, a list containing the names and
addresses of the Holders of Securities obtained from such information since the
delivery of the next previous list, if any, (iii) destroy any list delivered to
itself as Trustee which was compiled from information received by it as Paying
Agent (if so acting) hereunder upon the receipt of a new list so delivered, and
(iv) destroy not earlier than two years after filing, any information filed with
it pursuant to Section 703(b)(2).
(b) Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Security Registrar, the Paying Agent
and any other person shall have the protection of Trust Indenture Act Section
312(c).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the year
1998, the Trustee shall transmit to all Holders of Securities a brief report
dated as of such May 15 that complies with Trust Indenture Act Section 313(a),
if such report is required by such Section 313(a). The Trustee also shall comply
with Trust Indenture Act Sections 313(b) and (c).
(b) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange or of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may
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from time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(b) with respect to reports under Section 703(a),
copies or such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation or other Person organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and interest on all the Securities and any coupons appertaining thereto
and the performance of every covenant of this Indenture and the Securities
on the part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety to any Person in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor corporation or other Person had been named as the Company herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture,
the Securities and coupons.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities pursuant to Article Eight;
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company;
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions (including restrictions relating to
payment in the United States) on the payment of principal
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of or any premium or interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit the issuance of Securities in
uncertificated form; or
(4) to establish the form or terms of Securities of any series and any
related coupons, as permitted by Sections 201 and 301, respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
(7) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(8) to secure the Securities; or
(9) to make any other change that does not adversely affect the rights
of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any such Security, or reduce the principal
amount thereof or the rate of interest
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thereon or any premium payable thereon, or reduce the amount of principal
of any such Discount Security that would be due and payable upon a
declaration of acceleration of maturity thereof pursuant to Section 502, or
change the Place of Payment where, or coin or currency in which, any
principal of, or any installment of interest on, any such Security is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of Securities
which are subject to repurchase or redemption by the Company at the option
of the Holders, on or after the date fixed for such repurchase or
redemption);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) with respect to the
Securities of such series provided for in this Indenture; or
(3) make any change in the terms of the subordination of the
Securities in a manner adverse to the Holders of any series of outstanding
Securities; or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
interest on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. An installment
of principal or interest on the Securities shall be considered paid on the date
it is due if the Trustee or a Paying Agent (other than the Company or an
Affiliate of the Company) holds on that date funds (in the currency or
currencies of payment with respect to such Securities) designated for and
sufficient to pay such installment. Unless otherwise specified as contemplated
by Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. At the Company's option, payment of
principal or interest may be made by check or by transfer to an account
maintained by the payee (provided, in the case of Registered Securities, the
Trustee has received written payment instructions at least fifteen days prior to
any payment date) subject, in the case of Bearer Securities, to the provisions
of Section 1002.
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SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1011); provided, however, that, if the Securities of that series are listed on
The London Stock Exchange, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee and the
Holders of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities, or shall fail to
furnish the Trustee with the address thereof, such presentations and surrenders
of Securities of that series may be made, and notices and demands may be made or
served, at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1011) at the place
specified for that purpose as contemplated by Section 301 or, if no such place
is specified, at the main office of the Trustee in London, and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
No payment of principal or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in the United States, by transfer to an account located in the United
States or upon presentation or surrender in the United States of
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a Bearer Security or coupon for payment, even if the payment would be credited
to an account located outside the United States; provided, however, that, if the
Securities of a series are denominated and payable in Dollars, payment of
principal of and any interest on any such Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1011) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, interest or additional amounts, as the case may
be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, the Trustee shall be a Paying Agent and Transfer Agent
for the Securities of such series (until replaced or removed by the Company in
accordance with this Indenture), and the office or agency of the Company
maintained in the Borough of Manhattan, The City of New York in respect of the
Securities of such series for the purposes contemplated by this Section 1002
shall be the Corporate Trust Office of the Trustee located in the Borough of
Manhattan, The City of New York.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of the Securities, it will, on or before each due date of the
principal of or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
the Securities, it will, on or prior to each due date of the principal of or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities
(other than the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent or then held by
the Company, in trust for the payment of the principal of or interest on any
Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense and direction of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable
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in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. (Intentionally Omitted).
SECTION 1006. (Intentionally Omitted).
SECTION 1007. (Intentionally Omitted).
SECTION 1008. (Intentionally Omitted).
SECTION 1009. Statement by Officer as to Compliance; Notice of Certain Events.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a brief
certificate, signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, as to the signer's
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under any of the provisions of this Indenture. The Company's fiscal
year ends on December 31 of each year. The Company will notify the Trustee in
the event that such fiscal year changes. The Company will deliver to the
Trustee, within 20 days after the occurrence thereof, notice of each
acceleration which, with giving of notice by the Trustee or Holders and the
lapse of time, would be an Event of Default within the meaning of Section
501(4).
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 1004 or 1011 with respect to the Securities of
any series, if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1011. Additional Amounts.
If specified as contemplated by Section 301, the Securities of a series may
provide for the payment of additional amounts, and in such case, the Company
will pay to the Holder of any Security of such series or any coupon appertaining
thereto additional amounts as provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of or any interest
on, or in respect of, any Security of any series or payment of any related
coupon, such
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mention shall be deemed to include mention of the payment of additional amounts
provided for in this Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section, and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be construed as
excluding additional amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal and any
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
and the Company's Paying Agent or Paying Agents, if other than the Trustee, with
an Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any interest on the Securities
of that series shall be made to Holders of Securities of that series or any
related coupons who are Non-United States Holders without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons, and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by the Securities of such series and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred, without
negligence or bad faith on their part, arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the event that the Company elects to redeem Securities of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of the Securities
to be redeemed and of any other information necessary to identify the Securities
of such series to be redeemed.
