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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 13, 1999
OCCIDENTAL PETROLEUM CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 1-9210 95-4035997
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
</TABLE>
10889 Wilshire Boulevard
Los Angeles, California 90024
(Address of principal executive offices) (ZIP code)
Registrant's telephone number, including area code:
(310) 208-8800
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Item 5. Other Events
On January 20, 1999, Oxy Capital Trust I (the "Trust"), a wholly-owned
subsidiary of Occidental Petroleum Corporation ("Occidental"), issued
$525,000,000 aggregate liquidation amount of its 8.16% Trust Originated
Preferred Securities at a public offering price of $25 per preferred security.
The preferred securities are guaranteed by Occidental based on several
obligations. The Trust invested the proceeds from such sale, together with the
proceeds from the sale of its common securities to Occidental, into $541,237,125
aggregate principal amount of 8.16% Subordinated Deferrable Interest Notes due
2039 of Occidental.
Item 7. Exhibits
1.1 Underwriting Agreement, dated January 13, 1999, among Occidental,
the Trust and the Underwriters named therein.
4.1 Amended and Restated Declaration of Trust of Oxy Capital Trust I,
dated January 20, 1999.
4.2 Indenture (Subordinated Debt Securities), dated as of January 20,
1999, between Occidental and The Bank of New York, as Trustee.
4.3 Preferred Securities Guarantee, dated as of January 20, 1999, between
Occidental and The Bank of New York, as Trustee.
4.4 Officers' Certificate, dated as of January 20, 1999, pursuant to the
Indenture.
4.5 Form of 8.16% Subordinated Deferrable Interest Notes due 2039.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax
matters.
2
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OCCIDENTAL PETROLEUM CORPORATION
(Registrant)
DATE: January 20, 1999 By: /s/ J. R. Havert
-------------------------------------
Name: J. R. Havert
Title: Vice President and Treasurer
3
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EXHIBIT INDEX
EXHIBIT
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1.1 Underwriting Agreement, dated January 13, 1999, among Occidental,
the Trust and the Underwriters named therein.
4.1 Amended and Restated Declaration of Trust of Oxy Capital Trust I,
dated January 20, 1999.
4.2 Indenture (Subordinated Debt Securities), dated as of January 20,
1999, between Occidental and The Bank of New York, as Trustee.
4.3 Preferred Securities Guarantee, dated as of January 20, 1999, between
Occidental and The Bank of New York, as Trustee.
4.4 Officers' Certificate, dated as of January 20, 1999, pursuant to the
Indenture.
4.5 Form of 8.16% Subordinated Deferrable Interest Notes due 2039.
8.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding tax
matters.
4
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EXHIBIT 1.1
OXY CAPITAL TRUST I
(a Delaware business trust)
20,000,000 Preferred Securities
8.16% Trust Originated Preferred Securities/SM/ ("TOPrS"/SM/)
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
Dated: January 13, 1999
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"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill
Lynch & Co., Inc.
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Table of Contents
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Page
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SECTION 1. Representations and Warranties................................. 3
SECTION 2. Sale and Delivery to Underwriters; Closing..................... 7
SECTION 3. Foreign Offerings.............................................. 9
SECTION 4. Covenants of the Offerors...................................... 11
SECTION 5. Payment of Expenses............................................ 13
SECTION 6. Conditions of Underwriters' Obligations........................ 14
SECTION 7. Indemnification................................................ 21
SECTION 8. Contribution................................................... 23
SECTION 9. Representations, Warranties and Agreements to Survive Delivery. 24
SECTION 10. Termination of Agreement....................................... 24
SECTION 11. Default by One or More of the Underwriters..................... 25
SECTION 12. Notices........................................................ 26
SECTION 13. Parties........................................................ 26
SECTION 14. GOVERNING LAW AND TIME......................................... 26
SECTION 15. Effect of Headings............................................. 26
SCHEDULES
Schedule A - List of Underwriters...................................... Sch A-1
Schedule B - Pricing Information....................................... Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Skadden, Arps, Slate, Meagher and Flom LLP.. A-1
Exhibit B - Form of Opinion of Emmet, Marvin & Martin LLP.................. B-1
Exhibit C - Form of Opinion of Richards, Layton & Finger, P.A. ............ C-1
</TABLE>
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OXY CAPITAL TRUST I
(a Delaware business trust)
20,000,000 Preferred Securities
8.16% Trust Originated Preferred Securities/SM/ ("TOPrS"/SM/)
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
----------------------
January 13, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
as Representatives of the several Underwriters
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Oxy Capital Trust I (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (S)(S) 3801 et seq.),
and Occidental Petroleum Corporation, a Delaware corporation ("Occidental" or
the "Guarantor" and, together with the Trust, the "Offerors") confirm their
agreement (the "Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 11
hereof), for whom Merrill Lynch, A.G. Edwards & Sons, Inc., Morgan Stanley & Co.
Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated and
Salomon Smith Barney Inc. are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Trust and the
- -----------------------
"Trust Originated Preferred Securities" and "TOPrS" are service marks of Merrill
Lynch & Co., Inc.
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purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 8.16% Trust Originated Preferred Securities (liquidation
amount of $25 per preferred security) of the Trust (the "Preferred Securities")
set forth in said Schedule A, and with respect to the grant by the Trust to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of the additional 1,000,000
Preferred Securities to cover over-allotments, if any. The aforesaid 20,000,000
Preferred Securities (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 1,000,000 Preferred Securities subject
to the option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities." The Preferred Securities
will be guaranteed by the Guarantor with respect to distributions and payments
upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of January 20, 1999,
between the Guarantor and The Bank of New York, as Trustee (the "Preferred
Guarantee Trustee"), and entitled to the benefits of certain backup undertakings
described in the Prospectus (as defined herein) with respect to the Guarantor's
agreement pursuant to the Officers' Certificate (as defined herein) to pay all
expenses relating to administration of the Trust (the "Undertakings").
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The entire proceeds from the
sale of the Securities will be combined with the entire proceeds from the sale
by the Trust to the Guarantor of its common securities (the "Common Securities")
guaranteed by the Guarantor, to the extent set forth in such guarantee, with
respect to distributions and payments upon liquidation and redemption (the
"Common Securities Guarantee" and, together with the Preferred Securities
Guarantee the "Guarantees") pursuant to a Common Securities Guarantee Agreement
(the "Common Securities Guarantee Agreement" and, together with the Preferred
Securities Guarantee Agreement, the "Guarantee Agreements"), dated as of January
20, 1999 between the Guarantor and The Bank of New York, as Trustee, and will be
used by the Trust to purchase $515,463,925 aggregate principal amount of 8.16%
Subordinated Deferrable Interest Notes due 2039 (the "Subordinated Debt
Securities") to be issued by Occidental and, if all or any part of the Option
Securities are purchased, up to an additional $25,773,200 aggregate principal
amount of Subordinated Debt Securities (the "Option Subordinated Debt
Securities"). The Preferred Securities and the Common Securities will be issued
pursuant to the amended and restated declaration of trust of the Trust, dated as
of January 20, 1999 (the "Declaration"), among the Guarantor, as Sponsor, the
trustees named therein (the "Trustees") and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debt Securities will be issued pursuant to an indenture, dated as of January 20,
1999 (the "Base Indenture"), among the Guarantor and The Bank of New York, as
trustee (the "Debt Trustee"), and an officers' certificate as provided for in
the Base Indenture (the "Officers' Certificate," and together with the Base
Indenture and any other amendments or supplements thereto, the "Indenture").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (No. 333-69303) and, if
applicable, one or more amendments thereto covering the registration of (i) the
Securities and (ii) the debt securities of Occidental under the Securities Act
of 1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the
2
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Commission under the 1933 Act (the "1933 Act Regulations"). Such registration
statement (as amended, if applicable) has been declared effective by the
Commission and the Base Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Promptly after execution and delivery
of this Agreement, the Offerors will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations or (ii) if the Offerors have elected to rely upon Rule 434 ("Rule
434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and 424(b). The
information included in such Term Sheet that was omitted from such registration
statement at the time it became effective but that is deemed part of such
registration statement at the time it became effective is referred to as "Rule
434 Information." Each prospectus used before such Rule 424(b) prospectus has
been filed and any prospectus that omitted the Rule 434 Information, in each
case that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and any documents, financial statements and schedules filed by the Company
with the Commission under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and so incorporated or deemed to be incorporated by reference (such
incorporated documents, financial statements and schedules being herein called
the "Incorporated Documents"), at the time it became effective and including the
Rule 434 Information is herein called the "Registration Statement." Any related
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement" and after such
filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the prospectus
supplement relating to the Securities and the Incorporated Documents, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities (as amended, supplemented or replaced and provided to the
Underwriters for use in connection with the offering of the Securities if such
amendment, supplement or replacement is not required to be filed by the Offerors
pursuant to Rule 424(b)) is herein called the "Prospectus." Notwithstanding the
foregoing, for purposes of this Agreement any prospectus supplement prepared or
filed with respect to an offering pursuant to the Registration Statement of a
series of securities other than the Securities shall not be deemed to have
supplemented the Prospectus. If Rule 434 is relied on, the term "Prospectus"
shall refer to the preliminary prospectus dated January 8, 1999 together with
the Term Sheet and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
SECTION 1. Representations and Warranties. The Offerors jointly and
------------------------------
severally represent and warrant to each of the Underwriters as follows:
(a) The Incorporated Documents, when they were filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, as the case may be, complied in all
material respects with the requirements
3
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of the 1934 Act and the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations"), and any Incorporated Documents filed
subsequent to the date hereof and prior to the termination of the offering
of the Securities, will, when they are filed with the Commission, comply in
all material respects with the requirements of the 1934 Act and the 1934
Act Regulations; no such Incorporated Document, when it was filed or became
effective (or, if an amendment with respect to any such Incorporated
Document was filed or became effective, when such amendment was filed or
became effective) with the Commission, contained, and no Incorporated
Document filed subsequent to the date hereof and prior to the termination
of the offering of the Securities will contain, an untrue statement of a
material fact or omitted, or will omit, to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were or will be made, not
misleading.
(b) Each preliminary prospectus relating to the Securities filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, when so filed, and the Registration Statement, at the time it
became effective, complied in all material respects with the provisions of
the 1933 Act and the 1933 Act Regulations; at the date hereof, at the
Closing Time (as defined herein) and at the Delivery Date (as defined
herein), if applicable, the Registration Statement and the Prospectus, and
any supplement or amendment thereto relating to the Securities, comply and
will comply in all material respects with the provisions of the 1933 Act
and the 1933 Act Regulations; and the Registration Statement and the
Prospectus, and any such supplement or amendment thereto relating to the
Securities, at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except
that this representation and warranty does not apply to statements or
omissions in the Registration Statement, the Prospectus or any preliminary
prospectus, or any amendment or supplement thereto, made in reliance upon
information furnished to the Company in writing by any Underwriter
expressly for use therein or to those parts of the Registration Statement
that constitute the Trustee's Statement of Eligibility on Form T-1 under
the 1939 Act (the "Form T-1"). There is no contract or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that
is not described or filed as required. In the event that the Registration
Statement (including any prospectus filed as part of the Registration
Statement), any preliminary prospectus or the Prospectus or any amendment
or supplement to any of the foregoing was or is filed electronically
pursuant to EDGAR, then the Registration Statement (including any
prospectus filed as part thereof), such preliminary prospectus, the
Prospectus and any such amendment or supplement delivered to the
Underwriters for use in connection with the offering of the Securities was
or will be, as the case may be, identical (as to content) to the
electronically transmitted copy thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(c) This Agreement has been duly authorized by each of the Trust and
Occidental and conforms in all material respects to the description thereof
in the Prospectus.
4
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(d) The Indenture has been duly authorized by Occidental.
(e) The Indenture (assuming the due authorization, execution and
delivery thereof by the Debt Trustee) is, and the Subordinated Debt
Securities (when executed by Occidental and authenticated and issued in
accordance with the Indenture and delivered to and paid for by the
purchaser thereof) will be, the legal, valid and binding obligations of
Occidental, enforceable against Occidental in accordance with their terms,
except as such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors' rights generally and
(B) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). The Preferred Securities
(when executed by the Trust and authenticated in accordance with the terms
of the Declaration and delivered to and paid for by the purchasers thereof)
will be entitled to the benefits of the Declaration (subject to the
exceptions set forth in the preceding sentence).
(f) Occidental and each of Occidental Chemical Holding Corporation, a
California corporation, and Occidental Oil and Gas Corporation, a
California corporation (each a "Principal Domestic Subsidiary" and
collectively the "Principal Domestic Subsidiaries") is a validly existing
corporation in good standing under the laws of its state of incorporation.
Occidental and each Principal Domestic Subsidiary has full corporate power
and authority to own its properties and carry on its business as presently
conducted, as described in the Prospectus, and is duly registered or
qualified to conduct business, and is in good standing, in each
jurisdiction in which it owns or leases property or transacts business and
in which such registration or qualification is necessary, except as to
jurisdictions where the failure to do so would not have a material adverse
effect on Occidental and its subsidiaries, taken as a whole. All of the
outstanding capital stock or other securities evidencing equity ownership
of each Principal Domestic Subsidiary has been duly and validly authorized
and issued and is fully paid and non-assessable, and is owned by
Occidental, directly or indirectly through subsidiaries, free and clear of
any security interest, claim, lien or encumbrance. There are no outstanding
rights, warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in
any such Principal Domestic Subsidiary, except for rights, warrants or
options held by Occidental.
