<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 26, 1996.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
ISSUER OF SENIOR DEBT SECURITIES REGISTERED HEREBY
FINA OIL AND CHEMICAL COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 75-0990403
(State or other jurisdiction of incorporation (I.R.S. employer identification number)
or organization)
</TABLE>
---------------------
FINA PLAZA
DALLAS, TEXAS 75206
(214) 750-2400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
GUARANTOR OF SENIOR DEBT SECURITIES REGISTERED HEREBY
FINA, INC.
(Exact name of additional registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 13-1820692
(State or other jurisdiction of incorporation (I.R.S. employer identification number)
or organization)
</TABLE>
---------------------
FINA PLAZA
DALLAS, TEXAS 75206
(214) 750-2400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
CULLEN M. GODFREY
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
FINA, INC.
FINA PLAZA
DALLAS, TEXAS 75206
(214) 750-2400
(Name, address, including zip code, and telephone number, including area code,
of agent for service for both registrants)
---------------------
Copy to:
DON J. MCDERMETT, JR.
THOMPSON & KNIGHT, P.C.
1700 PACIFIC AVENUE
DALLAS, TEXAS 75201
(214) 969-1700
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC. From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------
$125,000,000
Senior Debt Securities, various aggregate
series............................. principal amount 100% $125,000,000 $43,103.50
- ------------------------------------------------------------------------------------------------------------------
Guarantee of Senior Debt Securities,
various series..................... -- (2) (2) None(3)
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- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The additional registrant will not be paid any portion of the proceeds in
respect of the Guarantee.
(3) Pursuant to Rule 457(n) under the Securities Act of 1933, no registration
fee is required with respect to this Guarantee.
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
[Form of Prospectus Supplement. A Prospectus Supplement in definitive form
reflecting the terms of each series of Senior Debt Securities will accompany the
definitive Prospectus in connection with each such series offered and sold
pursuant to the Registration Statement.]
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 199
$
FINA OIL AND CHEMICAL COMPANY
[SENIOR DEBT SECURITIES]
------------------------
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
FINA, INC.
------------------------
[Summary of terms of the Senior Debt Securities to be completed at time of
offering.]
The [Senior Debt Securities] will be unsecured senior obligations of Fina
Oil and Chemical Company (the "Company"), ranking pari passu with all other
existing and future unsecured and unsubordinated indebtedness of the Company and
senior in right of payment to all subordinated indebtedness of the Company. The
[Senior Debt Securities] will be unconditionally and irrevocably guaranteed on
an unsecured basis by the Company's parent, FINA, Inc. ("FINA"), which guarantee
shall rank pari passu with all other existing and future unsecured and
unsubordinated indebtedness of FINA and senior in right of payment to all
subordinated indebtedness of FINA. FINA has no direct debt outstanding to any
third parties. All of the indebtedness reflected in FINA's consolidated
financial statements constitutes indebtedness of its consolidated subsidiaries,
including the Company. The [Senior Debt Securities] will be effectively
subordinated to any and all existing and certain future secured indebtedness of
the Company and any and all existing and future indebtedness (whether or not
secured) of any subsidiary of the Company.
The [Senior Debt Securities] will be issued in the form of one or more
Global Securities (the "Global Securities") registered in the name of The
Depository Trust Company (the "Depository") or its nominee. Interests in the
Global Securities will be shown on, and transfers will be effected only through,
records maintained by the Depository and its participants. Except as described
herein, [Senior Debt Securities] in definitive form will not be issued. See
"Description of [Senior Debt Securities]" in this Prospectus Supplement. The
[Senior Debt Securities] will trade in the Depository's Same-Day Fund Settlement
System until their maturity, and secondary market trading activity in the
[Senior Debt Securities] will therefore settle in immediately available funds.
All payments of principal and interest will be made by the Company in
immediately available funds.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) COMPANY(3)
------------------------------------------------------
<S> <C> <C> <C>
Per [Senior Debt Security]................... % % %
Total........................................ $ $ $
</TABLE>
- ---------------
(1) Plus accrued interest, if any, from , 199 .
(2) The Company has agreed to indemnify the Underwriters against certain civil
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting" in this Prospectus Supplement.
(3) Before deducting estimated expenses of $ payable by the Company.