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SECTION 1103. Selection by Trustee of Securities to be Redeemed.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, if less than all the Securities of any series with the
same issue date, interest rate, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate, which method may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Registered Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Unless otherwise specified as contemplated by Section 301 with respect to
any series of Securities, notice of redemption shall be given in the manner
provided in Section 106 to the Holders of Securities to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall identify the Securities to be redeemed
(including, if applicable, the CUSIP number thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed,
together with (if applicable) accrued and unpaid interest thereon and, if
applicable, that interest thereon will cease to accrue on and after said
date;
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(5) the place or places where such Securities, together, in the case
of Bearer Securities, with all coupons, if any, appertaining thereto
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and, if accrued and unpaid
interest on the Securities (or portions thereof) to be redeemed is, pursuant to
the terms of this Indenture or such Securities, payable to the Persons entitled
to receive the Redemption Price thereof, accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Sections 305 and 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security or, if no such
rate is so prescribed, at the rate of interest borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
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cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series with the
same issue date, interest rate, and Stated Maturity and other terms (other than
any previously called for redemption), together, in the case of any Bearer
Securities of such series with the same issue date, interest rate, Stated
Maturity and other terms, with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series with the same issue date,
interest rate, Stated Maturity and other terms which have been redeemed, either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate, Stated Maturity and other terms;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days (or such shorter period as shall be acceptable to the
Trustee) prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 1202, and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction,
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notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or in
London, as the Trustee shall determine or, with the approval of the Company, at
any other place. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in London, or in such other place as shall be
determined and approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in Subsection (a)
of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such lesser
percentage in principal amount of the Outstanding Securities of such
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series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case, the meeting may be adjourned for a period determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1302(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present,
as aforesaid, may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present, as aforesaid, by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect to any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes, who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting, and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits, signed by one or more persons
having knowledge of the facts, setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee, to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Securities Subordinate to Senior Indebtedness.
Unless otherwise specified as contemplated by Section 301, the Securities
shall be subordinated to Senior Indebtedness as set forth in this Article
Fourteen. The Company covenants and agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
Fourteen, the indebtedness represented by the Securities of such series and the
payment of the principal amount, interest and such other amounts as provided for
in Section 301, if any, in respect of each and all of the Securities of such
series are hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness; provided, however, that no
provision of this Article Fourteen shall prevent the occurrence of any default
or Event of Default hereunder.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Federal bankruptcy law or any other
applicable Federal or State law, but only to the extent allowed or permitted to
the holder of such Indebtedness of the Company against the bankruptcy or any
other insolvency estate of the Company in such proceeding) and other amounts due
on or in connection with any Indebtedness of the Company incurred, assumed or
guaranteed by the Company, whether outstanding on the date of the Indenture or
thereafter incurred, assumed or guaranteed and all renewals, extensions and
refundings of any such Indebtedness of the Company; provided, however, that the
following will not constitute Senior Indebtedness:
(a) any Indebtedness of the Company as to which, in the instrument creating
the same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Indebtedness of the Company shall be
subordinated to or pari passu with the Securities;
(b) Indebtedness of the Company in respect of the Securities;
(c) any Indebtedness of the Company constituting trade accounts payable
arising in the ordinary course of business;
(d) any Indebtedness of the Company initially issued to any other Oxy
Capital Trust in connection with an issuance by such Oxy Capital Trust of
preferred securities or other securities similar to preferred securities; and
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(e) any Indebtedness of the Company to any Subsidiary of the Company.
SECTION 1402. Payment Over of Proceeds upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities of any series are entitled to receive
any payment on account of the principal amount, interest or such other
amounts as may be provided for in Section 301, if any, in respect of the
Securities of such series; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article Fourteen, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Indebtedness of the Company being subordinated to the payment
of the Securities of such series, shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
1402, the Trustee or the Holder of any Security of any series shall receive any
payment or distribution of assets of the
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Company of any kind or character, whether in cash, property or securities,
including any such payment or distribution which may be payable or deliverable
by reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Securities of such series, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as provided in Section 1410, or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article Fourteen only, the words "cash, property or
securities," or any combination thereof, shall not be deemed to include shares
of capital stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article Fourteen with respect to the Securities, to the payment
of all Senior Indebtedness which may at the time be outstanding; provided,
however, that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article VIII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section 1402 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article VIII.
SECTION 1403. Prior Payment to Senior Indebtedness upon Acceleration of
Securities.
In the event that any Securities of any series are declared due and payable
before their Stated Maturity, then and in such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness or provision shall be
made for such payment in cash, before the Holders of the Securities of such
series are entitled to receive any payment (including any payment which may be
payable by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities of such series) by the Company on
account of the principal of (or premium, if any) or interest or other amounts on
Securities of such series or on account of the purchase or other acquisition of
Securities of such series.
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In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section 1403, and if such facts
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section 1410) or to such Holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section 1403 shall not apply to any payment with
respect to which Section 1402 would be applicable.
SECTION 1404. Default in Senior Indebtedness.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, if any, interest or any other payment due on
any Senior Indebtedness of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of a
default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption payments, if any) of, premium, if
any, or interest or other amounts on the Securities until such default is cured
or waived or ceases to exist or any such acceleration or demand for payment has
been rescinded.
SECTION 1405. Payment Permitted if No Default.
Nothing contained in this Article Fourteen or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1402 or under the
conditions described in Sections 1403 or 1404, from making payments at any time
of the principal amount, interest or such other amounts as may be provided for
in Section 301, if any, as the case may be, in respect of the Securities, or (b)
the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the principal
amount, interest or such other amounts as may be provided for in Section 301, if
any, as the case may be, in respect of the Securities if the Trustee did not
have, at the time provided in the proviso to the first paragraph of Section
1410, notice that such payment would have been prohibited by the provisions of
this Article Fourteen.
SECTION 1406. Subrogation Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities of any series shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article Fourteen to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities
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<PAGE>
applicable to the Senior Indebtedness until the principal amount, interest or
such other amounts as provided for in Section 301, if any, as the case may be,
in respect of the Securities of such series shall be paid in full. For purposes
of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities of such series or the Trustee would be entitled except for the
provisions of this Article Fourteen, and no payments pursuant to the provisions
of this Article Fourteen to the Company or to the holders of Senior Indebtedness
by Holders of the Securities of such series or the Trustee, shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of the Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1407. Provision Solely to Define Relative Rights.