(g) Except as contemplated in the Prospectus or reflected therein by
the filing of any amendment or supplement thereto or any Incorporated
Document, since the date of the most recent consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, unless Occidental has notified the
Underwriters as provided in Section 4(d) hereof, there has not been any
material adverse change in the consolidated financial condition of the
Company and its subsidiaries, taken as a whole.
(h) Occidental is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein (including, without limitation, the issuance and sale
of the Preferred Securities, the Preferred
5
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Securities Guarantee and the Subordinated Debt Securities) and compliance
by the Trust and Occidental with their respective obligations under this
Agreement and the Indenture will not conflict with or constitute a breach
of or a default (with the passage of time or otherwise) under (A) the
Restated Certificate of Incorporation or Bylaws of Occidental, in each
case, as amended, or the certificate of trust, as amended (the "Certificate
of Trust") of the Trust, (B) any agreement or instrument (which is,
individually or in the aggregate, material to Occidental and its
subsidiaries, taken as a whole, or the Trust) to which Occidental or the
Trust is a party or by which either is bound or (C) any order of any court
or governmental agency or authority presently in effect and applicable to
Occidental, any Principal Domestic Subsidiary or the Trust. Except for
orders, permits and similar authorizations required under the securities or
Blue Sky laws of certain jurisdictions, including jurisdictions outside the
United States, or required of any securities exchange on which any of the
Securities might be listed, no consent, approval, authorization or other
order of any regulatory body, administrative agency or other governmental
body is legally required for the valid issuance and sale of the Securities.
(i) To the best of Occidental's knowledge, the accountants who have
audited and reported upon the consolidated financial statements filed with
the Commission as part of the Registration Statement and the Prospectus are
independent accountants as required by the 1933 Act. The consolidated
financial statements included in the Registration Statement and Prospectus,
or incorporated therein by reference, fairly present the consolidated
financial position and results of operations of the entities to which such
statements relate at the respective dates and for the respective periods to
which they apply. Such consolidated financial statements have been prepared
in accordance with generally accepted accounting principles consistently
applied, except as set forth in the Registration Statement and Prospectus.
(j) The Preferred Securities Guarantee Agreement has been duly
authorized and, at the Closing Time, will have been duly executed by
Occidental and (assuming the due authorization, execution and delivery by
the Preferred Guarantee Trustee) constitutes the legal, valid and binding
agreement of Occidental enforceable against Occidental in accordance with
its terms, except as such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (B) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(k) The Preferred Securities, the Subordinated Debt Securities, the
Preferred Securities Guarantee, the Declaration and the Indenture will
conform in all material respects to the respective statements relating
thereto contained in the Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(l) The Declaration has been duly authorized by the Regular Trustees
(as defined in the Declaration), and, at the Closing Time, will have been
duly executed and delivered by the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration by the Property
Trustee under the Declaration (the "Property
6
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Trustee") and the Delaware Trustee under the Declaration (the "Delaware
Trustee" and, together with the Regular Trustees and the Property Trustee,
the "Trustees"), the Declaration will, at the Closing Time, be a valid and
binding obligation of the Regular Trustees, enforceable against the Regular
Trustees in accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the
enforcement of creditors' rights generally and (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and will conform in all material respects
to all statements relating thereto in the Prospectus; and at the Closing
Time, the Declaration will have been qualified under the 1939 Act.
(m) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Declaration) fully paid and non-
assessable undivided beneficial interests in the Trust and will be entitled
to the benefits of the Declaration; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and
(subject to the terms of the Declaration) holders of Preferred Securities
will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit.
(n) Additional Certifications. Any certificate signed by any officer
or trustee of the Offerors and delivered to the Underwriters or to counsel
for the Underwriters in connection with transactions contemplated hereby
shall be deemed a representation and warranty by the respective Offeror to
the Underwriters as to the matters covered thereby on the date of such
certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
------------------
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule B, the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Option Securities. In addition, on the basis of the representations and
-----------------
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 1,000,000 Preferred Securities at the
price per Preferred Security set forth in Schedule B, less an amount per
Preferred Security equal to any distributions declared by the Trust and payable
on the Initial Securities but not payable on the Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Initial Securities upon notice by the Representatives to the Trust and the
Guarantor setting forth the number of Option Securities as to which the several
Underwriters are
7
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then exercising the option and the time and date of payment and delivery (the
"Delivery Date") for such Option Securities. Any such time and a Delivery Date
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional Preferred Securities.
(c) Commission. As compensation to the Underwriters for their commitments
----------
hereunder and in view of the fact that the proceeds of the sale of the
Securities will be used to purchase the Subordinated Debt Securities of
Occidental, Occidental hereby agrees to pay to the Representatives, for the
accounts of the several Underwriters, a commission per Preferred Security set
forth in Schedule B as compensation to the Underwriters for their commitments
under this Agreement.
(d) Payment. Payment of the purchase price for, and delivery of
-------
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, 10877 Wilshire Boulevard, Los Angeles, California 90024, or at such
other place as shall be agreed upon by the Representatives and the Offerors, at
10:00 A.M. (Eastern time) on January 20, 1999 (unless postponed in accordance
with the provisions of Section 10), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Offerors (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives,
the Guarantor and the Trust, on each Delivery Date as specified in the notice
from the Representatives to the Guarantor and the Trust.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust to the Underwriters,
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Merrill Lynch, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the Delivery Date, as the case may be, but such payment shall
not relieve such Underwriter from its obligations hereunder.
At the Closing Time and on each Delivery Date, Occidental will pay, or
cause to be paid, the commission payable at such time to the Underwriters under
Section 2(c) hereof by wire transfer of immediately available funds to a bank
account designated by Merrill Lynch.
8
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(e) Denominations; Registration. Certificates for the Initial Securities
---------------------------
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Delivery Date, as the case
may be. The certificates for the Securities will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Delivery Date, as the case may be.
SECTION 3. Foreign Offerings.
-----------------
Each Underwriter, severally and not jointly, represents and agrees that (i)
it has not solicited, and will not solicit, offers to purchase any of the
Securities from, (ii) it has not sold, and will not sell, any of the Securities
to, and (iii) it has not distributed, and will not distribute, the Prospectus
to, any person or entity in any jurisdiction outside of the United States
(collectively "Foreign Offers and Sales") except, in each case, in compliance in
all material respects with all applicable laws and, in connection with the
initial offering of, or subscription for, any of the Securities, only with the
prior written consent of Occidental and in full compliance with any requirements
and procedures established by Occidental with respect to any such Foreign Offers
and Sales. For the purposes of this paragraph, "United States" means the United
States of America, its territories, its possessions (including the Commonwealth
of Puerto Rico) and other areas subject to its jurisdiction.
In particular and without limiting the generality of the foregoing:
(a) Each Underwriter, severally and not jointly, agrees to distribute,
in connection with any Foreign Offers and Sales, only those Prospectuses
used in connection therewith that have been appropriately "stickered" for
use in the jurisdiction in which such Foreign Offers and Sales are to be
made.
(b) With respect to the United Kingdom, each Underwriter, severally
and not jointly, represents and agrees that (A) it has not offered or sold
and, prior to the expiry of the period of six months from the Closing Time,
will not offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (B) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986 (the "Financial Services Act") with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom and (C) it has only issued or passed
on, and will only issue or pass on, in the United Kingdom any document
received by it in connection with the issue of the Securities, other than
any document which consists of or any part of listing particulars,
supplementary listing particulars or any other document required or
permitted to be published by listing rules under Part IV of the Financial
Services Act, to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be
issued or passed on.
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(c) With respect to Japan, each Underwriter understands that the
Securities have not been, and will not be, registered under the Securities
and Exchange Law of Japan, and, accordingly, each Underwriter, severally
and not jointly, represents and agrees that in connection with the initial
offering of any of the Securities, it has not, directly or indirectly,
offered or sold, and will not, directly or indirectly, offer or sell, any
of the Securities in Japan or to any resident of Japan (including any
corporation or other entity incorporated or organized under the laws of
Japan), or to others for re-offering or resale, directly or indirectly, in
Japan or to any such resident of Japan, except, in each case, in compliance
in all material respects with the Securities and Exchange Law of Japan.
With respect to the Provinces of Canada (the "Provinces"), each Underwriter,
severally and not jointly, represents and agrees that, in connection with the
initial offering of any of the Securities, (A) it will not, directly or
indirectly, offer or sell any of the Securities in any of the Provinces or to,
or for the benefit of, any resident of any of the Provinces after the date (the
"Canadian Ending Date") set by Occidental for the end of the offer of such
Securities, and, without the prior written consent of Occidental, it will not
distribute or permit to be distributed any Prospectus in any of the Provinces or
to, or for the benefit of, any resident of any of the Provinces after the
Canadian Ending Date, (B) with respect to anything done by such Underwriter in
relation to the Securities in, from, or otherwise involving, any of the
Provinces, it has complied, and will comply, in all material respects, with all
applicable provisions of the securities legislation of Canada and the Provinces
(the "Canadian Securities Legislation") (including, without limitation, the
conveyance, or the provision of assistance to Occidental in conveying, any right
of rescission, damages or other right as required by applicable Canadian
Securities Legislation) so that any offer or sale of any of the Securities in
the Provinces, or any of them, will qualify for exemptions from prospectus,
registration and equivalent requirements, or exemptions from other applicable
requirements, as prescribed by the Canadian Securities Legislation in force at
the time when such offer or sale is made, provided that such offer or sale is
made pursuant to the Prospectus, as supplemented to the extent required by the
Canadian Securities Legislation (the Prospectus, as so supplemented, hereinafter
referred to as the "Canadian Offering Memorandum"), (C) with respect to
Securities offered or sold, or to be offered or sold, by such Underwriter, or
Securities purchased, or to be purchased, by such Underwriter, it has provided,
and will provide, investors, where required pursuant to the provisions of
applicable Canadian Securities Legislation, with (1) the Canadian Offering
Memorandum, and (2) a list of the documents filed by Occidental with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of the Prospectus, dated January 13, 1999, and will
obtain from each of such investors an acknowledgement in form satisfactory to
Occidental, and (D) with respect to any such sale of the Securities made by such
Underwriter, it will effect all necessary filings in connection with such sale,
including, without limitation, any required filings of (x) reports of trades and
(y) the Canadian Offering Memorandum, in each case with provincial securities
commissions, as required pursuant to the provisions of applicable Canadian
Securities Legislation.
SECTION 4. Covenants of the Offerors. Each of the Offerors jointly and
-------------------------
severally covenants with each Underwriter as follows:
(a) Notice of Certain Events. During the period from the date hereof
------------------------
to and including the time at which the distribution of the Securities is
completed, the Offerors
10
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will notify the Representatives promptly (i) of the effectiveness of any
post-effective amendment to the Registration Statement, (ii) of the receipt
of any comments from the Commission with respect to the Registration
Statement, the Rule 462(b) Registration Statement or the Prospectus, (iii)
of any request by the Commission for any amendment to the Registration
Statement or the Rule 462(b) Registration Statement or any amendment or
supplement to the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the Rule 462(b) Registration Statement or
the initiation of any proceedings for that purpose. The Offerors will make
every reasonable effort to prevent the issuance of any such stop order and,
if any such stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Proposed Filings. During the period from the date hereof to and
----------------
including the Closing Time, the Offerors will not file any amendment or
supplement to the Registration Statement or the Rule 462(b) Registration
Statement, or file any amendment or supplement to the Prospectus, in any
such case relating to the Securities, of which the Representatives shall
not previously have been advised or to which the Representatives shall
reasonably object in writing, unless, in the judgment of the Offerors and
its counsel, such amendment or supplement is necessary to comply with law.
(c) Copies of the Registration Statement, the Rule 462(b) Registration
------------------------------------------------------------------
Statement and the Prospectus. The Company will deliver to each of the
----------------------------
Underwriters one copy of the signed and as many conformed copies of the
Registration Statement (as originally filed), the Rule 462(b) Registration
Statement, if any, and of each amendment thereto relating to the Securities
(including the Incorporated Documents and any exhibits filed therewith or
incorporated by reference therein) as the Underwriters may reasonably
request. The Offerors will furnish to the Underwriters as many copies of
the Prospectus (as amended or supplemented) as the Underwriters shall
reasonably request so long as the Underwriters are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase
the Securities.
(d) Revisions of Prospectus--Material Changes. So long as the
-----------------------------------------
Underwriters are required to deliver a Prospectus in connection with sales
or solicitations of offers to purchase the Securities, if any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Offerors and of counsel for the Underwriters, to
further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, prompt notice shall be given to the Underwriters, and
the Offerors will promptly prepare and file an amendment or supplement to
the Prospectus so that the Prospectus, as amended or supplemented, will not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to the Underwriters.
11
<PAGE>
(e) Earnings Statements. Occidental will, on behalf of the Trust, make
-------------------
generally available to the Trust's security holders a consolidated earnings
statement of Occidental (which need not be audited) covering a period of at
least twelve months commencing after the Closing Time (but in no event
commencing later than 90 days after the Closing Time), as soon as is
reasonably practicable after the end of such period, which earnings
statement shall satisfy the provisions of Section 11(a) and Rule 158 of the
1933 Act.
(f) Blue Sky Qualifications. The Offerors will endeavor, in
-----------------------
cooperation with the Representatives, to qualify the Preferred Securities
and the Subordinated Debt Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representatives may reasonably designate (provided no registration shall be
required in any jurisdiction outside the United States), and will maintain
such qualifications in effect for as long as may be required for the
distribution of the Preferred Securities and the Subordinated Debt
Securities; provided, however, that the Offerors will promptly notify the
Underwriters of any suspension of any such qualifications; and provided,
further, that the Offerors shall not be obligated to register or qualify as
a foreign corporation or take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) Filing of Prospectus. Immediately following the execution and
--------------------
delivery of this Agreement, the Offerors will prepare and file or transmit
for filing with the Commission in accordance with Rule 424(b), copies of a
supplement to the Prospectus containing the terms of the Securities and
such other information as the Underwriters and the Offerors deem
appropriate.