------------------------
The [Senior Debt Securities] are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject orders in whole or in part. It is expected that the [Senior Debt
Securities] will be made through the facilities of the Depository on or about
, 199 .
------------------------
[UNDERWRITERS]
------------------------
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 199 .
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE [SENIOR DEBT
SECURITIES] OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
S-2
<PAGE> 4
USE OF PROCEEDS
The net proceeds from the sale of the [Senior Debt Securities] are
estimated to be approximately $ (after deduction of underwriting
discounts and expenses payable by the Company). Such proceeds initially will be
used by the Company to [repay existing borrowings].
CAPITALIZATION
The following table sets forth the capitalization of FINA and its
consolidated subsidiaries (audited) and the Company and its consolidated
subsidiaries (unaudited) as of , 199 and as adjusted (unaudited) to
give effect to the issuance of the [Senior Debt Securities] offered hereby and
the application of the proceeds as indicated under "Use of Proceeds".
<TABLE>
<CAPTION>
, 199
---------------------------------------------
FINA OIL AND
CHEMICAL
COMPANY AND
FINA, INC.
AND SUBSIDIARIES SUBSIDIARIES
-------------------- --------------------
AS AS
ACTUAL ADJUSTED ACTUAL ADJUSTED
------- -------- ------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
Short-term obligations(1)(2)......................... $ $ $ $
Long-term debt(2):
[Senior Debt Securities], offered hereby...........
Senior notes(3)....................................
Other indebtedness.................................
Total debt.................................
Stockholders' Equity:
Preferred stock of $1 par value; authorized
4,000,000 shares; none issued...................
Class A common stock of $.50 par value; authorized
38,000,000 shares; issued shares......
Class B common stock of $.50 par value; authorized
2,000,000 shares; issued shares.......
Additional paid-in capital.........................
Retained earnings..................................
Total stockholders' equity.........................
Total debt and stockholders' equity........ $ $ $ $
======= ======== ======= ========
</TABLE>
- ---------------
(1) FINA itself has no outstanding debt to third parties, i.e. subsidiaries of
FINA are the direct obligors on all of the debt reflected in the foregoing
table.
(2) As of , 19 , after giving pro forma effect to the sale of the
[Senior Debt Securities] offered hereby and the use of proceeds described
above, the Company would have had approximately $ million of total
unsubordinated indebtedness, approximately $ million of which was secured
indebtedness.
(3) In May 1993, the Company issued an aggregate of $275 million principal
amount of its senior notes in a private placement, of which $ million
principal amount is outstanding. See "Description of Senior Debt
Securities" in the accompanying Prospectus.
[RECENT DEVELOPMENTS
To be completed with additional information, if necessary.]
DESCRIPTION OF [SENIOR DEBT SECURITIES]
The following description of the particular terms of the [Senior Debt
Securities] offered hereby supplements, and to the extent inconsistent therewith
replaces, the description of the general terms and provisions of the [Senior
Debt Securities] set forth in the accompanying Prospectus.
GENERAL
[Terms to be completed at time of offering.]
S-3
<PAGE> 5
GLOBAL SECURITIES
The [Senior Debt Securities] will be issued in whole or in part in the form
of one or more Global Securities deposited with, or on behalf of, the Depository
and registered in the name of a nominee of the Depository. Except under the
limited circumstances described in the Prospectus under "Description of Senior
Debt Securities -- Global Securities," owners of beneficial interests in Global
Securities will not be entitled to physical delivery of [Senior Debt Securities]
in certificated form. Global Securities may not be transferred except 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 or by the
Depository or any nominee to a successor of the Depository or a nominee of such
successor. A further description of the Depository's procedures with respect to
Global Securities representing the [Senior Debt Securities] is set forth in the
Prospectus under "Description of Senior Debt Securities -- Global Securities".
The Depository has confirmed to the Company, the Underwriters and the Trustee
that it intends to follow such procedures.
The Depository has advised the Company and the Underwriters as follows: The
Depository is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository was created to hold
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depository's participants include securities brokers and dealers (including the
Underwriters), banks, trust companies, clearing corporations and certain other
organizations, some of which (and/or their representatives) own the Depository.
Access to the Depository's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Persons who are not participants may own beneficial interests in Global
Securities held by the Depository only through participants.