The provisions of this Article Fourteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of any
series, on one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article Fourteen or elsewhere in this Indenture or in
the Securities of any series is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities of
such series, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities of such series the principal amount,
interest or such other amounts as may be provided for in Section 301, if any, as
the case may be, in respect of the Securities of such series as and when the
same shall become due and payable in accordance with the terms of the Securities
of such series and this Indenture and which, subject to the rights under this
Article Fourteen of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities of such series and creditors of the Company other than holders of
Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of such series from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article Fourteen of
the holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION 1409. No Waiver of Subordination Provisions.
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No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities of
any series, without incurring responsibility to the Holders of the Securities of
such series and without impairing or releasing the subordination provided in
this Article Fourteen or the obligations hereunder of the Holders of the
Securities of such series to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise dispose of any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
SECTION 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of any series. Failure to give such notice
shall not affect the subordination of the Securities of such series to Senior
Indebtedness. Notwithstanding the provisions of this Article Fourteen or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities of such series, unless
and until the Trustee shall have received written notice thereof in accordance
with Section 105 from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received, at least three Business Days prior to the date
upon which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the principal amount, interest or
such other amounts as may be provided for in Section 301, if any, as the case
may be, in respect of any Security of such series), the notice with respect to
such money provided for in this Section 1410, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or
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a trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee or agent on behalf
of any such holder). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Fourteen, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article Fourteen, and if such evidence is not
furnished, the Trustee may defer any payment which it may be required to make
for the benefit of such person pursuant to the terms of this Indenture pending
judicial determination as to the right of such person to receive such payment.
SECTION 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article Fourteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities of any series shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities of such
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
SECTION 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Fourteen or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless the Trustee shall have received notice in accordance with
Section 105. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Fourteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
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The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Fourteen with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1414. Article Fourteen Applicable to Paying Agents.
The term "Trustee" as used in this Article Fourteen shall (unless the
context otherwise requires) be construed as extending to and including the
Paying Agent within its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article Fourteen in addition to or in place of
the Trustee; provided, however, that Sections 1410 and 1412 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
OCCIDENTAL PETROLEUM CORPORATION
By
------------------------------------------
[Seal]
Attest:
-------------------------
THE BANK OF NEW YORK, Trustee
By
------------------------------------------
[Seal]
Attest:
-------------------------
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<PAGE>
State of California )
) ss:
County of Los Angeles )
On the day of January, 1999, before me personally came
, to me known, who, being by me duly sworn, did depose and say that he is
a of Occidental Petroleum Corporation, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
--------------------------------
State of New York )
) ss.
County of New York )
On the day of January, 1999, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is a of The
Bank of New York, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
--------------------------------
<PAGE>
EXHIBIT 4.8
______________________________________
OCCIDENTAL PETROLEUM CORPORATION
AND
THE BANK OF NEW YORK,
TRUSTEE
PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of [ ], 199[ ]
______________________________________
<PAGE>
Table of Contents
Page
----
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation................................. 1
ARTICLE II.
TRUST INDENTURE ACT
<TABLE>
<S> <C>
Section 2.01. Trust Indenture Act; Application............................... 4
Section 2.02. Lists of Holders of Securities................................. 4
Section 2.03. Reports by Preferred Guarantee Trustee......................... 5
Section 2.04. Periodic Reports to Preferred Guarantee Trustee................ 5
Section 2.05. Evidence of Compliance with Conditions Precedent............... 5
Section 2.06. Events of Default; Waiver...................................... 5
Section 2.07. Event of Default; Notice....................................... 5
Section 2.08. Conflicting Interests.......................................... 6
</TABLE>
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
<TABLE>
<S> <C>
Section 3.01. Powers and Duties of Preferred Guarantee Trustee............... 6
Section 3.02. Certain Rights of Preferred Guarantee Trustee.................. 7
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee.......... 9
</TABLE>
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
Section 4.01. Preferred Guarantee Trustee; Eligibility....................... 9
Section 4.02. Appointment, Removal and Resignation of Preferred Guarantee
Trustee........................................................ 10
ARTICLE V.
GUARANTEE
<TABLE>
<S> <C>
Section 5.01. Guarantee...................................................... 10
Section 5.02. Waiver of Notice and Demand.................................... 10
Section 5.03. Obligations Not Affected....................................... 11
Section 5.04. Rights of Holders.............................................. 11
Section 5.05. Guarantee of Payment........................................... 12
Section 5.06. Subrogation.................................................... 12
Section 5.07. Independent Obligations........................................ 13
</TABLE>
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions..................................... 13
Section 6.02. Ranking........................................................ 13
i
<PAGE>
ARTICLE VII.
TERMINATION
Section 7.01. Termination.................................................... 14
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation.................................................... 14
Section 8.02. Indemnification................................................ 14
ARTICLE IX.
MISCELLANEOUS
<TABLE>
<S> <C>
Section 9.01. Successors and Assigns......................................... 15
Section 9.02. Amendments..................................................... 15
Section 9.03. Notices........................................................ 15
Section 9.04. Benefit........................................................ 16
Section 9.05. Governing Law.................................................. 16
</TABLE>
ii
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"),
dated as of [ ], 199[ ], is executed and delivered by Occidental Petroleum
Corporation, a Delaware corporation (the "Guarantor"), and The Bank of New York,
as trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Preferred Securities (as defined
herein) of Oxy Capital Trust [ ], a Delaware statutory business trust (the
"Issuer");
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of [ ], 199[ ], among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof $[ ],000,000 [(including $[ ],000,000 issued pursuant
to an over-allotment option provided for in the Purchase Agreement)][(or up to
$[ ] if the over-allotment option is exercised in full)] aggregate stated
liquidation amount of Preferred Securities designated the [ ]% Preferred
Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires to irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee Agreement, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement") in substantially
identical terms to this Guarantee Agreement for the benefit of the holders of
the Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under this
Guarantee Agreement;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation.