(h) Listing. The Offerors will use their reasonable best efforts to
-------
effect the listing of the Preferred Securities on the New York Stock
Exchange; if the Preferred Securities are exchanged for Subordinated Debt
Securities, Occidental will use its reasonable best efforts to effect the
listing of the Subordinated Debt Securities on the exchange on which the
Preferred Securities were then listed.
(i) Restriction on Sale of Securities. During a period of 30 days from
---------------------------------
the date of the Prospectus, neither the Trust nor Occidental will, without
the prior written consent of Merrill Lynch, directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of any Preferred Securities or
any securities convertible into or exercisable or exchangeable for
Preferred Securities to investors other than institutional investors, or
file any registration statement under the 1933 Act with respect to any of
the foregoing. The foregoing sentence shall not apply to any of the
Securities to be sold hereunder.
SECTION 5. Payment of Expenses.
-------------------
(a) Expenses. Occidental will pay all expenses incident to the
--------
performance of each Offeror's obligations under this Agreement, including:
12
<PAGE>
(i) the preparation and filing of the Registration Statement,
the Rule 462(b) Registration Statement and all amendments thereto and
the Prospectus, any Term Sheets and any amendments or supplements
thereto and all Incorporated Documents;
(ii) the preparation, filing and printing of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters;
(iv) the fees and disbursements of Occidental's and the Trust's
counsel, accountants and other advisors;
(v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 4(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto;
(vi) the preparation, printing and delivery to the Underwriters
of copies of the Blue Sky Survey and any supplement thereto;
(vii) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.
relating to the offering made hereby;
(viii) the fees and expenses of the Debt Trustee, including the
fees and disbursements of counsel for the Debt Trustee, in connection
with the Indenture and the Subordinated Debt Securities;
(ix) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the
Property Trustee and Delaware Trustee, in connection with the
Declaration and the Certificate of Trust;
(x) the fees and expenses of the Preferred Guarantee Trustee,
including the fees and disbursements of counsel for the Preferred
Guarantee Trustee;
(xi) any fees charged by rating agencies for the rating of the
Preferred Securities;
(xii) the fees and expenses incurred in connection with the
listing of the Preferred Securities and, if applicable, the
Subordinated Debt Securities on the New York Stock Exchange;
(xiii) the fees and expenses of any transfer agent or registrar
for the Securities; and
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<PAGE>
(xiv) the cost of qualifying the Preferred Securities with The
Depository Trust Company.
(b) Termination of Agreement. If this Agreement is terminated
------------------------
pursuant to any of the provisions hereof (otherwise than by notice given by
the Representatives in connection with the occurrence of any event set
forth in clauses (ii) through (iv) of Section 10(a)), Occidental shall
reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof and
the accuracy of the statements made in any certificate furnished by either
Offeror pursuant to the provisions hereof, to the performance and observance by
the Offerors of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) At the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall be instituted or threatened or, to the knowledge of the
Offerors or the Underwriters, contemplated by the Commission; no stop order
suspending the sale of the Securities in any jurisdiction designated by the
Representatives pursuant to Section 4(f) shall have been issued and no
proceedings for that purpose shall have been instituted or threatened or,
to the knowledge of the Offerors or the Underwriters, shall be
contemplated; any request of the Commission for additional information (to
be included in the Registration Statement or Prospectus or otherwise) shall
have been complied with to the satisfaction of the Representatives. The
supplement to the Prospectus referred to in Section 4(g) of this Agreement
shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period, and prior to Closing Time the
Offerors shall have provided evidence satisfactory to the Representatives
of such timely filing.
(b) The Underwriters shall have received an opinion from Robert E.
Sawyer, Esq., Associate General Counsel for Occidental, dated as of the
Closing Time and in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Occidental has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware. Each
Principal Domestic Subsidiary is validly existing in good standing
under the laws of its state of incorporation.
(ii) Occidental has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement, the
Declaration, the Indenture and each of the Guarantee Agreements, to
borrow money as contemplated in this Agreement and the Indenture, and
to issue, sell and deliver the Subordinated Debt Securities, and to
purchase, own and hold the Common Securities issued by the Trust.
14
<PAGE>
(iii) This Agreement, the Guarantee Agreements and the
Subordinated Debt Securities have been duly authorized, executed and
delivered by Occidental.
(iv) The Declaration has been duly authorized, executed and
delivered by the Guarantor and each of the Regular Trustees.
(v) The Indenture has been duly authorized, executed and
delivered by Occidental and (assuming the due authorization, execution
and delivery of the Indenture by the Debt Trustee) is a valid and
binding agreement of Occidental enforceable against Occidental in
accordance with its terms, except that such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (B) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(vi) No consent or approval of any United States governmental
authority or other United States person or United States entity is
required in connection with the issuance or sale of the Securities
other than registration thereof under the 1933 Act, qualification of
the Indenture under the 1939 Act, and such registrations or
qualifications as may be necessary under the securities or Blue Sky
laws of the various United States jurisdictions in which the
Securities are to be offered or sold.
(vii) The Subordinated Debt Securities have been duly authorized
by Occidental and, when executed by Occidental and authenticated by
the Debt Trustee in accordance with the terms of the Indenture
(assuming the due authorization, execution and delivery of the
Indenture by the Debt Trustee) and issued to and paid for by the
Trust, will be entitled to the benefits of the Indenture and will be
valid and binding obligations of Occidental enforceable against
Occidental in accordance with their terms, except that such
enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether such enforcement is sought
in a proceeding in equity or at law).
(viii) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective under the 1933 Act and
the Indenture has been qualified under the 1939 Act, and, to the best
of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated.
(ix) The execution, delivery and performance of this Agreement,
the Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debt Securities, the Guarantee Agreements
and the Guarantees and the consummation of the transactions
contemplated herein and therein and compliance by the Offerors with
their respective obligations hereunder and
15
<PAGE>
thereunder will not conflict with or constitute a breach of or a
default (with the passage of time or otherwise) under (A) the Restated
Certificate of Incorporation or Bylaws of Occidental, in each case, as
amended, or the Declaration or the Certificate of Trust, (B) any
statute, law or regulation to which Occidental or any Principal
Domestic Subsidiary or any of their respective properties may be
subject or (C) any judgment, decree or order, known to such counsel,
after reasonable inquiry, of any court or governmental agency or
authority entered in any proceeding to which Occidental or any
Principal Domestic Subsidiary was or is now a party or by which it is
bound, except that such counsel may state that the opinion set forth
in clause (B) of this paragraph (ix) is limited to those statutes,
laws or regulations in effect on the date of such opinion which, in
such counsel's experience, are normally applicable to transactions of
the type contemplated by this Agreement and that such counsel
expresses no opinion as to the securities or Blue Sky laws of the
various jurisdictions in which the Securities are to be offered.
(x) The Registration Statement and the Rule 462(b)
Registration Statement as of their respective effective dates, and the
Prospectus, as of its date, including each Incorporated Document when
such Incorporated Document was filed or became effective, or if any
such Incorporated Document was amended, when such amendment was filed
or became effective, appeared on their face to be appropriately
responsive in all material respects to the applicable requirements of
the 1933 Act or the 1934 Act, as the case may be, except that in each
case such counsel need not express an opinion as to the financial
statements and schedules and other financial data included or
incorporated by reference therein or as to the Form T-1.
(xi) The statements in the Prospectus under the captions
"Certain Terms of the Subordinated Notes," "Description of Senior Debt
Securities," "Description of Subordinated Debt Securities,"
"Description of Preferred Securities Guarantees" and "Relationship
Among Preferred Securities, Preferred Securities Guarantees and
Subordinated Debt Securities Held by Each Trust," insofar as they
purport to summarize certain provisions of documents specifically
referred to therein, are in all material respects accurate summaries
of such provisions.
(xii) Except as set forth in the Prospectus (including the
Incorporated Documents), there is not pending or, to the knowledge of
such counsel, after reasonable inquiry, threatened any action, suit or
proceeding against Occidental or any of its subsidiaries before or by
any court or governmental agency or body, which is likely (to the
extent not covered by insurance) to have a material adverse effect on
the consolidated financial condition of Occidental and its
subsidiaries, taken as a whole.
(xiii) All of the issued and outstanding Common Securities of the
Trust are directly owned of record by the Guarantor free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for the
16
<PAGE>
restrictions on transfer set forth in the Declaration and except that
such counsel may state that in rendering the opinion set forth in this
paragraph (xiii) regarding security interests, mortgages, pledges,
liens, encumbrances, claims and equities on the Common Securities of
the Trust such counsel has not undertaken any independent
investigation of the public record.
(xiv) To the best of such counsel's knowledge, after reasonable
inquiry, there is no contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xv) To the best of such counsel's knowledge, after reasonable
inquiry, Occidental is not in violation of its Restated Certificate of
Incorporation or Bylaws, in each case, as amended.
(xvi) To the best of such counsel's knowledge, after reasonable
inquiry, the execution and delivery of this Agreement and the
Indenture by Occidental, the issuance and sale of the Subordinated
Debt Securities and the performance by Occidental of its obligations
under this Agreement and the Indenture will not conflict with or
constitute a breach of or a default (with the passage of time or
otherwise) under any agreement or instrument that is, individually or
in the aggregate, material to Occidental and its subsidiaries, taken
as a whole, and to which Occidental is a party or by which it is
bound.
(xvii) The Declaration and the Preferred Securities Guarantee
have been duly qualified under the 1939 Act.
(xviii) The Preferred Securities Guarantee Agreement has been
duly authorized, executed and delivered by the Guarantor and, assuming
due authorization, execution and delivery by The Bank of New York,
constitutes a valid and binding obligation of the Guarantor,
enforceable against the Guarantor 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 the Preferred Securities
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 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
17
<PAGE>
the action or inaction involves gross negligence, recklessness,
willful misconduct or unlawful conduct.
In rendering such opinion such counsel may state that with respect to
certain matters he has relied upon advice of other counsel employed by
Occidental who are more familiar with such matters.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Offerors, outside
counsel for the Offerors, representatives of the independent public accountants
for Occidental, representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the Registration Statement,
the Rule 462(b) Registration Statement and Prospectus and related matters were
discussed and, although he is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Rule 462(b) Registration Statement
or the Prospectus (other than as set forth in paragraph (xi) above) and has not
made any independent check or verification thereof, on the basis of the
foregoing, nothing has come to such counsel's attention that leads him to
believe that either the Registration Statement (including the Incorporated
Documents) at the time such Registration Statement became effective, (or if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by Occidental with the Commission subsequent to the effectiveness of
the Registration Statement and prior to the date of such statement, then at the
time such amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference therein), as the
case may be) or the Rule 462(b) Registration Statement at the time such Rule
462(b) Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus (including the Incorporated Documents) as of its date and as of the
Closing Time contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that such counsel need express no opinion with respect to the
financial statements, schedules and other financial data included or
incorporated by reference in the Registration Statement, the Rule 462(b)
Registration Statement or Prospectus or with respect to the Form T-1.
(c) The Underwriters shall have received an opinion from Skadden,
Arps, Slate, Meagher and Flom LLP, dated as of the Closing Time and in form
and substance satisfactory to counsel for the Underwriters, covering the
matters set forth in Exhibit A.
(d) The Underwriters shall have received an opinion from Emmet, Marvin
& Martin llp, dated as of the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, covering the matters set
forth in Exhibit B.
(e) The Underwriters shall have received an opinion from Richards,
Layton & Finger, P.A., dated as of the Closing Time and in form and
substance satisfactory to counsel for the Underwriters, covering the
matters set forth in Exhibit C.
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<PAGE>
(f) The Underwriters shall have received an opinion from Brown & Wood
llp, counsel to the Underwriters, dated as of the Closing Time and in form
and substance satisfactory to the Underwriters.
(g) Officer's and Trustee's Certificates. Except as contemplated in
------------------------------------
the Prospectus or reflected therein by the filing of any amendment or
supplement thereto or any Incorporated Document, at the Closing Time, there
shall not have been, since the date of the most recent consolidated
financial statements included or incorporated by reference in the
Prospectus, any material adverse change in the consolidated financial
condition of Occidental and its subsidiaries, taken as a whole. The
Underwriters shall have received (i) a certificate, dated as of the Closing
Time, of a Vice President of Occidental to the effect (a) that there has
been no such material adverse change, (b) that the representations and
warranties of Occidental in Section 1 hereof (other than Section 1(g)) are
true and correct in all material respects with the same force and effect as
though expressly made at and as of the date of such certificate, (c) that
Occidental has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder or under the Indenture at
or prior to the Closing Time and (d) that no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
best of such officer's knowledge, no proceedings for that purpose have been
initiated or are threatened by the Commission, and (ii) a certificate,
dated as of the Closing Time, of a Regular Trustee of the Trust, to the
effect (a) that the representations and warranties of the Trust in Section
1 hereof (other than Section 1(g)) are true and correct in all material
respects with the same force and effect as though expressly made at and as
of the date of such certificate, (b) that the Trust has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or under the Indenture at or prior to the Closing Time
and (c) that no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of such Regular Trustee's
knowledge, no proceedings for that purpose have been initiated or are
threatened by the Commission.