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement") among the Company and the underwriters named
below (the "Underwriters"), the Company has agreed to sell to each of the
Underwriters, and each of the Underwriters, for whom [Name(s) of Managing
Underwriter(s)] are acting as representatives, has severally agreed to purchase
from the Company, the principal amount of the [Senior Debt Securities] set forth
opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF [SENIOR
UNDERWRITER DEBT SECURITIES]
----------- -----------------
<S> <C>
[Underwriters]....................................................... $
-----------
Total...................................................... $
===========
</TABLE>
The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that the
Underwriters will be obligated to purchase all of the [Senior Debt Securities]
if any are purchased.
The Underwriters propose to offer the [Senior Debt Securities] in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement and in part to certain securities
dealers at such price less a concession not to exceed % of the principal
amount of the [Senior Debt Securities]. The Underwriters may allow, and such
dealers may reallow, a concession not to exceed % of the principal amount
of the [Senior Debt Securities] to certain brokers and dealers. After the
[Senior Debt Securities] are released for sale to the public, the offering price
and other selling terms may from time to time be varied by the representatives.
S-4
<PAGE> 6
The [Senior Debt Securities] are a new issue of securities with no
established trading market. [The Company has been advised by the Underwriters
that they presently intend to make a market in the [Senior Debt Securities], but
the Underwriters are not obligated to do so and may discontinue any market
making activities at any time without notice.] No assurance can be given as to
the existence or the liquidity of any trading market for the [Senior Debt
Securities].
The Company has agreed to indemnify the several Underwriters with respect
to certain civil liabilities, including liabilities under the Securities Act of
1933, as amended.
[Description of any other business relationships with the Underwriters.]
S-5
<PAGE> 7
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 26, 1996
PROSPECTUS
FINA OIL AND CHEMICAL COMPANY
SENIOR DEBT SECURITIES
---------------------
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
FINA, INC.
---------------------
Fina Oil and Chemical Company (the "Company" or "FOCC") may from time to
time issue and offer up to $125,000,000 (or its equivalent in other currencies)
aggregate principal amount of unsecured senior debt securities (the "Senior Debt
Securities") consisting of bonds, debentures, notes and/or other unsecured
evidences of indebtedness in one or more series. The Senior Debt Securities may
be offered as separate series in amounts, at prices and on terms to be
determined at the time of sale. The Senior Debt Securities will be
unconditionally guaranteed on an unsecured basis by the Company's parent, FINA,
Inc. ("FINA" or the "Guarantor"). The Company is a wholly-owned subsidiary of
FINA. An accompanying Prospectus Supplement will set forth, with regard to the
Senior Debt Securities in respect of which this Prospectus is being delivered,
the terms of the Senior Debt Securities, including, where applicable, the
specific designation, priority, aggregate principal amount, denominations,
currency of issue and payment, maturity, rate (which may be fixed or variable)
and time of payment of any interest, any terms for redemption at the option of
the Company or the holder, any terms for sinking fund payments, any listing on a
securities exchange and the initial public offering price and any other terms in
connection with the offering and sale of such Senior Debt Securities. The Senior
Debt Securities, when issued, will, except under certain circumstances, rank on
a parity with all other unsecured and unsubordinated indebtedness of the
Company.
The Company may sell Senior Debt Securities to or through underwriters, and
also may sell Senior Debt Securities directly to other purchasers or through
agents. An accompanying Prospectus Supplement will set forth the names of any
underwriters or agents involved in the sale of the Senior Debt Securities in
respect of which this Prospectus is being delivered, the principal amounts, if
any, to be purchased by underwriters and the compensation, if any, of such
underwriters or agents.
The Senior Debt Securities will be unsecured obligations of the Company,
ranking pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Company and senior in right of payment to all
subordinated indebtedness of the Company. The Senior Debt Securities will be
unconditionally and irrevocably guaranteed on an unsecured basis by the
Company's parent, FINA, which guarantee shall rank pari passu with all other
existing and future unsecured and unsubordinated indebtedness of FINA and senior
in right of payment to all subordinated indebtedness of FINA. FINA has no direct
debt outstanding to any third parties. All of the indebtedness reflected in
FINA's consolidated financial statements constitutes indebtedness of its
consolidated subsidiaries, including the Company. As of May 31, 1996, after
giving pro forma effect to the sale of the Senior Debt Securities offered hereby
and the use of proceeds described in the Prospectus Supplement accompanying this
Prospectus, the Company would have had approximately $549 million of total
unsubordinated indebtedness, approximately $17.9 million of which was secured
indebtedness. The Senior Debt Securities will be effectively subordinated to any
and all existing and future secured indebtedness of the Company and any and all
existing and certain future indebtedness (whether or not secured) of any
subsidiary of the Company.