-------------------------------
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.01;
<PAGE>
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, as in effect on the date of this Guarantee
Agreement.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Distribution" has the meaning specified in the Declaration.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Issuer: (i) any accrued and unpaid Distributions which are required
to be paid on such Preferred Securities to the extent the Issuer shall have
funds available therefore, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price") to the
extent the Issuer has funds available therefor, with respect to any Preferred
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Subordinated Notes to the Holders in
exchange for Preferred Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds available therefor and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution"). If an Event of Default
(as defined in the Indenture), has occurred and is continuing, the rights of the
holders of the Common Securities to receive Guarantee Payments under the Common
Securities Guarantee Agreement are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Guarantee
Agreement.
2
<PAGE>
"Guarantor" shall mean Occidental Petroleum Corporation, a Delaware
corporation or any permitted successor thereof under the Indenture, in its
capacity as guarantor under this Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Preferred
Guarantee Trustee.
"Indenture" means the Indenture dated as of [ ], 199[ ] among the Guarantor
and The Bank of New York, as trustee, as supplemented by the Officers'
Certificate (as defined in the Indenture) dated [ ], 199[ ].
"Majority in liquidation amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, Holder(s) of Preferred Securities voting
separately as a class, who vote Preferred Securities and the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Preferred
Securities voted by such Holders represents more than 50% of the above stated
liquidation amount of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
3
<PAGE>
"Preferred Guarantee Trustee" means The Bank of New York until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, the chairman of the board of directors, the president, any vice-
president, any assistant vice-president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer of the Preferred Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Subordinated Notes" means the series of subordinated debt securities of
the Guarantor designated the [ ]% Subordinated Notes due 20[ ].
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application.
---------------------------------
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.02. Lists of Holders of Securities.
-------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee (i)
semiannually, not later than June 30 and December 31 in each year, a list, in
such form as the Preferred Guarantee Trustee may reasonably require, containing
all the information in the possession or control of the Guarantor, or any of its
Paying Agents other than the Preferred Guarantee Trustee, as to the names and
addresses of the Holders of Securities ("List of Holders") as of the preceding
June 15 or December 15, as the case may be, and (ii) at such other times as the
Preferred Guarantee Trustee may request in writing, within 30 days after the
receipt by the Guarantor of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders; and
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(b) the Preferred Guarantee Trustee shall comply with its obligations
under (S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by Preferred Guarantee Trustee.
---------------------------------------
Within 60 days after May 15 of each year commencing May [ ], the Preferred
Guarantee Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by (S) 313 of the Trust Indenture Act, if any, in the
form and in the manner provided by (S) 313 of the Trust Indenture Act. The
Preferred Guarantee Trustee shall also comply with the requirements of (S)
313(d) of the Trust Indenture Act.
Section 2.04. Periodic Reports to Preferred Guarantee Trustee.
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by (S) 314 (if any) and the
compliance certificate required by (S) 314 of the Trust Indenture Act in the
form, in the manner and at the times required by (S) 314 of the Trust Indenture
Act.
Section 2.05. Evidence of Compliance with Conditions Precedent.
-------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement which relate to any of the matters set forth in (S)
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to (S) 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.06. Events of Default; Waiver.
--------------------------
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 2.07. Event of Default; Notice.
-------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default known to the Preferred Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, notices of all such Events of Default, unless such defaults have
been cured or waived before the giving of such notice, provided, that, the
Preferred Guarantee Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers, of the Preferred Guarantee Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Preferred Guarantee Trustee shall
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have received written notice or a Responsible Officer charged with the
administration of the Declaration shall have obtained written notice of.
Section 2.08. Conflicting Interests.
----------------------
The Declaration and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in (S)310(b) of the Trust Indenture Act. [Add all
subsequent Declarations.]
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.01. Powers and Duties of Preferred Guarantee Trustee.
------------------------------------------------
(a) This Guarantee Agreement shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities, and the
Preferred Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder of Preferred Securities exercising his or her rights
pursuant to Section 5.04(b) or to a Successor Preferred Guarantee Trustee on
acceptance by such Successor Preferred Guarantee Trustee of its appointment to
act as Preferred Guarantee Trustee. The right, title and interest of the
Preferred Guarantee Trustee shall automatically vest in any Successor Preferred
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred:
(i) shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement and in the terms of the Preferred
Securities, and no implied covenants, duties or obligations shall be read
into this Guarantee Agreement against the Preferred Guarantee Trustee; and
(ii) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Preferred Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished to
the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.06), the Preferred Guarantee Trustee shall exercise such
of the rights and powers vested in it by
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this Guarantee Agreement, and use the same degree of care and skill in their
exercise or use, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this subsection shall not be construed to limit subsection (c)
of this Section;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Preferred Guarantee Trustee, or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Guarantee Agreement including, without limitation, with respect to the
Preferred Securities; and
(iv) no provision of this Guarantee Agreement shall require the
Preferred Guarantee Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(e) Whether or not therein expressly so provided, every provision of this
Guarantee Agreement relating to the conduct or affecting the liability of or
affording protection to the Preferred Guarantee Trustee shall be subject to the
provisions of this Section.
Section 3.02. Certain Rights of Preferred Guarantee Trustee.