(h) Comfort Letter. On the date hereof, the Underwriters shall have
--------------
received a letter from Occidental's independent public accountants, dated
as of the date hereof and in form and substance satisfactory to the
Underwriters, containing statements and information of a type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the Prospectus;
and, if financial statements for any assets, business or entity acquired by
Occidental are included or incorporated by reference in the Registration
Statement or the Prospectus, the Underwriters shall have received a similar
"comfort letter" from a firm of independent public accountants, dated as of
the date hereof and in form and substance satisfactory to the
Representatives, with respect to such financial statements and any
financial information with respect to such assets, business or entity, as
the case may be, contained or incorporated by reference in the Registration
Statement and the Prospectus. Without limitation to the foregoing, the
letter delivered by Occidental's independent public accountants shall state
that nothing has come to their attention that caused them to believe that
at a specified date not more than five days prior to the date of such
letter, there was any change in the outstanding capital stock of Occidental
or any increase in consolidated
19
<PAGE>
long-term debt of Occidental or any decrease in the stockholders' equity of
Occidental, in each case as compared with the amounts shown on the most
recent consolidated balance sheet of Occidental incorporated by reference
in the Registration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than five days
prior to the date of such letter, there were any decreases, as compared
with the corresponding period in the preceding year, in consolidated net
sales and operating revenues or net income of Occidental, except in each
such case as set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as shall
have been agreed to by the Representatives and Occidental.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives
-------------------------
shall have received from Occidental's independent public accountants a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their letter furnished pursuant to subsection (h) of
this Section, except that the specified date referred to shall be a date
not more than five days prior to Closing Time.
(j) Maintenance of Rating. At Closing Time, the Preferred Securities
---------------------
shall be rated in one of the four highest rating categories for long term
debt ("Investment Grade") by any nationally recognized statistical rating
agency, and the Trust shall have delivered to the Representatives a letter,
dated the Closing Time, from such nationally recognized statistical rating
agency, or other evidence satisfactory to the Representatives, confirming
that the Preferred Securities have Investment Grade ratings.
(k) Approval of Listing. At Closing Time, the Preferred Securities
-------------------
shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(l) Additional Documents. At Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with resolutions of Occidental's
Board of Directors authorizing and approving the issuance and sale of the
Securities and matters related thereto and such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(m) Conditions to Purchase of Option Securities. In the event that the
-------------------------------------------
Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations
and warranties of the Offerors contained herein and the statements in any
certificates furnished by the Offerors hereunder shall be true and correct
as of each Delivery Date and, at the relevant Delivery Date, the
Representatives shall have received:
(i) Officers' and Trustee's Certificates. A certificate, dated
------------------------------------
such Delivery Date, of (i) a Vice President of Occidental and (ii) a
Regular Trustee of the Trust confirming that the certificates
delivered at the Closing Time pursuant to
20
<PAGE>
Section 6(g) hereof, as the case may be, remain true and correct as of
such Delivery Date.
(ii) Opinions of Counsel for Company. The favorable opinions of
-------------------------------
(A) Robert E. Sawyer, Esq., Associate General Counsel for Occidental,
(B) Skadden, Arps, Slate, Meagher and Flom LLP, (C) Emmet, Marvin &
Martin llp and (D) Richards, Layton & Finger, P.A., in form and
substance satisfactory to counsel for the Underwriters, dated such
Delivery Date, relating to the Option Securities to be purchased on
such Delivery Date and otherwise to the same effect as the opinions
required by Section 6(b), 6(c), 6(d) and 6(e) respectively hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion
-----------------------------------
of Brown & Wood LLP, special counsel for the Underwriters, relating to
the Option Securities to be purchased on such Delivery Date and
otherwise to the same effect as the opinion required by Section 6(f)
hereof.
(iv) Bring-down Comfort Letter. A letter from Occidental's
-------------------------
independent public accountants, substantially the same in form and
substance as the letter furnished to the Representatives pursuant to
Section 5(h) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Delivery Date.
(n) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Delivery Date which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the
Offerors at any time at or prior to Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 5, and except that the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof and the provisions of
Section 9 hereof shall remain in effect.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
-------------------------------
severally indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (including, subject to the limitations set forth in
subsection (c) below, the reasonable fees and disbursements of counsel
chosen by the Underwriters), as incurred, insofar as such loss,
liability, claim, damage or expense arises out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arises out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or the omission or alleged
21
<PAGE>
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (including, subject to the limitations set forth in
subsection (c) below, the reasonable fees and disbursements of counsel
chosen by the Underwriters), as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever, insofar as such
loss, liability, claim, damage or expense arises out of any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
Occidental; and
(iii) against any and all expense whatsoever (including, subject
to the limitations set forth in subsection (c) below, the reasonable
fees and disbursements of counsel chosen by the Underwriters), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any
such alleged untrue statement or omission;
provided, however, that this indemnity shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of or
based upon any untrue statement or omission or alleged untrue statement or
omission made in reliance upon the Form T-1 under the 1939 Act filed as an
exhibit to the Registration Statement; or (B) to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission in
the Prospectus, if such untrue statement or alleged untrue statement or
omission or alleged omission is corrected in an amendment or supplement to
the Prospectus and if, having previously been furnished by or on behalf of
the Trust or Occidental with copies of the Prospectus, as so amended or
supplemented, such Underwriter thereafter failed to deliver such
Prospectus, as so amended or supplemented, prior to or concurrently with
the sale of a Security or Securities to the person asserting such loss,
liability, claim, damage or expense who purchased such Security or
Securities that are the subject thereof from such Underwriter; or (C) as to
which such Underwriter may be required to indemnify the Trust or Occidental
pursuant to the provisions of subsection (c) of this Section 7; or (D) if
such loss, liability, claim, damage or expense is covered by any other
written agreement between the Trust or Occidental and such Underwriter
pertaining to the sale of the Securities pursuant to which such Underwriter
may be required to indemnify the Offerors for such loss, liability, claim,
damage or expense.
(b) Indemnification of the Trust. Occidental agrees to indemnify the
----------------------------
Trust against all loss, liability, claim, damage and expense whatsoever, as
due from the Trust under Section 7(a) hereunder.
(c) Indemnification of the Offerors. Each Underwriter agrees,
-------------------------------
severally and not jointly, to indemnify and hold harmless the Offerors,
their directors, their trustees,
22
<PAGE>
each of their officers who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section 7, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Trust or Occidental by or on
behalf of any such Underwriter expressly for use in the Registration
Statement or the Prospectus.
(d) General.
-------
(1) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought against any Underwriter or any person controlling such
Underwriter, based upon the Registration Statement or the
Prospectus and with respect to which indemnity may be sought
against the Trust or Occidental pursuant to this Section 7, such
Underwriter or controlling person shall promptly notify
Occidental in writing, and Occidental shall assume the defense
thereof, including the employment of counsel and payment of all
expenses. Any such Underwriter or any such controlling person
shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall
be at the expense of such Underwriter or such controlling person,
unless (A) the employment of such counsel shall have been
specifically authorized in writing by Occidental, (B) Occidental
shall have failed to assume the defense and employ counsel or (C)
the named parties to any such action, suit or proceeding
(including any impleaded parties) shall include both such
Underwriter or such controlling person and the Trust or
Occidental, and such Underwriter or such controlling person shall
have been advised by such counsel that there may be one or more
legal defenses available to it that are different from, or
additional to, those available to the Trust or Occidental (in
which case, if such Underwriter or such controlling person
notifies Occidental in writing that it elects to employ separate
counsel at the expense of Occidental, Occidental shall not have
the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling
person, it being understood, however, that Occidental shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for
all such Underwriters and all such controlling persons, which
firm shall be designated in writing by the Representatives, on
behalf of all such Underwriters and all such controlling
persons).
(2) In case any action, suit or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought
23
<PAGE>
against the Trust or Occidental, any of their directors, officers
or trustees, or any person controlling either Occidental or the
Trust, with respect to which indemnity may be sought against any
Underwriter pursuant to this Section 7, such Underwriter shall
have the rights and duties given to Occidental by subsection
(d)(i) of this Section 7, and Occidental, the Trust, their
directors, officers and trustees and any such controlling person
shall have the rights and duties given to the Underwriters by
subsection (d)(i) of this Section 7.
SECTION 8. Contribution.
------------
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 7 hereof is for any reason
held to be unenforceable by the indemnified parties, although applicable in
accordance with its terms, each indemnified party shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by Occidental, on the one hand, and each of the Underwriters,
on the other hand, from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Trust and
Occidental, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages and expenses. The relative benefits received by
Occidental, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportions as the total net proceeds from the sale of
the Securities (before deducting expenses) received by the Trust as set forth on
the cover page of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet, on the one hand, and the total underwriting
discounts and commissions received by each Underwriter, on the other hand, bear
to the total purchase price to the public of the Securities as set forth on such
cover page. The relative fault of the Trust or Occidental, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by Occidental or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Securities they have purchased hereunder, and not
joint. Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of Occidental, each officer of Occidental who signed the Registration
Statement, each trustee of the Trust and each person, if any, who controls
24
<PAGE>
Occidental or the Trust within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as Occidental. Any party entitled to
contribution hereunder will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
8, notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have otherwise than under this Section 8.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers or trustees of the Offerors submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Offerors, and shall survive delivery of the Securities to
the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Time if (i) between the
date hereof and the Closing Date, there shall have been any material
adverse change in the consolidated financial condition of the Trust or of
Occidental and its subsidiaries, taken as a whole, (ii) there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis, the effect of which shall be such as to
make it, in the reasonable judgment of the Representatives, impracticable
to market or to enforce contracts for sale of the Securities, (iii) trading
in any securities of Occidental shall have been suspended by the Commission
or a national securities exchange in the United States, or if trading
generally on the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, by said exchange
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities, (iv) since the date of this Agreement, any nationally
recognized securities rating agency in the United States shall have
publicly announced that it has (A) placed the Securities or Occidental's
long-term debt generally on what is commonly termed a "watch list" for
possible downgrading or (B) downgraded the Securities or Occidental's long-
term debt generally, or (v) the Offerors shall have failed to furnish or
cause to be furnished the certificates, opinions or letters referred to in
Section 6 hereof.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party
except as provided in Section 5 hereof.
SECTION 11. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Delivery Date to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or
25
<PAGE>
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Securities to be purchased on such date pursuant to this Agreement, each of
the non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date pursuant to this Agreement, this
Agreement or, with respect to any Delivery Date which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Offerors to sell
the Option Securities to be purchased and sold on such Delivery Date shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, or, in the case of a Delivery Date which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, either the Representatives or the Offerors shall have the
right to postpone Closing Time or the relevant Delivery Date, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 11.
SECTION 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if delivered, mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to them care of Merrill Lynch at 10877 Wilshire
Boulevard, Suite 1900, Los Angeles, California 90024, attention of Harry T.
McMahon III; notices to the Trust and Occidental shall be directed to them at
10889 Wilshire Boulevard, Los Angeles, California 90024, attention of Vice
President and Treasurer.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Trust and Occidental and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and Occidental and their respective successors and
the controlling persons and officers, directors and trustees referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Trust and Occidental and their respective successors, and said
controlling persons and officers, directors and trustees and their heirs and
legal
26
<PAGE>
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. This Agreement shall be governed by and
----------------------
construed in accordance with the laws of the State of New York including,
without limitation, Section 5-1401 of the New York General Obligations Law.
Except as otherwise set forth herein, specified times of day refer to New York
City time.
SECTION 15. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereoF.
27
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters, the Trust and the Guarantor in accordance with its terms.
Very truly yours,
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ J. R. Havert
-----------------------------------
Name: J. R. Havert
Title: Vice President and Treasurer
OXY CAPITAL TRUST I
By: /s/ J. R. Havert
-----------------------------
Name: J. R. Havert
Title: Regular Trustee
By: /s/ A. R. Leach
-----------------------------
Name: A. R. Leach
Title: Regular Trustee
By: /s/ John Zaylor
-----------------------------
Name: John Zaylor
Title: Regular Trustee
28
<PAGE>
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
A.G. EDWARDS & SONS, INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Harry T. McMahon, III
---------------------------------------
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
29
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Name of Underwriter Number of
Securities
- ------------------------------------------------------------------------------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith 2,050,000
Incorporated................................................