The indenture under which the Senior Debt Securities will be issued does
not contain any limitation on the ability of the Company or FINA to incur
additional debt or on the ability of the Company's or FINA's subsidiaries to
incur additional debt to the Company or FINA or to unaffiliated third parties.
See "Description of Senior Debt Securities" in this Prospectus.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of Senior Debt
Securities unless accompanied by a Prospectus Supplement.
---------------------
The date of this Prospectus is , 199 .
<PAGE> 8
AVAILABLE INFORMATION
Fina Oil and Chemical Company, a Delaware corporation (herein and in the
Prospectus Supplement referred to as the "Company" or "FOCC"), and FINA, Inc., a
Delaware corporation (which, together with its subsidiaries consolidated for
financial reporting purposes, is herein and in the Prospectus Supplement
referred to as "FINA" or the "Parent," unless otherwise specified herein or the
context requires otherwise), have filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (herein,
together with all amendments and exhibits, referred to as the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), with
respect to the Senior Debt Securities offered hereby and FINA's guarantee
applicable thereto. This Prospectus and the Prospectus Supplement, which form a
part of the Registration Statement, do not contain all the information set forth
in the Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement.
FINA is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Certain current
information concerning such corporation's directors and officers and their
remuneration, options granted to them, the principal holders of securities and
any material interest of such persons in transactions with FINA is disclosed in
a proxy statement distributed to shareholders of FINA and in certain of FINA's
reports filed with the Commission. As long as FINA is subject to such periodic
and information reporting requirements, it will file all reports, proxy
statements and other information with the Commission required thereby. Such
reports, proxy statements and other information may be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and at 7 World Trade Center, Suite 1300, New
York, New York 10048. Copies of such materials can be obtained by mail at
prescribed rates from the Public Reference Branch of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, such material may also be
inspected and copied at the offices of the American Stock Exchange, Information
Center, 86 Trinity Place, New York, New York 10006.
FOCC is not subject to the informational requirements of the Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by FINA with the Commission pursuant to the
Exchange Act are incorporated herein by reference:
1. The Annual Report on Form 10-K of FINA for the fiscal year ended
December 31, 1995, as amended;
2. The Quarterly Report on Form 10-Q of FINA for the quarter ended
March 31, 1996, as amended; and
3. All other documents filed by FINA pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Senior Debt
Securities offered hereby.
FINA's Annual Reports on Form 10-K (subsequent to the Annual Report on Form
10-K for the fiscal year ended December 31, 1995, as amended) will include
summary information concerning FOCC, and FINA's Quarterly Reports on Form 10-Q
(subsequent to the Quarterly Report on Form 10-Q for the quarter ended March 31,
1996, as amended) will also include FOCC summary financial information.
Any statement or other information contained herein or in a document or
information incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus and the
Prospectus Supplement to the extent that a statement or other information
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated by reference herein modifies or supersedes such
statement or other information. Any such statement or other information so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or the Prospectus Supplement.
2
<PAGE> 9
The Company will provide without charge to each person to whom this
Prospectus and the Prospectus Supplement have been delivered, upon the request
of any such person, a copy of any and all of the documents which have been or
may be incorporated by reference in this Prospectus and the Prospectus
Supplement, other than exhibits to such information (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Cullen M. Godfrey, Senior Vice President, Secretary and General
Counsel, FINA, Inc., Fina Plaza, Dallas, Texas 75206, telephone (214) 750-2400.
THE COMPANY
The Company, which is a wholly-owned subsidiary of FINA, is engaged in
three principal lines of business: (1) crude oil and natural gas exploration and
production; (2) petroleum products refining, supply and transportation, and
marketing; and (3) chemicals manufacturing and marketing.