----------------------------------------------
(a) Subject to the provisions of Section 3.01:
(i) the Preferred Guarantee Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) any act of the Guarantor contemplated by this Guarantee
Agreement shall be sufficiently evidenced by an Officers' Certificate;
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(iii) whenever, in the administration of this Guarantee Agreement,
the Preferred Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action
hereunder, the Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any recording,
refiling or registration thereof);
(v) the Preferred Guarantee Trustee may consult with counsel of
its selection and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon. Such counsel may be
counsel to the Guarantor or any of its Affiliates, and may include any of
its employees;
(vi) the Preferred Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have offered to the Preferred Guarantee Trustee reasonable security
or indemnity against the costs, expenses and liabilities that might be
incurred by it in complying with such request or direction;
(vii) the Preferred Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note or other paper or
document, but the Preferred Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit and, if the Preferred Guarantee Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Guarantor, personally or by agent or
attorney;
(viii) the Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Preferred Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Trust and the Holders of the Preferred
Securities and the signature of the Preferred Guarantee Trustee or its
agents alone shall be sufficient and effective to perform any such action;
and no third party shall be required to inquire as to the authority of the
Preferred Guarantee Trustee to so act, or as to its compliance with any of
the terms and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action;
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(x) whenever in the administration of this Guarantee Agreement
the Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of the Preferred Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Preferred Securities as would be entitled to
direct the Preferred Guarantee Trustee under the terms of the Preferred
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions;
(xi) the Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Preferred Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(xii) the Preferred Guarantee Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Guarantee.
(b) No provision of this Guarantee Agreement shall be deemed to empower
the Preferred Guarantee Trustee to vary the investment of any Holder of the
Preferred Securities or to act in a manner inconsistent with the status of the
Issuer as a grantor trust for United States federal income tax purposes.
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee.
------------------------------------------------------
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representations as to the validity or sufficiency of this Guarantee
Agreement.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
Section 4.01. Preferred Guarantee Trustee; Eligibility.
-----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State thereof or of the District of
Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
9
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corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 4.01(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published;
(b) if at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c);
and
(c) if the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of (S) 310(b) of the Trust Indenture
Act, the Preferred Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of (S) 310(b) of the Trust Indenture Act.
Section 4.02. Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.02(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor;
(b) the Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor;
(c) the Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or resignation. The Preferred Guarantee Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee; and
(d) if no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Preferred Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
Successor Preferred Guarantee Trustee.
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ARTICLE V.
GUARANTEE
Section 5.01. Guarantee.
----------
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
Section 5.02. Waiver of Notice and Demand.
----------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.03. Obligations Not Affected.
-------------------------
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Subordinated Notes or any extension of the maturity date of the Subordinated
Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
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(e) any invalidity of, or defect or deficiency in the Preferred
Securities or the Subordinated Notes;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation on the Holders or any other Person to give
notice to, or obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
Section 5.04. Rights of Holders.
------------------
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Guarantee Agreement; and
(b) notwithstanding the rights of the Preferred Guarantee Trustee to
enforce this Guarantee Agreement under Article III, any Holder of Preferred
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Preferred Guarantee Trustee's rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer, the Preferred
Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder of Preferred
Securities may directly institute a proceeding against the Guarantor for
enforcement of this Guarantee Agreement for such payment. The Guarantor waives
any right or remedy to require that any action be brought first against the
Issuer or any other person or entity before proceeding directly against the
Guarantor.
Section 5.05. Guarantee of Payment.
---------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection.
Section 5.06. Subrogation.
------------
The Guarantor shall be subrogated to all rights, if any, of the Holders of
Preferred Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
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Section 5.07. Independent Obligations.
------------------------
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions.
---------------------------
So long as any Preferred Securities remain outstanding, (a) the Guarantor
will not declare or pay any dividend on, or make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, and (b) the Guarantor will not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) of the Guarantor which rank pari passu
with or junior to the Subordinated Notes, if at such time (i) there shall have
occurred any Event of Default or (ii) there shall have occurred any Event of
Default under the Declaration; provided, that, clause (a) above does not apply
to (i) any stock dividends paid by the Guarantor where the dividend stock is the
same as that on which the dividend is being paid, (ii) purchases or acquisitions
by the Guarantor of shares of its common stock in connection with the
satisfaction by the Guarantor or any of its subsidiaries of their respective
obligations under any benefit plans for directors, officers, agents or employees
of the Guarantor's dividend reinvestment or director, officer, agent or employee
stock purchase plans, (iii) a reclassification of the Guarantor's capital stock
or the exchange or conversion of one class or series of its capital stock for
another class or series of its capital stock, (iv) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant to the conversion
or exchange provisions of such capital stock or security being converted or
exchanged for capital stock, (v) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of the
Guarantor's capital stock or (vi) any declaration by the Guarantor of a dividend
in connection with the implementation or extension of a stockholders' rights
plan, or the issuance of stock under any such plan (including any such existing
plan) in the future or the redemption or repurchase or any such rights pursuant
thereto.
Section 6.02. Ranking.
--------
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, except for those liabilities made pari passu
or junior by their terms to any liabilities of the Guarantor under this
Guarantee Agreement, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock[; provided, that, this
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Guarantee Agreement shall be pari passu with the guarantee issued by the
Guarantor in connection with [ ]].
ARTICLE VII.
TERMINATION
Section 7.01. Termination.
------------
This Guarantee Agreement shall terminate with respect to each Holder upon
the first to occur of the following: full payment of the Redemption Price of
all Preferred Securities, the distribution of the Subordinated Notes to the
Holders of all of the Preferred Securities or full payment of the amounts
payable in accordance with the Declaration upon dissolution of the Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation.
------------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee Agreement and
in a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence (or, in the case of the Preferred Guarantee Trustee, except as
otherwise set forth in Section 3.01) or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
Section 8.02. Indemnification.
----------------
(a) The Guarantor shall indemnify each Indemnified Person for, and hold
each Indemnified Person harmless against, any loss, liability or expense
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person
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without negligence or bad faith (or, in the case of the Preferred Securities
Trustee, except as set forth in Section 3.01) in accordance with this Guarantee
Agreement and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Guarantee Agreement.
(b) Reasonable expenses (including reasonable legal fees and expenses)
incurred by an Indemnified Person in defending any claim, demand, action, suit
or proceeding shall, from time to time, be advanced by the Guarantor prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Guarantor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 8.02(a).
(c) The provisions of this Section 8.02 shall survive termination of this
Guarantee or the resignation or removal of the Preferred Guarantee Trustee.