A.G. Edwards & Sons, Inc................................................ 2,050,000
Morgan Stanley & Co. Incorporated....................................... 2,050,000
PaineWebber Incorporated................................................ 2,050,000
Prudential Securities Incorporated...................................... 2,050,000
Salomon Smith Barney Inc................................................ 2,050,000
ABN AMRO Incorporated................................................... 200,000
BT Alex. Brown Incorporated............................................. 200,000
Robert W. Baird & Co. Incorporated...................................... 200,000
Bear, Stearns & Co. Inc................................................. 200,000
BNY Capital Markets, Inc................................................ 200,000
CIBC Oppenheimer Corp................................................... 200,000
Credit Suisse First Boston Corporation.................................. 200,000
Dain Rauscher Incorporated.............................................. 200,000
Donaldson, Lufkin & Jenrette Securities Corporation..................... 200,000
EVEREN Securities, Inc.................................................. 200,000
Fleet Securities, Inc................................................... 200,000
Goldman, Sachs & Co..................................................... 200,000
Legg Mason Wood Walker, Incorporated.................................... 200,000
NationsBanc Montgomery Securities LLC................................... 200,000
OLDE Discount Corporation............................................... 200,000
Petrie Parkman & Co., Inc............................................... 200,000
Piper Jaffray Inc....................................................... 200,000
Raymond James & Associates, Inc......................................... 200,000
SG Cowen Securities Corporation......................................... 200,000
Scotia Capital Markets (USA) Inc........................................ 200,000
TD Securities (USA) Inc................................................. 200,000
Tucker Anthony Incorporated............................................. 200,000
Warburg Dillon Read LLC................................................. 200,000
Wheat First Securities, Inc............................................. 200,000
Advest, Inc............................................................. 100,000
J.C. Bradford & Co...................................................... 100,000
Craigie Incorporated.................................................... 100,000
Crowell, Weedon & Co.................................................... 100,000
Fahnestock & Co. Inc.................................................... 100,000
Fidelity Capital Markets, A Division of National Financial Services
Corp................................................................... 100,000
Fifth Third/The Ohio Company............................................ 100,000
First Albany Corporation................................................ 100,000
Gibraltar Securities Co................................................. 100,000
Gruntal & Co., L.L.C.................................................... 100,000
</TABLE>
Sch A-1
<PAGE>
<TABLE>
<S> <C>
Hilliard Lyons Inc...................................................... 100,000
Howe Barnes Investments, Inc............................................ 100,000
Wayne Hummer Investments LLC............................................ 100,000
Janney Montgomery Scott Inc............................................. 100,000
Kirkpatrick, Pettis, Smith, Polian Inc.................................. 100,000
McDonald Investments Inc., a KeyCorp Company............................ 100,000
McGinn, Smith & Co., Inc................................................ 100,000
Mesirow Financial, Inc.................................................. 100,000
Morgan Keegan & Company, Inc............................................ 100,000
David A. Noyes & Company................................................ 100,000
Parker/Hunter Incorporated.............................................. 100,000
The Robinson-Humphrey Company, LLC...................................... 100,000
Roney Capital Markets, A Division of First Chicago Capital Markets, Inc. 100,000
Scott & Stringfellow, Inc............................................... 100,000
Stephens Inc............................................................ 100,000
Stifel, Nicolaus & Company, Incorporated................................ 100,000
Stone & Youngberg....................................................... 100,000
Trilon International Inc................................................ 100,000
Utendahl Capital Partners, L.P.......................................... 100,000
----------
Total.................................................... 20,000,000
==========
</TABLE>
Sch A-2
<PAGE>
SCHEDULE B
OXY CAPITAL TRUST I
8.16% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount of $25 Per Preferred Security)
1. The initial public offering price per security for the Preferred
Securities, determined as provided in said Section 2, shall be $25.00.
2. The purchase price per security for the Preferred Securities to be paid
by the several Underwriters shall be $25.00, being an amount equal to the
initial public offering price set forth above; provided that the purchase price
per Preferred Security for any Option Securities purchased upon exercise of the
over-allotment option described in Section 2(b) shall be increased by an amount
per Preferred Security equal to any accrued distributions from, and including,
January 20, 1999 to, but excluding, the Delivery Date on which such Option
Securities are purchased.
3. The commission per Preferred Security to be paid by Occidental
Petroleum Corporation to the Underwriters for their commitments hereunder shall
be $.7875.
Sch B-1
<PAGE>
Exhibit A
1. The statements in the Prospectus under the captions "Certain Terms of
the Preferred Securities" and "Description of Preferred Securities," insofar as
they constitute summaries of legal matters or documents, have been reviewed by
us and are accurate in all material respects.
2. The Trust is not an "investment company" within the meaning of the
1940 Act.
3. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act; all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; under the Delaware
Act and the Declaration, the Trust has the business trust power and authority to
(x) own property and conduct its business, all as described in the Prospectus,
(y) enter into and perform its obligations under the Underwriting Agreement, and
(z) issue and perform its obligations under the Preferred Securities and the
Common Securities.
4. Assuming the Declaration has been duly authorized, executed and
delivered by the Trustees and the Company, the Declaration is a valid and
binding obligation of the Company and the Regular Trustees, enforceable against
the Company and the Regular Trustees, in accordance with its terms, except to
the extent that (x) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (y) the rights to indemnity and
contribution contained therein may be limited by applicable law or the public
policy underlying such laws.
5. Under the Delaware Act and the Declaration, the execution and
delivery by the Trust of the Underwriting Agreement, and the performance by the
Trust of its obligations thereunder, have been duly authorized by all necessary
business trust action on the part of the Trust; and the Underwriting Agreement
has been duly executed by the Trust.
6. The Common Securities have been duly authorized for issuance by the
Declaration and, when issued and delivered pursuant to the Common Securities
Subscription Agreement, will be validly issued and represent undivided
beneficial interests in the assets of the Trust; and under the Delaware Act and
the Declaration, the issuance of the Common Securities is not subject to
preemptive rights.
7. The Preferred Securities have been duly authorized for issuance by
the Declaration and, when issued, executed and authenticated in accordance with
the Declaration and delivered and paid for in accordance with the Underwriting
Agreement, will be validly issued, and (subject to the qualifications set forth
herein) represent fully paid and non-assessable undivided beneficial interests
in the assets of the Trust; the holders of the Preferred Securities, in their
capacity as such, will 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; and under the Delaware Act and
the Declaration, the issuance of the Preferred Securities is not subject to
preemptive rights. We note that the Preferred Security
A-1
<PAGE>
holders will be subject to the withholding provisions of Section 11.4 of the
Declaration and may be required to make payment or provide indemnity or security
as set forth in the Declaration.
8. The issuance and sale by the Trust of the Preferred Securities and
the Common Securities, the execution, delivery and performance by the Trust of
the Underwriting Agreement, the consummation of the transactions contemplated
therein, and compliance by the Trust with its obligations thereunder will not
violate any of the provisions of the Certificate of Trust or the Declaration or
Applicable Law. As used in this opinion, "Applicable Law" shall mean those
laws, rules and regulations of the State of Delaware that, in our experience,
are normally applicable to transactions of the type contemplated by the
Underwriting Agreement (other than state securities laws, as to which we express
no opinion) but without our having made any special investigation with respect
to any other laws, rules or regulations.
9. No authorization, approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by the Trust under
Applicable Law in connection with the issuance and sale of the Common Securities
and the Preferred Securities or the purchase by the Trust of the Subordinated
Debt Securities except such as have been obtained and such as may be required by
state securities laws, as to which such we express no opinion.
10. The Trust will be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes.
11. The statements in the Prospectus under the caption "Certain United
States Federal Income Tax Consequences", insofar as they constitute summaries of
legal matters, have been reviewed by us and are accurate in all material
respects.
A-2
<PAGE>
Exhibit B
(i) The Bank of New York ("BONY") is a national banking association
with trust powers, duly organized, validly existing and in good standing under
the laws of the United States, with all necessary power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of the
Declaration and the Preferred Securities Guarantee.
(ii) The execution, delivery and performance by BONY, in its capacity
as Property Trustee (the "Property Trustee"), of the Declaration and, in its
capacity as Preferred Guarantee Trustee, of the Preferred Securities Guarantee
Agreement, have been duly authorized by all necessary corporate action on the
part of the Property Trustee and the Preferred Guarantee Trustee, respectively.
The Declaration and the Preferred Securities Guarantee Agreement, when duly
executed and delivered by the Property Trustee and the Preferred Guarantee
Trustee, respectively, will constitute legal, valid and binding obligations of
the Property Trustee and the Preferred Guarantee Trustee, respectively,
enforceable against the Property Trustee and the Preferred Guarantee Trustee,
respectively, in accordance with their terms.
(iii) Based on an officer's certificate of BONY, there are no actions,
proceedings or investigations pending or threatened against or affecting BONY
before any court, arbitrator, administrative agency or other governmental
authority which, if adversely decided, would materially and adversely affect the
Property Trustee's ability to carry out the transactions contemplated in the
Declaration or the Preferred Guarantee Trustee's ability to carry out the
transactions contemplated in the Preferred Securities Guarantee Agreement.
(iv) The execution, delivery and performance of the Declaration and the
Preferred Securities Guarantee Agreement by the Property Trustee and the
Preferred Guarantee Trustee, respectively, do not conflict with, or constitute a
breach of, the articles of association or the certificate of incorporation of
BONY, as the case may be, or bylaws of BONY.
(v) 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,
or by the Preferred Guarantee Trustee of the Preferred Securities Guarantee
Agreement.
B-1
<PAGE>
Exhibit C
(i) The Bank of New York (Delaware) ("BONY-Delaware") is a Delaware
corporation duly organized, validly existing and in good standing under the laws
of Delaware, with full power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of the Declaration.
(ii) The execution, delivery and performance by BONY-Delaware, in its
capacity as Delaware Trustee (the "Delaware Trustee"), of the Declaration have
been duly authorized by all necessary corporate action on the part of the
Delaware Trustee. The Declaration, when duly executed and delivered by the
Delaware Trustee, will constitute the legal, valid and binding obligation of the
Delaware Trustee, enforceable against the Delaware Trustee, in accordance with
its terms.
(iv) Based on an officer's certificate of BONY-Delaware, there are no
actions, proceedings or investigations pending or threatened against or
affecting BONY-Delaware before any court, arbitrator, administrative agency or
other governmental authority which, if adversely decided, would materially and
adversely affect the Delaware Trustee's ability to carry out the transactions
contemplated in the Declaration.
(v) The execution, delivery and performance by the Delaware Trustee of
the Declaration does not conflict with, or constitute a breach of, the articles
of association or the certificate of incorporation of BONY-Delaware, as the case
may be, or bylaws of BONY-Delaware.
(vi) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of the Declaration.
C-1
<PAGE>
EXHIBIT 4.1
_________________________________________
AMENDED AND RESTATED DECLARATION
OF TRUST
OXY CAPITAL TRUST I
Dated as of January 20, 1999
_________________________________________
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
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<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........ 15
Section 3.8 Powers and Duties of the Property Trustee................... 15
Section 3.9 Certain Duties and Responsibilities of the Property Trustee. 17
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............................. 23
Section 4.3 Right to Proceed............................................ 23
</TABLE>
i
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<TABLE>
ARTICLE V
TRUSTEES
<S> <C>
Section 5.1 Number of Trustees...................................................... 24
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.................................................... 33
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...................................................... 37
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.............. 43
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............................................ 45
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 I
January 20, 1999
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of January 20, 1999 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 I (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 December 16, 1998 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of Delaware on
December 16, 1998, 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 each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order 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 January 20, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
2
<PAGE>
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of January 20, 1999 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 5.1.
"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 January 20, 1999 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 January
20, 1999 pursuant to Section 301 of the Indenture.
3
<PAGE>
"Investment Company" means an investment company as defined in the
Investment Company Act.
"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 January 20, 1999 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
4
<PAGE>
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).
"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 3.8(a), a specimen certificate for such series of
Subordinated Notes is attached hereto as Exhibit B.
5
<PAGE>
"Subordinated Notes Issuer" means Occidental Petroleum Corporation, a
Delaware corporation.
"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;
6
<PAGE>
(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
(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 1999, 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
7
<PAGE>
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 2.6 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
(S)316(a)(1)(B) of the Trust Indenture Act and such (S)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
8
<PAGE>
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,
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 (S)316(a)(1)(A) and (S)316(a)(1)(B) of the
Trust Indenture Act and such (S)316(a)(1)(A) and (S)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
(S)316(a)(1)(B) of the Trust Indenture Act and such (S)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
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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.
(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.
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The Trust is named "Oxy Capital Trust I", 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.
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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.
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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
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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.
Section 3.4 Authority.
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(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
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Securities shall be limited to a simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(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
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of January 20, 1999 between the Trust and the Sponsor (the "Common Securities
Subscription Agreement");
(d) to execute and enter into, and perform its obligations under, the
Subordinated Notes Subscription Agreement dated as of January 20, 1999 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;
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(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 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 respect to the Trust 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.
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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 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, to the fullest extent permitted by law,
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
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any, or interest on the 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
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(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 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.
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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 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;
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(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;
(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
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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 41 years from the Closing Date.
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);
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(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 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 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 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.
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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;
(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.
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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.
(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: Corporate Trust Administration
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: Corporate Trust Administration
(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
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(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, 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.
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(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.
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 5.1 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
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(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.
(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
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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
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
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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.
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;
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(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
(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
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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
(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
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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):
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.
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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 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
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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, 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(d)), 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
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(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
(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
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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.
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.
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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 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
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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, 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 and the Property
Trustee (subject to Section 5.3(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
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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.
(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.
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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 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
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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
(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
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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 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.
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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;
(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
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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.
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 I
c/o Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Attention: General Counsel
<PAGE>
(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.
(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.
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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.