The Company was incorporated in Delaware in 1958 as American Petrofina
Company of Texas, and the address of its principal executive office is Fina
Plaza, Dallas, Texas 75206, and its telephone number is (214) 750-2400.
THE GUARANTOR
GENERAL
FINA was organized in 1956 as American Petrofina, Incorporated and is part
of an international group of approximately 166 companies in 34 countries which
are affiliated with PetroFina S.A., a publicly-held corporation organized under
the laws of the Kingdom of Belgium. Petrofina Delaware, Incorporated ("PDI")
owns approximately 85% and 100% of the Class A and Class B common stock of FINA,
respectively. PetroFina S.A. owns 100% of American Petrofina Holding Company
which owns 75% of the outstanding stock of PDI. The remaining 25% of PDI's
outstanding stock is owned by PetroFina S.A.
Through its operating subsidiaries, FINA is engaged in three principal
lines of business: (1) crude oil and natural gas exploration and production, and
natural gas marketing, (2) petroleum products refining, supply and
transportation, and marketing; and (3) chemicals manufacturing and marketing
(primarily petrochemicals and plastics, including polypropylene, polystyrene,
styrene monomer and high density polyethylene) and the licensing of certain
chemical processes to others. Crude oil and natural gas exploration and
production, petroleum products refining, supply and transportation, and
marketing are conducted through the Company; natural gas marketing is conducted
through Fina Natural Gas Company; the licensing of proprietary processes to
others is conducted through Fina Technology, Inc.; and petrochemical and
plastics manufacturing and marketing are conducted through the Company and
through Cos-Mar Company, a 50%-owned joint venture.
LEGAL PROCEEDINGS
As of December 31, 1995, neither FINA nor any of its subsidiaries was a
party to, nor was any of their property subject to, any uninsured material
pending legal proceedings or claim which exceeds 10% of FINA's current assets.
For a description of certain proceedings involving environmental claims in
excess of $100,000, please see Item 3, "Legal Proceedings," in FINA's Annual
Report on Form 10-K for the year ended December 31, 1995, as amended. A reserve
has been established for environmental contingencies in accordance with FINA's
practice regarding environmental costs. The level of future expenditures for
environmental matters, including clean-up obligations, is impossible to
determine with any degree of accuracy.
3
<PAGE> 10
USE OF PROCEEDS
Except as otherwise provided in the related Prospectus Supplement, the net
proceeds from the sale of the Senior Debt Securities will be used for general
corporate purposes, including acquisitions and the reduction of short-term and
long-term borrowings. Any specific allocation of the net proceeds of an offering
of the Senior Debt Securities will be described in the related Prospectus
Supplement. The precise amount and timing of sales of the Senior Debt Securities
will be dependent on the Company's capital requirements, market conditions and
the availability and cost of other funds to the Company.
RATIO OF EARNINGS TO FIXED CHARGES(1)
<TABLE>
<CAPTION>
FOR THE THREE
MONTHS
ENDED MARCH 31, FOR THE FISCAL YEARS ENDED DECEMBER 31,
--------------- ----------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
FOCC................................... 3.9x 4.1x 3.4x 3.6x 2.4x 1.2x 1.6x
FINA................................... 5.1x 4.2x 3.5x 3.7x 2.3x 1.2x 1.5x
</TABLE>
- ---------------
(1) The ratio of earnings to fixed charges is computed for each of FOCC and FINA
as a whole, including each such entity's consolidated subsidiaries. For
purposes of calculating this ratio, earnings consist of consolidated income
before income taxes and fixed charges. Fixed charges consist of interest on
outstanding debt and one-third of net rentals (representing the portion of
such rentals estimated to be attributable to interest).