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Successors and Assigns.
-----------------------
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
Section 9.02. Amendments.
-----------
Except with respect to any changes which do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the Preferred Securities. The
provisions of Section 12.2 of the Declaration with respect to meetings of
Holders apply to the giving of such approval.
Section 9.03. Notices.
--------
All notices provided for in this Guarantee Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, postage prepaid, as follows:
(a) if given to the Preferred Guarantee Trustee at the Preferred Guarantee
Trustee's mailing address set forth below (or such other address as the
Preferred Guarantee Trustee may give notice of to the Holders of the Preferred
Securities):
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
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(b) if given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Preferred Securities):
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
Attn: General Counsel
(c) if given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed except that if a notice or
other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
Section 9.04. Benefit.
--------
This Guarantee Agreement is solely for the benefit of the Holders of the
Preferred Securities and subject to Section 3.01(a) is not separately
transferable from the Preferred Securities.
Section 9.05. Governing Law.
--------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
OCCIDENTAL PETROLEUM CORPORATION
By:
-----------------------------
Name:
Title:
THE BANK OF NEW YORK
as Preferred Guarantee Trustee
By:
---------------------------
Name:
Title:
17
<PAGE>
EXHIBIT 5.1
-----------
January 6, 1999
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Re: Registration Statement on Form S-3 of Occidental
Petroleum Corporation, Oxy Capital Trust I, Oxy
Capital Trust II and Oxy Capital Trust III
------------------------------------------------
Ladies and Gentlemen:
I am an Associate General Counsel of Occidental Petroleum Corporation, a
Delaware corporation ("Occidental"), and am rendering this opinion in connection
with the preparation of the above-referenced Registration Statement on Form S-3
(No. 333-69303) (the "Registration Statement"), which was filed by Occidental
and Oxy Capital Trust I, Oxy Capital Trust II and Oxy Capital Trust III, each a
statutory business trust created under the Business Trust Act of the State of
Delaware (each a "Trust," and collectively, the "Trusts"), on December 21, 1998,
with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to the registration under the Securities Act of
1933, as amended (the "Securities Act"), of $1,400,000,000 aggregate public
offering price of (i) Occidental's (a) senior unsecured debt securities (the
"Senior Debt Securities"), which may be issued pursuant to an indenture, dated
as of April 1, 1998, between Occidental and The Bank of New York, a New York
banking corporation, as trustee (the "Senior Indenture"); (b) subordinated debt
securities (the "Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"), which may be issued pursuant to an
indenture (as amended or supple mented, the "Subordinated Indenture"), between
Occidental and The Bank of New York, as trustee; and (c) guarantees by
Occidental of the preferred securities (the "Guarantees") described below
pursuant to one or more guarantee agreements (each a "Guarantee Agreement") to
be entered into by Occidental; and (ii) preferred securities (the
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 2
"Preferred Securities" and, together with the Debt Securities, the "Offered
Securities") which may be issued by each Trust pursuant to their respective
Amended and Restated Declarations of Trust (each an "Amended Declaration"). The
Offered Securities are being registered for offering and sale from time to time
pursuant to Rule 415 under the Securities Act.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
such documents as I have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Registration Statement (together
with the form of preliminary prospectus forming a part thereof); (ii) the
Restated Certificate of Incorporation and By-Laws of Occidental, in each case,
as amended to date; (iii) the Senior Indenture; (iv) the form of the
Subordinated Indenture; (v) the Certificate of Trust of each of the Trusts filed
with the Secretary of State of the State of Delaware on December 16, 1998 (each,
a "Certificate of Trust"); (vi) the Declaration of Trust of each of the Trusts
dated as of December 16, 1998 (each, a "Declaration of Trust") and (vii) copies
of certain resolutions adopted by the Board of Directors of Occidental relating
to the execution of the Senior Indenture and the Subordinated Indenture, the
issuance of the Debt Securities, the filing of the Registration Statement and
any amendments or supplements thereto and related matters (the "Board
Resolutions"). In my examination, I have assumed the legal capacity of all
natural persons, that the signatures (other than signatures executing documents
on behalf of Occidental) on all documents examined or caused to be examined by
me are genuine, that all documents submitted to me as originals are authentic,
and that all documents submitted to me as copies conform with the originals,
which assumptions I have not independently verified. As to any facts material
to the opinions expressed herein which I have not independently established or
verified, I have relied upon statements and representations of officers and
other representatives of Occidental and others.
I am a member of the California and New York Bars and for purposes of this
opinion do not hold myself out as an expert on, nor do I express any opinion as
to, the laws of any jurisdiction other than the laws of the State of New York,
the Federal laws
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 3
of the United States and the General Corporation Law of the State of Delaware.
The Debt Securities may be issued from time to time on a delayed or continuous
basis and this opinion is limited to the laws, including the rules and
regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, I am of the opinion that:
1. When (i) the Registration Statement becomes effective under the
Securities Act; (ii) the appropriate officers of Occidental have taken all
necessary action pursuant to the provisions of the Senior Indenture or the
Subordinated Indenture, as the case may be, to fix and approve the terms of the
Debt Securities, including the establishment of the form or forms of
certificates representing the Debt Securities pursuant to the provisions of the
Senior Indenture or the Subordinated Indenture, as the case may be; (iii) the
Senior Indenture or the Subordinated Indenture, as the case may be, shall have
been qualified under the Trust Indenture Act of 1939, as amended; and (iv) the
Debt Securities are duly executed and authenticated in accordance with the
provisions of the Senior Indenture or the Subordinated Indenture, as the case
may be, and duly delivered to the purchasers thereof upon payment of the agreed
upon consideration therefor, the Debt Securities will be validly issued and
binding obligations of Occidental, enforceable against Occidental in accordance
with their terms, except as may be subject to or limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting creditors' rights generally, (b) the effect of general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailabity of
specific performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (c) requirements that a claim with respect to
any Debt Securities authenticated and delivered under the applicable Indenture
denominated other than in United States dollars (or a judgment denominated other
than in United States dollars in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law, 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. In addition, I express no opinion with respect to
any Debt Securities that are indexed or linked to any foreign currency,
composite currency, currency unit, commodity, equity index or similar index.