46
<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
/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 (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------------------------
Name: Walter N. Gitlin
------------------------------------
Title: Authorized Signatory
-----------------------------------
The Bank of New York,
as Property Trustee
By: /s/ T. C. Knight
--------------------------------------
Name: Thomas C. Knight
------------------------------------
Title: Assistant Vice President
-----------------------------------
Occidental Petroleum Corporation,
as Sponsor
By: /s/ J. R. Havert
--------------------------------------
Name: J. R. Havert
------------------------------------
Title: Vice President & Treasurer
-----------------------------------
47
<PAGE>
EXHIBIT A
TERMS OF
8.16% TRUST ORIGINATED PREFERRED SECURITIES
8.16% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of January 20, 1999 (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. 21,000,000 Preferred Securities of the
--------------------
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of Five Hundred Twenty-Five Million Dollars ($525,000,000), and a
liquidation amount with respect to the assets of the Trust of $25 per Preferred
Security, are hereby designated for the purposes of identification only as
"8.16% Trust Originated 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. 649,485 Common Securities of the Trust with an
-----------------
aggregate liquidation amount with respect to the assets of the Trust of Sixteen
Million Two Hundred Thirty-Seven Thousand One Hundred Twenty-Five Dollars
($16,237,125), and a liquidation amount with respect to the assets of the Trust
of $25 per Common Security, are hereby designated for the purposes of
identification only as "8.16% Trust Originated 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 8.16% (the "Coupon Rate") of the stated liquidation amount
of $25 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 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
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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 January 20, 1999 and will be payable quarterly in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing on March 31,
1999, except as otherwise described below. The Subordinated Notes 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 January 13, 1999 (the "Prospectus
Supplement") to the Prospectus dated January 8, 1999 (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 the 15/th/ day of the last month of each
quarterly distribution period, even if that day is not a Business Day.
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 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
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<PAGE>
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
$25 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.
c. The Subordinated Notes are redeemable, in whole or in part, at
the option of the Subordinated Notes Issuer, on one or more occasions, at any
time on or after January 20, 2004, at a redemption price equal to 100% of the
principal amount per Subordinated Note, plus, in each case, accrued and unpaid
interest thereon at the date of the redemption for the Subordinated Notes.
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<PAGE>
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 Notes 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 to the effect 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 thereof or therein, or (b) any official or administrative
pronouncement or action, or judicial decision, interpreting or applying such
laws or regulations, where such change or amendment becomes effective, or such
pronouncement, action or decision is announced or occurs, 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 minimal
amount of other taxes, duties, assessments or other governmental charges, or
(iii) interest payable by the Subordinated Notes 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 Subordinated Notes Issuer for
United States federal income tax purposes.
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.
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<PAGE>
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 Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by the Depository (or
any successor Clearing Agency) or any other nominee, the distribution of the
proceeds of such redemption will be made to each Clearing Agency
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<PAGE>
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.
(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
A-6
<PAGE>
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 513 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 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 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
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<PAGE>
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 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
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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 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 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 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, to the fullest
extent permitted by law, 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.
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
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<PAGE>
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 Subordinated Notes (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 Subordinated Notes
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
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.
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
A-10
<PAGE>
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 I
8.16% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security)
OXY CAPITAL TRUST I, 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 8.16% Trust
Originated Preferred Securities (liquidation amount $25 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 January 20, 1999, 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 20th day
of January, 1999.
_________________________________________
J. R. Havert, as Regular Trustee
_________________________________________
Anthony R. Leach, as Regular Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued
under the Amended and Restated Declaration
of Trust described herein.
Dated: January 20, 1999
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)
________________________________________________________________________________
A-13
<PAGE>
(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:_____________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
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 I
8.16% Trust Originated Common Securities.
(liquidation amount $25 per Common Security)
OXY CAPITAL TRUST I, 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 8.16% Trust Originated Common Securities (liquidation amount $25
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 January 20,
1999, 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 20th day
of January, 1999.
_________________________________________
J. R. Havert, as Regular Trustee
_________________________________________
Anthony R. Leach, as Regular Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
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 Common 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 Common Security
Certificate)
Signature Guarantor:_____________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM, PURSUANT TO
S.E.C. RULE 17Ad-15.
A-16
<PAGE>
EXHIBIT B
SPECIMEN OF SUBORDINATED NOTE
B-1
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
B-1
<PAGE>
================================================================================
OCCIDENTAL PETROLEUM CORPORATION
To
THE BANK OF NEW YORK, Trustee
------------
INDENTURE
Dated as of January 20, 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>
<CAPTION>
TABLE OF CONTENTS
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
</TABLE>
i
<PAGE>
<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
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>
ii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE THREE
<S> <C>
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........... 22
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
SECTION 515. Waiver of Usury, Stay or Extension Laws....................... 40
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE SIX
<S> <C>
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........ 48
SECTION 703. Reports by Trustee............................................ 48
SECTION 704. Reports by Company............................................ 48
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
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
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
ARTICLE TEN
<S> <C>
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
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
</TABLE>
v
<PAGE>
<TABLE>
<S> <C>
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
</TABLE>
TESTIMONIUM ...................................................................
SIGNATURE AND SEALS ...........................................................
ACKNOWLEDGMENTS ...............................................................
vi
<PAGE>
INDENTURE, dated as of January 20, 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," with respect
<PAGE>
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.
"Cedel S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
2
<PAGE>
"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.
"Event of Default" has the meaning specified in Section 501.
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"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
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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 right
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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.
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"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.
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"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 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.
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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.
(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.
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(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.
SECTION 105. Notices, Etc., to Trustee and Company.
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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 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
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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.
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.
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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.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
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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.
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)
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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;
(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
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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 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
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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
(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,
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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.
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
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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:
(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
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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 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
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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).
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
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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 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.
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(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. 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
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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 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
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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.
(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.
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(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 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.
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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 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
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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 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
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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 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.
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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
(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
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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
(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
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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):
(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
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(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.
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.
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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.
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,
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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 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;
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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 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.
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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.
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.
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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.
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
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(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, 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).
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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 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:
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(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 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:
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(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 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.
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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
(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.
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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.
(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
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(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 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
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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.
(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.
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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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 703(b)(2). The
Trustee may (i) destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, (ii) destroy any information received by it
as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee,
not earlier than August 15 or February 15, a list containing the names and
addresses of the Holders of Securities obtained from such information since the
delivery of the next previous list, if any, (iii) destroy any list delivered to
itself as Trustee which was compiled from information received by it as Paying
Agent (if so acting) hereunder upon the receipt of a new list so delivered, and
(iv) destroy not earlier than two years after filing, any information filed with
it pursuant to Section 703(b)(2).
(b) Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Security Registrar, the Paying Agent
and any other person shall have the protection of Trust Indenture Act Section
312(c).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the year
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 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
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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;
(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
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(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 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
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(4) to establish the form or terms of Securities of any series and
any related coupons, as permitted by Sections 201 and 301, respectively; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; 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 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
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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 mention shall be deemed to include mention of the payment
of additional amounts provided for in this Section to the
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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
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each
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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 series
shall
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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
(e) any Indebtedness of the Company to any Subsidiary of the Company.
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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 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,
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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.
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
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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 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
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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.
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
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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 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
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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.
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
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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.
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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 /s/ J.R. Havert
----------------------------------------
J.R. Havert, Vice President & Treasurer
[Seal]
Attest: /s/ S.P. Parise
-------------------
S.P. Parise
Assistant Secretary
THE BANK OF NEW YORK, Trustee
By /s/ T. C. Knight
----------------------------------------
Thomas C. Knight
Assistant Vice President
[Seal]
Attest: /s/ Michael Culhane
--------------------
Michael Culhane
Vice President
<PAGE>
State of California )
) ss:
County of Los Angeles )
On the 18th day of January, 1999, before me personally came J. R. Havert,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President & Treasurer 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.
/s/ Christine Fitzgerald
------------------------
State of New York )
) ss.
County of New York )
On the 15th day of January, 1999, before me personally came T. C. Knight,
to me known, who, being by me duly sworn, did depose and say that he is an
Assistant Vice President 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.
/s/ William J. Cassels
------------------------------------
William J. Cassels
Notary Public, State of New York
No. 01CA5027729
Qualified in Bronx County
Certificate Filed in New York County
Commission Expires May 16, 2000
<PAGE>
______________________________________
OCCIDENTAL PETROLEUM CORPORATION
AND
THE BANK OF NEW YORK,
TRUSTEE
PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of January 20, 1999
______________________________________
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Table of Contents
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Page
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ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation.................................................. 1
ARTICLE II.
TRUST INDENTURE ACT
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
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
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
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
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
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions...................................................... 13
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Section 6.02. Ranking......................................................................... 13
ARTICLE VII.
TERMINATION
Section 7.01. Termination..................................................................... 14
ARTICLE VIII.
INDEMNIFICATION
Section 8.01. Exculpation..................................................................... 14
Section 8.02. Indemnification................................................................. 14
ARTICLE IX.
MISCELLANEOUS
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
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<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"),
dated as of January 20, 1999, 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 I, a Delaware statutory business trust (the
"Issuer");
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of January 20, 1999, 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 $525,000,000 aggregate stated liquidation amount of
Preferred Securities designated the 8.16% Trust Originated 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;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
<PAGE>
(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.
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"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 January 20, 1999 among the
Guarantor and The Bank of New York, as trustee, as supplemented by the Officers'
Certificate (as defined in the Indenture) dated January 20, 1999.
"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
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"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 8.16% Subordinated Notes due 2039.
"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 1999, 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.
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;
8
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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,
provided that the Guarantor has consented in writing to the appointment of
each agent or attorney, by or through agents or attorneys, provided further
that the Preferred Guarantee Trustee has obtained such consent, 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
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<PAGE>
institutional trustee under the Trust Indenture Act, authorized under such
laws to exercise 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.
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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 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.
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(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, 21-W
New York, New York 10286
(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
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<PAGE>
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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<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ J. R. Havert
--------------------------------
Name: J. R. Havert
Title: Vice President and Treasurer
THE BANK OF NEW YORK
as Preferred Guarantee Trustee
By: /s/ T. C. Knight
-------------------------------
Name: Thomas C. Knight
Title: Assistant Vice President
17
<PAGE>
EXHIBIT 4.4
OCCIDENTAL PETROLEUM CORPORATION
--------------------------------
Officers' Certificate
---------------------
Oxy Capital Trust I, a Delaware statutory business trust (the "Trust"), has
offered to the public $525,000,000 aggregate liquidation amount of its 8.16%
Trust Originated Preferred Securities (the "Preferred Securities"), representing
undivided beneficial interests in the assets of the Trust and proposes to invest
the proceeds from such offering, together with the proceeds of the issuance and
sale by the Trust to the Company of $16,237,125 aggregate liquidation amount of
its Common Securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities"), in $541,237,125 aggregate principal amount
of the Notes referred to below issued under the Indenture (as defined below).
The Trust Securities will be issued pursuant to the terms of an Amended and
Restated Declaration of Trust of the Trust, dated as of January 20, 1999 (the
"Declaration"), among the Regular Trustees (as defined therein) (the "Regular
Trustees"), the Delaware Trustee (as defined therein) (the "Delaware Trustee"),
the Property Trustee (as defined therein) (the "Property Trustee"), Occidental
Petroleum Corporation, a Delaware corporation (the "Company") and the holders
from time to time of the Trust Securities.
Capitalized terms used herein and not otherwise defined herein have the meanings
specified in the Indenture.
Pursuant to Section 201 and Section 301 of the Indenture, dated as of January
20, 1999 (the "Indenture"), between the Company and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee"), the undersigned Vice
President and Treasurer and Assistant Secretary of the Company hereby certify on
behalf of the Company as follows:
1. Authorization. The establishment of a series of Securities of the
Company has been approved and authorized in accordance with the provisions of
the Indenture pursuant to resolutions adopted by the Board of Directors of the
Company on November 12, 1998.
2. Compliance with Covenants and Conditions Precedent. All covenants and
conditions precedent provided for in the Indenture relating to the establishment
of the series of Securities have been complied with.
3. Terms. The terms of the series of Securities established pursuant to
this Officers' Certificate shall be as follows:
(i) Title. The title of the series of Securities is the "8.16%
Subordinated Deferrable Interest Notes due 2039" (the "Notes").
(ii) Aggregate Principal Amount. The aggregate principal amount of the
Notes which may be authenticated and delivered pursuant to the Indenture
(except for Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Notes pursuant to Sections
304, 305, 306, 906 and 1107 of the Indenture) is $541,237,125.
(iii) Registered Securities in Book-Entry Form. Except as provided in
paragraph (xxiii) below, the Notes will be issued in fully registered
certificated form
<PAGE>
without interest coupons. Pursuant to paragraph (xiii) below, the Notes may be
issued in book-entry form ("Book-Entry Notes") and represented by one or more
global notes (the "Global Notes") in fully registered form, without coupons. The
initial Depositary with respect to the Global Notes will be The Depository Trust
Company, as Depositary for the accounts of its participants. So long as the
Depositary for a Global Note, or its nominee, is the registered owner of the
Global Note, the Depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the Notes in book-entry form represented
by such Global Note for all purposes under the Indenture. Book-Entry Notes will
not be exchangeable for Notes in definitive form ("Definitive Notes") except
that, if the Depositary with respect to any Global Note or Notes is at any time
unwilling or unable to continue as Depositary and a successor Depositary is not
appointed by the Company within 90 days, the Company will issue Definitive Notes
in exchange for the Book-Entry Notes represented by any such Global Note or
Notes. In addition, the Company may at any time and in its sole discretion
determine not to have a Global Note or Notes, and, in such event, will issue
Definitive Notes in exchange for the Book-Entry Notes represented by such Global
Note or Notes in accordance with the provisions of Section 305 of the Indenture.
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<PAGE>
(iv) Persons to Whom Interest Payable. Interest will be payable to the
Person in whose name a Note is registered at the close of business (whether or
not a Business Day) on the Regular Record Date with respect to such Note, except
for interest payable on a Note surrendered for redemption as set forth in
paragraph (ix) below.