4
<PAGE> 11
SUMMARY OF SELECTED FINANCIAL DATA
FINA
The following is a summary of certain selected financial data related to
FINA for the three months ended March 31, 1996 and 1995, and for each of the
years in the five-year period ended December 31, 1995. The data as of and for
each of the years in the five-year period ended December 31, 1995 is derived
from the consolidated financial statements of FINA audited by KPMG Peat Marwick
LLP, independent certified public accountants. The December 31, 1995 and 1994
consolidated balance sheets and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1995, as supplemented to include certain
summary financial data concerning FOCC, are included in this Prospectus. See
"Index to Consolidated Financial Statements of FINA, Inc." herein. Such audited
financial statements differ from those incorporated by reference in FINA's
Annual Report on Form 10-K for the year ended December 31, 1995 only to the
extent that the audited financial statements included herein contain such
additional data concerning FOCC. The data as of and for the three months ended
March 31, 1996 and 1995 is derived from the unaudited consolidated financial
statements of FINA included in the Quarterly Report on Form 10-Q of FINA for the
quarter ended March 31, 1996. Such unaudited consolidated financial statements,
as supplemented to include certain summary financial data concerning FOCC, are
included in this Prospectus. See "Index to Consolidated Financial Statements of
FINA, Inc." herein. Such unaudited financial statements differ from those
included in such Quarterly Report on Form 10-Q in that the unaudited financial
statements included herein contain such additional data concerning FOCC. Such
unaudited financial statements reflect all adjustments which in the opinion of
management are necessary for a fair presentation of the results of such interim
periods. The interim results of operations for the three months ended March 31,
1996 are not necessarily indicative of results for the entire year. The
following summary is qualified in its entirety by the financial statements and
the notes thereto included in this Prospectus.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31, FOR THE FISCAL YEARS ENDED DECEMBER 31,
----------------------- --------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS, RATIO'S AND %'S)
INCOME STATEMENT DATA:
Revenues:
Sales................................. $ 965,115 $ 863,188 $3,606,637 $3,421,112 $3,416,223 $3,397,523 $3,336,353
Interest and other income, net........ (2,715) (1,850) (11,111) 15,987 103,605 11,241 2,858
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total revenues.................. 962,400 861,338 3,595,526 3,437,099 3,519,828 3,408,764 3,339,211
Cost of raw materials and products
purchased............................. 724,868 636,774 2,673,521 2,525,139 2,637,843 2,619,541 2,526,811
Operating profit(1)..................... 70,011 65,246 215,023 180,971 47,466 67,929 117,512
Depreciation, depletion, amortization
and lease impairment(2)............... 39,683 38,445 213,964 185,961 198,341 194,804 190,947
Interest expense........................ 9,738 11,958 42,834 44,601 54,956 59,060 66,807
Earnings before income taxes and
cumulative effect of accounting
change................................ 57,558 51,438 161,078 152,357 96,115 20,110 53,563
Income taxes............................ 19,536 17,948 56,653 50,316 25,762 (4,028) 11,555
Earnings before cumulative effect of
accounting change..................... 38,022 33,490 104,425 102,041 70,353 24,138 42,008
Cumulative effect of accounting
change(3)............................. -- -- -- -- -- (34,320) --
Net earnings (loss)..................... 38,022 33,490 104,425 102,041 70,353 (10,182) 42,008
Net earnings prior to the adoption of
SFAS 121.............................. -- -- 142,598 -- -- -- --
Earnings per common share(4):
Earnings before cumulative effect of
accounting change................... $ 1.22 $ 1.07 $ 3.35 $ 3.27 $ 2.26 $ 0.77 $ 1.35
Cumulative effect of accounting
change(3)........................... -- -- -- -- -- (1.10) --
Net earnings (loss)................... 1.22 1.07 3.35 3.27 2.26 (0.33) 1.35
Net earnings prior to the adoption of
SFAS 121............................ -- -- 4.57 -- -- -- --
Ratio of earnings to fixed charges(5)... 5.1 4.2 3.5 3.7 2.3 1.2 1.5
BALANCE SHEET DATA (AT END OF PERIOD):
Total assets............................ $2,582,921 $2,518,488 $2,487,718 $2,493,862 $2,511,353 $2,924,475 $2,916,341
Long-term debt and lease obligations,
excluding current installments........ 494,899 528,035 498,446 532,148 766,476 950,960 911,521
Total debt obligations.................. 554,619 651,118 553,920 650,162 810,732 1,214,701 1,112,575
Stockholders' equity.................... 1,197,523 1,162,716 1,178,057 1,144,807 1,098,827 1,076,966 1,135,923
Total debt-to-total capitalization(6)... 31.7% 35.9% 32.0% 36.2% 42.5% 53.0% 49.5%
OTHER FINANCIAL DATA:
Average shares outstanding(4)........... 31,210 31,190 31,198 31,188 31,180 31,126 31,059
Cash dividends per share(4)............. $ 0.60 $ 0.50 $ 2.30 $ 1.80 $ 1.60 $ 1.60 $ 1.60
Capital Expenditures.................... $ 38,991 $ 22,398 $ 218,436 $ 136,381 $ 125,472 $ 211,442 $ 296,590
</TABLE>
- ---------------
(1) Operating profit is defined as sales and other operating revenues less cost
of raw materials and products purchased; direct operating expenses, selling,
general and administrative expenses; taxes other than on income, dryhole and
abandonments; depreciation, depletion, amortization and lease impairments.