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 4
2. With respect to the Guarantees, when (i) the trustees of the
applicable Trust have taken all necessary action to adopt the Amended
Declaration and to fix and determine the terms of the applicable Preferred
Securities in accordance with the terms of the applicable Amended Declaration;
(ii) the appropriate officers of Occidental have taken all necessary action to
fix and determine the terms of the applicable Guarantees in accordance with the
Board Resolutions; (iii) the terms of the applicable Preferred Securities and
the related Guarantee and the issuance and sale thereof have been duly
established in conformity with the applicable Amended Declaration and applicable
Guarantee Agreement, respectively, so as not to violate any applicable law, the
applicable Certificate of Trust, Declaration of Trust and Amended Declaration,
and the Restated Certificate of Incorporation and By-laws of Occidental, or
result in a default (with the passage of time or otherwise) under or a breach of
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument binding upon the Trust or Occidental, and so as to comply with any
requirement or restriction imposed by any court or governmental agency or
authority having jurisdiction over the applicable Trust or Occidental; (iv) the
applicable Guarantee Agreement has been duly executed and delivered; (v) the
applicable Preferred Securities have been duly issued and delivered by the
applicable Trust as contemplated by the Registration Statement and the
prospectus supplement relating thereto; (vi) certificates representing the
applicable Preferred Securities have been manually authenticated by an
authorized officer of the Property Trustee (as defined in the applicable Amended
Declaration) for the applicable Preferred Securities and registered by such
Property Trustee and delivered to the purchasers thereof; (vii) the applicable
Trust receives the agreed-upon consideration therefor and (viii) the applicable
Guarantee Agreement shall have been qualified under the Trust Indenture Act of
1939, as amended, the applicable Guarantee will be a valid and binding
obligation of Occidental enforceable in accordance with its terms except as may
be subject to or limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting creditors'
rights generally, (b) the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law,
(c) requirements that a claim with respect to any Guarantee denominated other
than in United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 5
States dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law, (d) governmental authority to limit, delay or prohibit the
making of payments outside the United States or in a foreign currency, composite
currency or currency unit, and (e) the effect of general rules of contract law
that limit the enforceability of provisions requiring indemnification of a party
for liability for its own action or inaction to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or unlawful
conduct.
The opinions above with respect to the Debt Securities and the Guarantees
are limited to the internal laws of the State of New York. The opinion above
with respect to the Guarantees is subject to the qualification that certain of
the guarantee and surety waivers contained in the Guarantee Agreements may be
unenforceable in whole or in part, but the inclusion of such provisions does not
affect the validity or enforceability of any Guarantee, taken as a whole.
I call to you attention that federal courts located in New York could
decline to hear a case on grounds of forum non-conveniens or any doctrine
--------------------
limiting the availability of the federal courts in New York as a forum for the
resolution of disputes not having a sufficient nexus to New York and I express
no opinion as to any waiver of rights to assert the applicability of the forum
non-conveniens doctrine or any such other doctrine.
My opinion above with respect to the Guarantees is rendered in reliance
upon the Act of July 19, 1984, ch. 421, 1984 McKinney's Sess. Law of N.Y. 1406
(codified at N.Y. Gen. Oblig. Law (S)(S) 5-1401, 5-1402 (McKinney 1989) and N.Y.
CPLR 327(b) (McKinney (1990)) (the "Act") and is subject to the qualifications
that such enforceability (i) may be limited by public policy considerations of
New York or any other jurisdiction, in which enforcement of such provisions, or
of a judgment upon an agreement containing such provisions, is sought, and (ii)
as specified in the Act, does not apply to the extent provided to the contrary
in subsection two of Section 1-105 of the New York Uniform Commercial Code.
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 6
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. I also consent to the reference to
me under the heading "Legal Opinions" in the Registration Statement. In giving
this consent, I do not thereby admit that I am in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Robert E. Sawyer, Esq.
<PAGE>
EXHIBIT 5.2
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
January 6, 1999
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, CA 90024
Ladies and Gentlemen:
We have acted as special counsel to Occidental Petroleum Corporation,
a Delaware corporation (the "Company"), Oxy Capital Trust I, Oxy Capital Trust
II and Oxy Capital Trust III, each a statutory business trust created under the
Business Trust Act of the State of Delaware (each a "Trust," and collectively,
the "Trusts"), in connection with the preparation of the Registration Statement
on Form S-3 (No. 333-69303) (the "Registration Statement") filed by the Company
and the Trusts with the Securities and Exchange Commission (the "Commission")
on December 21, 1998 with respect to the registration under the Securities
Act of 1933, as amended (the "Act"), of $1,400,000,000 aggregate public offering
price of (i) the Company's (a) unsecured senior debt securities (the "Senior
Debt Securities"), which may be issued pursuant to an indenture, dated as of
April 1, 1998, between the Company and The Bank of New York, as Trustee
(the "Senior Indenture"); (b) subordinated debt securities (the "Subordinated
Debt Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), which may be issued pursuant to an indenture (as amended or supple
mented, the "Subordinated Indenture"), between the Company and a trustee; and
(c) guarantees by the Company of the preferred securities described below (the
"Guarantees" and, together with the Debt Securities, the "Company Securities")
which may be issued under one or more guarantee agreements which may be entered
into by the Company; and (ii) preferred securities (the "Preferred Securities")
of the Trusts which may be issued by one or more Trusts pursuant to its Amended
and Restated Declaration of Trust (each an "Amended Declaration").