(v) Stated Maturity. The principal amount of the Notes will be payable
on January 20, 2039, subject to earlier redemption as set forth in paragraph
(ix) below.
(vi) Rate of Interest; Interest Payment Dates; Regular Record Dates;
Accrual of Interest. The Notes will bear interest at the rate of 8.16% per annum
(the "Coupon Rate"). Interest on the Notes will be payable quarterly in arrears
on March 31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing on March 31, 1999. In respect of any Notes
of which the Property Trustee is the registered holder or any Notes which are in
book-entry only form, the Regular Record Date shall be one Business Day before
the relevant Interest Payment Date. Notwithstanding the foregoing sentence, if
the Preferred Securities are no longer in book-entry only form or a Dissolution
Event has occurred and subsequent thereto the Notes are not represented by a
Global Note pursuant to the provisions of Section 305(7) of the Indenture, the
Regular Record Date will be the 15th day of the last month of each quarterly
distribution period (whether or not a Business Day) next preceding such Interest
Payment Date. The Notes will bear interest from January 20, 1999 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for until the principal thereof is paid or made available for payment.
Interest payments shall be the amount of interest accrued from and including the
most recent Interest Payment Date in respect of which interest has been paid or
duly provided for (or from and including January 20, 1999 if no interest has
been paid or duly provided for with respect to such Note), to but excluding the
next succeeding Interest Payment Date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed per 30-day month. In the event that
any date on which interest is payable on the Notes is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which 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
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<PAGE>
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.
(vii) Additional Interest. If at any time while the Property Trustee is
the holder of any Notes, the Trust or the Property Trustee is required to pay
any taxes, duties assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(viii) Place of Payment; Registration of Transfer and Exchange; Notices
to Company. Payment of the principal of and interest on the Notes will be made
at the Corporate Trust Office of the Trustee in the Borough of Manhattan, The
City of New York, or at any other office or agency designated by the Company for
such purpose; provided, however, that, at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Notwithstanding
the foregoing, so long as the registered holder of any Notes is the Property
Trustee, the payment of the principal of and interest (including Additional
Interest, if any) on such Notes held by the Property Trustee will be made at
such place and to such account as may be designated by the Property Trustee. The
Notes may be presented for exchange and registration of transfer at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York, or at the office of any transfer agent hereafter designated by the
Company for such purpose. Notices and demands to or upon the Company in respect
of the Notes and the Indenture may be served at Occidental Petroleum
Corporation, 10889 Wilshire Boulevard, Los Angeles, California 90024, Attention:
Vice President and Treasurer.
(ix) Redemption. The Notes are not entitled to any mandatory
redemption or sinking fund payments.
(a) Optional Redemption:
The Notes will be redeemable, in whole or from time to time in part, at
the option of the Company at any time on or after January 20, 2004 at a
redemption price equal to 100% of the principal amount per Note to be redeemed
plus, in each case, accrued and unpaid interest thereon to the Redemption Date
(the "Redemption Price").
(b) Special Event Redemption:
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
Company shall
4
<PAGE>
have the right to redeem the Notes in whole or in part, for cash within 90 days
following the occurrence of such Special Event, at the Redemption Price.
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
of 1940, as amended, which Change in 1940 Act Law becomes effective on or
after January 13, 1999.
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
January 13, 1999, 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
thereof or therein, or (b) any official or administrative pronouncement or
action, or judicial decision, interpreting or applying such laws or
regulations, where such change or amendment becomes effective, or
such pronouncement, action or decision is announced or occurs, in each case
on or after January 13, 1999, 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 Notes, (ii) the Trust is, or will be within 90
days of the date of such opinion, subject to more than a minimal amount
of other taxes, duties, assessments or other governmental charges, or (iii)
interest payable by the Company to the Trust on the Notes is not, or within
90 days of the date of such opinion will not be, deductible, in whole or in
part, by the Company for United States federal income tax purposes.
(c) Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each Holder of the Notes to be
redeemed. Unless the Company defaults in payment of the Redemption Price, on and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption. If less than all of the Notes are to be
redeemed, the Notes (or portions thereof) to be redeemed shall be selected by
the Trustee by such method as the Trustee shall deem fair and appropriate,
provided that if, at the time of redemption, the Notes are registered as a
Global Note, the Depositary shall determine the principal amount of such Notes
held by each holder to be redeemed in accordance with its procedures.
(d) If a partial redemption of the Notes would result in the delisting of
the Preferred Securities from any national securities exchange or other
organization on which
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<PAGE>
the Preferred Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Notes in whole.
(x) Extension of Interest Payment Period.
(a) Right to Extend. The Company shall have the right, at any time, and
from time to time, during the term of the Notes to extend the interest payment
period of such Notes for up to 20 consecutive quarterly periods (an "Extended
Interest Payment Period"), provided no Event of Default has occurred and is
continuing with respect to the Notes. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this paragraph, will bear interest thereon
at the Coupon Rate for each quarterly period of the Extended Interest Payment
Period. At the end of the Extended Interest Payment Period, the Company shall
pay all interest accrued and unpaid on the Notes including any Additional
Interest ("Deferred Interest") which shall be payable to the holders of the
Notes in whose names the Notes are registered in the Security Register on the
first Regular Record Date after the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarterly periods.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof.
(b) Notice of Extension.
i. If the Property Trustee is the only registered holder of the Notes
at the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to both the Regular Trustees and the
Property Trustee of its selection of such Extended Interest Payment Period
one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities are payable or (ii) the date
the Trust is required to give notice of the record date or the date such
Distributions are payable to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities, but in any event at least one Business Day before such record
date.
ii. If the Property Trustee is not the only holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the
Company shall give the holders of the Notes written notice of its selection
of such Extended Interest Payment Period ten Business Days before the
earlier of (i) the next succeeding Interest Payment Date or (ii) the date
the Company is required to give notice of the record or payment date of
such interest payment to the New York
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Stock Exchange or other applicable self-regulatory organization or to
holders of the Notes.
iii. The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this subparagraph (ii) shall be counted as one of
the 20 quarterly periods permitted in the maximum Extended Interest Payment
Period permitted under this paragraph (x).
(xi) Limitation of Transactions. If Notes are issued to the Trust or a
trustee of the Trust and (i) there shall have occurred any event that would
constitute an Event of Default or (ii) the Company shall be in default with
respect of its payment or other obligations under the Preferred Securities
Guarantee Agreement, dated as of January 20, 1999, between the Company and The
Bank of New York or (iii) the Company shall have given notice of its election to
defer payments of interest on the Notes by extending the interest payment period
as provided in paragraph (xi) above, then (a) the Company 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 Company 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 Company which rank pari passu with or
junior to the Notes; provided, that, clause (a) above does not apply to (i) any
stock dividends paid by the Company where the dividend stock is the same as that
on which the dividend is being paid, (ii) purchases or acquisitions by the
Company of shares of its common stock in connection with the satisfaction by the
Company or any of its subsidiaries of their respective obligations under any
benefit plans for directors, officers, agents or employees or the Company's
dividend reinvestment or director, officer, agent or employee stock purchase
plans, (iii) a reclassification of the Company'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 Company'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 Company's capital stock or
(vi) any declaration by the Company 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 of any such rights pursuant thereto.
(xii) Denominations. The Notes are issuable in denominations of $25 and
integral multiples thereof.
(xiii) Agreement to Subordinate. The Company covenants and agrees, and each
holder of Notes issued hereunder by such holder's acceptance thereof likewise
covenants and agrees, that all Notes shall be issued subject to the provisions
of Article
7
<PAGE>
FOURTEEN of the Indenture; and each holder of a Note, whether upon original
issue or upon transfer or assignment thereof, accepts and agrees to be bound by
such provisions.
(xiv) Security Register; Paying Agent. The Security Register for the
Notes will be initially maintained at the Corporate Trust Office of the Trustee.
The Company hereby appoints the Trustee as the initial Paying Agent.
(xv) Covenants as to the Trust. For so long as the Trust Securities
remain outstanding, the Company will (i) maintain 100% direct or indirect
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities and (ii) use its reasonable efforts
to cause the Trust (A) to remain a statutory business trust, except in
connection with a distribution of Notes as provided in the Declaration the
redemption of all of the Trust Securities or certain mergers, consolidations or
amalgamations permitted by the Declaration, and (B) to continue to be treated as
a grantor trust for United States federal income tax purposes.
(xvi) Events of Default. For the Notes only, a valid extension of the
interest payment period in accordance with paragraph (x) hereof shall not
constitute a Default or Event of Default under the Indenture.
For the Notes only, the voluntary or involuntary dissolution, winding-up
or termination of the Trust, except in connection with (a) the distribution of
the Notes to the holders of the Trust Securities in liquidation of the Trust,
(b) the redemption of all the Trust Securities, or (c) mergers, consolidations
or amalgamations, each as permitted by the Declaration, shall constitute an
Event of Default.
(xvii) Waiver of Past Defaults. For the Notes only, any waiver pursuant to
Section 513 of the Indenture or any modification of such a waiver shall not be
effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such waiver; provided, however, that if the
consent of the holder of each Outstanding Security is required, such waiver
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver.
(xviii) Listing on Exchanges. If the Notes are to be issued as a Global
Note in connection with the distribution of the Notes to the holders of the
Preferred Securities upon a Dissolution Event, the Company will use its best
efforts to list such Notes on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
(xix) Direct Action. The Company and the Trustee acknowledge that
pursuant to the Declaration, the holders of Preferred Securities are entitled,
in the circumstances and subject to the limitations set forth therein, to
commence a Direct Action (as defined therein) with respect to any Event of
Default under the Indenture.
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<PAGE>
(xx) Supplemental Indentures. For the Notes only, any supplemental
indenture referred to in Section 902 of the Indenture shall not be effective
until the holders of a majority in liquidation amount of Trust Securities shall
have consented to such supplemental indenture; provided, however, that if the
consent of the holder of each Outstanding Security is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities shall have consented to such supplemental indenture.
(xxi) Form. The Notes will be in substantially the form set forth in
Exhibit A attached hereto and may have such other terms as are provided in such
form.
(xxii) Payment of Expenses. In connection with the offering, sale and
issuance of the Notes to the Property Trustee in connection with the sale of the
Trust Securities by the Trust, and the operation of the Trust, the Company
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement dated January 13, 1999 among the Company,
the Trust and the underwriters named therein and compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607 of the
Indenture;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the trustees of
the Trust, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
(xxiii) Dissolution Event. "Dissolution Event" means that as a result of
an election by the Company, the Trust is to be dissolved in accordance with the
Declaration and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities pro rata in accordance with the Declaration.
In connection with a Dissolution Event:
(a) Definitive Notes may be presented to the Trustee by the Property
Trustee in exchange for a Global Note in an aggregate principal amount equal to
all Definitive Notes Outstanding to be registered in the name of the Depositary,
or its nominee, and delivered by the Trustee to the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute a Global Note in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this Officers'
Certificate. Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(b) if any Preferred Securities are held in non book-entry certificated
form, Definitive Notes may be presented to the Trustee by the Property Trustee
and any Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Depositary or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Notes presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which time
such Preferred Security Certificate will be cancelled and a Note registered in
the name of the holder of the Preferred Security Certificate or the transferee
of the holder of such Preferred Security Certificate as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with the
Indenture and this Officers' Certificate. On issue of such Notes, Notes with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
Each of the undersigned, for himself, states that he has read and is familiar
with the provisions of Article Two of the Indenture relating to the
establishment of the form of Security representing a series of Securities
thereunder and Article Three of the Indenture relating to the establishment of a
series of Securities thereunder and, in each case, the definitions therein
relating thereto; that he is generally familiar with the other provisions of the
Indenture and with the affairs of the Company and its acts and proceedings and
that the statements and opinions made by him in this Certificate are based upon
such familiarity; and that, in his opinion, he has made such
9
<PAGE>
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not the covenants and conditions referred to
above have been complied with.
Insofar as this Certificate relates to legal matters it is based, as provided
for in Section 103 of the Indenture, upon the Opinion of Counsel delivered to
the Trustee contemporaneously herewith pursuant to Section 303 of the Indenture
and relating to the Notes.
10
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto signed this certificate on
behalf of the Company as of this 20th day of January, 1999.
