EXHIBIT 4.4
OCCIDENTAL PETROLEUM CORPORATION
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Officers' Certificate
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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
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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(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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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
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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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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
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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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(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
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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.
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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
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Name: J. R. Havert
Title: Vice President and Treasurer
By: /s/ John W. Alden
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Name: John W. Alden
Title: Assistant Secretary
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