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 2
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Restated Certificate of Incorporation and By-Laws of the
Company, in each case, as amended as of the date hereof; (iii) the Certificate
of Trust of each of the Trusts filed with the Secretary of State of the State of
Delaware on December 16, 1998; (iv) the form of Amended Declaration of each
Trust filed as an exhibit to the Registration Statement; (v) the form of the
Preferred Security filed as an exhibit to the Registration Statement; and (vi)
certain resolutions of the Board of Directors of the Company relating to the
transactions contemplated by the Registration Statement, the creation of the
Trusts and related matters (the "Board Resolutions"). We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed by parties other than the Company and the Trusts, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties.
In expressing the opinions contained herein, we have assumed with your
permission that the execution and delivery by the Company and the Trusts, as
applicable, of the Company Securities or the Preferred Securities, the
consummation of the transactions contemplated by the Registration Statement and
the performance by the
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 3
Company and each of the Trusts of their respective obligations under the Company
Securities and the Preferred Securities, as applicable, do not and will not
violate, conflict with or constitute a breach of or a default (with the passage
of time or otherwise) under (i) any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any Trust may
be bound or to which any of their respective properties is subject, (ii) any
provision of any statute, law, rule, or regulation to which the Company or the
Trusts may be subject, (iii) any order or decree of any court, governmental
agency or authority entered in any proceeding to which the Company or any Trust
was or is now a party or by which it is bound or (iv) any consent, approval,
license, authorization or validation of, or filing, recording or registration
with, any governmental authority. As to any facts material to the opinions
expressed herein which we have not independently established or verified, we
have relied upon oral or written statements and representations of officers and
other representatives of the Company, each of the Trusts and others.
Members of our firm are admitted to the bar in the State of Delaware
and we do not express any opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing we are of the opinion that:
1. With respect to the Preferred Securities (the "Offered Preferred
Securities"), when (i) the trustees of the applicable Trust have taken all
necessary action to adopt the Amended Declaration and to fix and determine the
terms of the Offered Preferred Securities in accordance with the Amended
Declaration; (ii) the terms of the Offered Preferred Securities and of their
issuance and sale have been duly established in conformity with the Amended
Declaration so as not to violate any applicable law; and (iii) the Offered
Preferred Securities have been duly issued and delivered by the applicable Trust
as contemplated by the Registration Statement and the prospectus supplement
relating thereto, the issuance and sale of the Offered Preferred Securities will
have been duly authorized for issuance and, subject to the limitations set forth
in paragraph 2 below, will represent fully-paid, nonassessable and undivided
beneficial interests in the assets of the applicable Trust.
<PAGE>
Occidental Petroleum Corporation
January 6, 1999
Page 4
2. The holders of the Offered Preferred Securities will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law. We
bring to your attention, however, that the holders of the Offered Preferred
Securities of each Trust may be obligated, pursuant to the Amended Declaration
of such Trust, to (i) provide indemnity and/or security in connection with, and
pay taxes or governmental charges arising from, transfers of Offered Preferred
Securities and the issuance of replacement Offered Preferred Securities and (ii)
provide security and indemnity in connection with requests of, or directions to,
the Property Trustee (as defined in the applicable Amended Declaration) to
exercise its rights and powers under the applicable Amended Declaration.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Opinions" in the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission. This opinion is expressed as of the
date hereof, and we disclaim any undertaking to advise you of any subsequent
changes in the facts stated or assumed herein or of any subsequent changes in
applicable law.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
---------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OXY CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OXY CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OXY CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securities of OXY Capital Trust I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
---------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.7
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securities of OXY Capital Trust II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.8
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-4035997
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Preferred Securities of OXY Capital Trust III
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 18th day of December, 1998.
THE BANK OF NEW YORK
By: /s/ MARIE TRIMBOLI
-------------------------------------
Name: MARIE TRIMBOLI
Title: ASSISTANT TREASURER
<PAGE>
EXHIBIT 7
---------
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin......................... $ 7,301,241
Interest-bearing balances.................................................. 1,385,944
Securities:
Held-to-maturity securities................................................ 1,000,737
Available-for-sale securities.............................................. 4,240,655
Federal funds sold and Securities purchased under agreements to resell...... 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned income........................ 38,788,269
LESS: Allowance for loan and lease losses.......................... 632,875
LESS: Allocated transfer risk reserve.................................... 0
Loans and leases, net of unearned income, allowance, and reserve........... 38,155,394
Assets held in trading accounts............................................. 1,307,562
Premises and fixed assets (including capitalized leases).................... 670,445
Other real estate owned..................................................... 13,598
Investments in unconsolidated subsidiaries and associated companies......... 215,024
Customers' liability to this bank on acceptances outstanding................ 974,237
Intangible assets........................................................... 1,102,625
Other assets................................................................ 1,944,777
-----------
Total assets................................................................ $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices........................................................ $26,930,258
Noninterest-bearing............................................. 11,579.390
Interest-bearing................................................ 15,350,868
In foreign offices, Edge and Agreement subsidiaries, and IBFs.............. 16,117,854
Noninterest-bearing................................................ 187,464
Interest-bearing................................................ 15,930,390
Federal funds purchased and Securities sold under agreements to repurchase.. 2,170,238
Demand notes issued to the U.S.Treasury..................................... 300,000
Trading liabilities......................................................... 1,310,867
Other borrowed money:
With remaining maturity of one year or less................................ 2,549,479
With remaining maturity of more than one year through three years.......... 0
With remaining maturity of more than three years........................... 46,654
Bank's liability on acceptances executed and outstanding.................... 983,398
Subordinated notes and debentures........................................... 1,314,000
Other liabilities........................................................... 2,295,520
-----------
Total liabilities........................................................... 54,018,268
-----------
EQUITY CAPITAL
Common stock................................................................ 1,135,284
Surplus..................................................................... 731,319
Undivided profits and capital reserves...................................... 3,385,227
Net unrealized holding gains (losses) on available-for-sale securities...... 51,233
Cumulative foreign currency translation adjustments......................... (37,639)
-----------
Total equity capital........................................................ 5,265,424
-----------
Total liabilities and equity capital........................................ $59,283,692
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- --------------------------------------------------------------------------------