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ J. R. Havert
-------------------------------------
Name: J. R. Havert
Title: Vice President and Treasurer
By: /s/ John W. Alden
-------------------------------------
Name: John W. Alden
Title: Assistant Secretary
11
<PAGE>
REGISTERED REGISTERED
OCCIDENTAL PETROLEUM CORPORATION
8.16% SUBORDINATED DEFERRABLE INTEREST NOTE DUE 2039
NO. R PRINCIPAL AMOUNT:
U.S.$
CUSIP: 674599 BR 5
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT--Unless and until it is
exchanged in whole or in part for Notes in definitive form, this Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of DTC and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: January 20, 1999 REDEMPTION DATE/PRICE: See
MATURITY DATE: January 20, 2039 Further Provisions Set Forth Herein
ISSUE PRICE: 100%
INTEREST RATE: 8.16%
INTEREST PAYMENT DATES: March 31, June 30, September 30 and December 31, commencing March 31, 1999
REGULAR RECORD DATES: See Further Provisions Set Forth Herein
</TABLE>
Dated: January 20, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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
1
<PAGE>
OCCIDENTAL PETROLEUM CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company"), for value received, hereby promises to pay to The Bank of New York,
as Property Trustee of Oxy Capital Trust I (the "Trust"), or registered assigns,
the Principal Amount specified above on the Maturity Date specified above
(unless and to the extent earlier redeemed or repaid prior to such Maturity
Date) and to pay interest thereon from January 20, 1999 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31, in each year, commencing with the first
Interest Payment Date next succeeding the Original Issue Date, at the rate per
annum specified above, until the principal hereof is paid or made available for
payment. Interest payments for this Note will include interest accrued to but
excluding each Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date, which shall be the close of business on the Business
Day next preceding such Interest Payment Date if this Note is held by the
Property Trustee or if this Note is in book-entry only form. Notwithstanding
the foregoing sentence, if the Preferred Securities of the Trust are no longer
in book-entry only form or a Dissolution Event has occurred and subsequent
thereto this Note is not a Global Note pursuant to the provisions of Section
305(7) of the Indenture, such regular record date shall be the close of business
on the 15/th/ day next preceding such Interest Payment Date. If any Interest
Payment Date or Maturity with respect to this Note falls on a day that is not a
Business Day, the payment due on such Interest Payment Date or at Maturity will
be made on the following day that is a Business Day as if it were made on the
date such payment was due and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or Maturity, as the
case may be. Except as otherwise provided in the Indenture, any interest not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") will forthwith cease to be payable to the Holder on the
Regular Record Date with respect to such Interest Payment Date by virtue of
having been such Holder and may either (1) be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee (as defined below), notice of which shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or (2)
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Payment of the principal of and interest, if any, on this Note
will be made at the Corporate Trust Office of the Trustee or at the office or
agency of the Trustee maintained for that purpose in the Borough of Manhattan,
The City of New York, and at any other office or agency maintained by the
Company for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; and provided,
further, that the Holder of this Note shall be entitled to receive payments of
principal of and interest, if any, on this Note by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than l5 days prior to the applicable payment
date. Notwithstanding the foregoing, so long as the Holder of this Note is the
Property Trustee, the payment of the principal of and interest on this Note will
be made at such place and to such account as may be designated by the Property
Trustee.
The indebtedness evidenced by this Note is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
2
<PAGE>
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of securities (herein called
the "Securities") of the Company (which term includes any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant to
such Indenture. This Note is one of a series designated by the Company as its
8.16% Subordinated Deferrable Interest Notes due 2039 (the "Notes"), limited in
aggregate principal amount to $541,237,125. The Indenture does not limit the
aggregate principal amount of other Securities which may be issued thereunder.
The Company issued this Note pursuant to an Indenture, dated as of January
20, 1999 (herein called the "Indenture" which term, for the purpose of this
Note, shall include the Officers' Certificate dated January 20, 1999, delivered
pursuant to Sections 201 and 301 of the Indenture), between the Company and The
Bank of New York, as trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $25 and any amount in excess thereof which is an integral
multiple of $25. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may be
presented for registration of transfer.
The Notes are redeemable, in whole or in part, without penalty, at the
option of the Company (i) before January 20, 2004, within 90 days of the
occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount of this Note plus any accrued and unpaid interest thereon to
the date of such redemption and (ii) on or after January 20, 2004, at a
Redemption Price equal to 100% of the principal amount per Note plus any accrued
and unpaid interest thereon to the date of such redemption.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of the Notes to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and after the
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption. If less than all of the Notes are to be redeemed, the
Notes (or
3
<PAGE>
portions thereof) to be redeemed will be selected by the Trustee by such method
as the Trustee shall deem fair and appropriate; provided that if, at the time of
redemption, the Notes are registered as a Global Note, the Depositary shall
determine the principal amount of such Notes held by each Holder to be redeemed
in accordance with its procedures.
Notwithstanding the foregoing, installments of interest whose Stated
Maturity is prior to the Redemption Date of any Note will be payable to the
Holder of such Note, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Date referred to above, all as
provided in the Indenture.
All notices of redemption shall state the Redemption Date, the Redemption
Price, if fewer than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed, that on the Redemption Date the
Redemption Price will become due and payable upon each Note, or portion thereof,
to be redeemed, that interest on each Note, or portion thereof, called for
redemption will cease to accrue on the Redemption Date and the place or places
where Notes may be surrendered for redemption.
In the event of redemption of this Note in part only, a new Note or Notes
of like tenor for the unredeemed portion hereof will be issued in authorized
denominations in the name of the Holder hereof upon the cancellation hereof.
For all purposes of this Note and the Indenture, unless the context
otherwise requires, all provisions relating to the redemption by the Company of
this Note shall relate, in the case that this Note is redeemed or to be redeemed
by the Company only in part, to that portion of the principal amount of this
Note that has been or is to be redeemed.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or,
subject to the provisions for satisfaction and discharge in Article Four of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
times, place and rate, and in the coin or currency, herein prescribed.
4
<PAGE>
The Company shall have the right at any time, and from time to time, during
the term of the Notes to extend the interest payment period of such Notes for up
to 20 consecutive quarterly periods (an "Extended Interest Payment Period")
provided no Event of Default has occurred and is continuing with respect to the
Notes, at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Notes to the extent that payment of such interest is enforceable under
applicable law). Before the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided, however, that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarterly
periods. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may select a new Extended Interest Payment Period.
The Indenture permits the Company, by irrevocably depositing, in amounts
and maturities sufficient to pay and discharge at the Stated Maturity or
Redemption Date, as the case may be, the entire indebtedness on all Outstanding
Notes, cash or U.S. Government Obligations with the Trustee in trust solely for
the benefit of the Holders of all Outstanding Notes, to defease the Indenture
with respect to such Notes, and upon such deposit the Company shall be deemed to
have paid and discharged its entire indebtedness on such Notes. Thereafter,
Holders would be able to look only to such trust fund for payment of principal
and interest at the Stated Maturity or Redemption Date, as the case may be.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of Notes is registrable in the Security Register, upon
surrender of a Note for registration of transfer at the Corporate Trust Office
of the Trustee or at the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, or at such other offices or agencies as the
Company may designate, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge shall be made by the Company, the Trustee or the Security
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (other than exchanges pursuant to
Sections 304, 906 or 1107 of the Indenture, not involving any transfer).
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance with the laws of
the State of New York including, without limitation, Section 5-1401 of the New
York General Obligations Law.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
5
<PAGE>
IN WITNESS WHEREOF, Occidental Petroleum Corporation has caused this
Instrument to be signed by the signature or facsimile signature of its Chairman
of the Board, its President, a Vice President, its Treasurer or an Assistant
Treasurer and attested by its Secretary or an Assistant Secretary by his or her
signature or a facsimile thereof, and its corporate seal or a facsimile of its
corporate seal to be affixed hereunto or imprinted hereon.
(SEAL) OCCIDENTAL PETROLEUM CORPORATION
By ___________________________________
Name: J. R. Havert
Title: Vice President and Treasurer
Attest:
_______________________________________
Name: John W. Alden
Title: Assistant Secretary
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT _____ Custodian _____
(Cust.) (Minor)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivor- Under Uniform Gifts to
ship and not as tenants in common Minor Act
______________________
(State)
Additional abbreviations may also be used though not in the above list.
_______________________
FOR VALUE RECEIVED, the undersigned hereby sells(s), assign(s) and transfer(s)
unto
Please Insert Social Security or Employer
Identification number of assignee
- --------------------------------------
---- ----
- --------------------------------------
- --------------------------------------------------------------------------------
- -----
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
- -----
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing____________________________________________________
__________________ attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
Dated:______________________ _______________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
EXHIBIT 8.1
January 20, 1999
Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Oxy Capital Trust I
c/o Occidental Petroleum Corporation
10889 Wilshire Boulevard
Los Angeles, California 90024
Re: 8.16% Trust Originated Preferred Securities
of Oxy Capital Trust I
-------------------------------------------
Ladies and Gentlemen:
We have acted as special tax counsel for Occidental Petroleum
Corporation, a Delaware corporation (the "Company"), and Oxy Capital Trust I, a
statutory business trust organized under the Business Trust Act of the State of
Delaware (12 Del. Code Ann., tit. 12, (S)(S) 3801, et seq.), in connection with
the sale pursuant to an Underwriting Agreement dated January 13, 1999 among the
Company, the Trust, and the underwriters (the "Underwriters") named therein (the
"Underwriting Agreement") of 21,000,000 8.16% Trust Preferred Securities
(liquidation amount $25 per preferred security) of the Trust (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust.
The Preferred Securities are guaranteed by the Company with respect
to distributions and payments upon liquidation, redemption, and otherwise
pursuant to the Preferred Securities Guarantee Agreement, dated as of January
20, 1999 (the "Guarantee Agreement"), between the Company and The Bank of New
York, as trustee, for the benefit of the holders of the Preferred Securities.
<PAGE>
Occidental Petroleum Corporation
Oxy Capital Trust I
January 20, 1999
Page 2
In connection with the issuance of the Preferred Securities, the Trust
is also issuing 649,485 8.16% Common Securities (liquidation amount $25 per
common security) (the "Common Securities"), representing undivided beneficial
interests in the assets of the Trust.
The proceeds from the sale of the Preferred Securities and the Common
Securities are to be used by the Trust to purchase an aggregate principal amount
of $541,237,125 of 8.16% Subordinated Deferrable Interest Notes due 2039 (the
"Subordinated Notes"), to be issued by the Company. The Preferred Securities and
the Common Securities are to be issued pursuant to the Amended and Restated
Declaration of Trust, dated as of January 20, 1999 (the "Declaration"), among
the Company, as sponsor, The Bank of New York (Delaware), as Delaware trustee
(the "Delaware Trustee"), The Bank of New York, as property trustee (the
"Property Trustee"), and A.R. Leach, J.R. Havert, and John R. Zaylor as regular
trustees (the "Regular Trustees"). The Subordinated Notes are to be issued
pursuant to an indenture, dated as of January 20, 1999 (the "Indenture"),
between the Company and The Bank of New York, as debt trustee (the "Debt
Trustee").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Underwriting Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Prospectus
Supplement dated January 13, 1999 (including a Prospectus dated January 8,
1999); (ii) the Certificate of Trust filed with the Secretary of State of the
State of Delaware as of January 20, 1999, by the Regular Trustees, the Property
Trustee, and the Delaware Trustee; (iii) an executed copy of the Declaration
including the designation of the terms of the Preferred Securities; (iv) the
form of the Preferred Securities and a specimen certificate thereof; (v) an
executed copy of the Guarantee Agreement; (vi) an executed copy of the
Indenture; (vii) the form of Subordinated Notes and a specimen certificate
thereof; (viii) the form of Common Securities and a specimen certificate
thereof; (ix) an executed copy of the Underwriting Agreement; and (x)
representations from an officer of the Company dated January 20,
2
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Occidental Petroleum Corporation
Oxy Capital Trust I
January 20, 1999
Page 3
1999. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the Company and the Trust and
such agreements, certificates of public officials, certificates of officers,
trustees or other representatives of the Company, the Trust and others, as
applicable, and 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, conformed or photostatic copies, and the
authenticity of the originals of such latter documents. In making our
examination of documents executed, or to be executed by parties other than the
Company or the Trust, we have assumed that such parties had, or will have 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 that
such documents constitute, or will constitute, valid and binding obligations of
such parties. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of officers, trustees and other
representatives of the Company, the Trust and others.
In rendering our opinion, we have participated in the preparation of
the Prospectus Supplement. Our opinion is conditioned on, among other things,
the initial and continuing accuracy of the facts, information, covenants, and
representations set forth in the documents referred to above and the statements
and representations made by the Company and the Trust.
In rendering our opinion, we have considered the provisions of the
Internal Revenue Code of 1986, as amended, Treasury regulations (proposed,
temporary and final) promulgated thereunder, judicial decisions and Internal
Revenue Service rulings all as of the date hereof, and all of which are subject
to change, which changes may be retroactively applied. A change in the
authorities
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Occidental Petroleum Corporation
Oxy Capital Trust I
January 20, 1999
Page 4
upon which our opinion is based could affect our conclusions. There can be no
assurance, moreover, that any opinion expressed herein will be accepted by the
Internal Revenue Service or, if challenged, by a court.
Based solely upon the foregoing, we are of the opinion that under
current United States federal income tax law, although the discussion set forth
in the Prospectus Supplement under the heading "CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES" does not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership, and disposition of
the Preferred Securities, in our opinion such discussion constitutes, in all
material respects, a fair and accurate summary of the United States federal
income tax consequences, to holders who purchase the Preferred Securities at
their original issuance, of the purchase, ownership, and disposition of the
Preferred Securities.
Except as set forth above, we express no opinion to any party as to
the tax consequences, whether United States federal, state, local or foreign, of
the issuance of the Subordinated Notes, the Preferred Securities, the Common
Securities, or any transactions related to or contemplated by such issuance.
We are furnishing this opinion to you solely for your benefit in connection with
the sale of the Preferred Securities pursuant to the Underwriting Agreement and
this opinion is not to be used, circulated, quoted, or otherwise referred to for
any other purpose without our written permission. This opinion is expressed as
of the date hereof, and we disclaim any undertaking to advise you of changes of
the facts stated or assumed herein or any subsequent changes in applicable law.
We consent to the filing of this opinion as Exhibit 8.1 to the Form
8-K of the Company dated January 13, 1999 as filed with the Securities and
Exchange Commission on January 20, 1999, and to the reference to Skadden, Arps,
Slate, Meagher & Flom LLP therein under the caption "Legal Matters." In giving
this consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
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Occidental Petroleum Corporation
Oxy Capital Trust I
January 20, 1999
Page 5
amended or the rules or regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher
& Flom LLP