(2) Fiscal year 1995 depreciation, depletion, amortization and lease impairment
includes $58,723 for adoption of Statement of Financial Accounting Standards
No. 121, "Accounting for the Impairment of Long-Lived Assets to Be Disposed
Of" ("SFAS 121").
(3) Cumulative effect to January 1, 1992 of change in accounting for
postretirement benefits other than pensions.
(4) Adjusted for effects of May 1995 stock split.
(5) Earnings consist of consolidated income before income taxes and fixed
charges. Fixed charges consist of interest on outstanding debt and one third
of net rentals (representing the portion of such rentals estimated to be
attributable to interest).
(6) Capitalization consists of total debt obligations and stockholders' equity.
5
<PAGE> 12
THE COMPANY
The following is a summary of certain selected financial data related to
the Company for the three months ended March 31, 1996 and 1995 and for each of
the years in the five-year period ended December 31, 1995.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31, FOR THE FISCAL YEARS ENDED DECEMBER 31,
----------------------- --------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS, RATIO'S AND %'S)
INCOME STATEMENT DATA:
Revenues:
Sales............................... $ 857,808 $ 806,157 $3,363,505 $3,013,957 $3,099,097 $3,176,250 $3,219,002
Interest and other income, net...... (2,681) (1,848) (11,616) 13,930 99,787 864 1,609
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total revenues................ 855,127 804,309 3,351,889 3,027,887 3,198,884 3,177,114 3,220,611
Cost of raw materials and products
purchased........................... 633,791 582,761 2,441,862 2,134,075 2,329,228 2,405,303 2,425,363
Operating profit(1)................... 53,480 64,204 207,358 176,539 55,344 76,008 119,028
Depreciation, depletion, amortization
and lease impairment(2)............. 39,044 37,689 210,927 182,952 190,985 184,017 181,754
Interest expense...................... 9,744 11,972 42,918 44,650 54,984 59,054 66,736
Earnings before income taxes and
cumulative effect of accounting
change.............................. 41,055 50,384 152,824 145,819 100,147 17,818 53,901
Income taxes.......................... 13,935 17,580 53,750 48,157 26,843 (3,569) 11,628
Earnings before cumulative effect of
accounting change................... 27,120 32,804 99,074 97,662 73,304 21,387 42,273
Cumulative effect of accounting
change(3)........................... -- -- -- -- -- (34,320) --
Net earnings (loss)................... 27,120 32,804 99,074 97,662 73,304 (12,933) 42,273
Net earnings prior to the adoption of
SFAS 121............................ -- -- 137,247 -- -- -- --
Ratio of earnings to fixed
charges(4).......................... 3.9 4.1 3.4 3.6 2.4 1.2 1.6
BALANCE SHEET DATA (AT END OF PERIOD):
Total assets.......................... $2,500,150 $2,450,977 $2,400,928 $2,408,424 $2,408,484 $2,804,674 $2,746,386
Long-term debt and lease obligations,
excluding current installments...... 494,899 528,035 498,446 532,148 766,476 950,960 911,521
Total debt obligations................ 554,619 651,118 553,920 650,162 810,732 1,214,701 1,112,575
OTHER FINANCIAL DATA:
Capital expenditures.................. $ 38,509 $ 22,101 $ 216,240 $ 132,924 $ 122,011 $ 208,964 $ 292,811
</TABLE>
- ---------------
(1) Operating profit is defined as sales and other operating revenues less cost
of raw materials and products purchased; direct operating expenses, selling,
general and administrative expenses; taxes other than on income, dryhole and
abandonments; depreciation; depletion, amortization and lease impairments.
(2) Fiscal year 1995 depreciation, depletion, amortization and lease impairment
includes $58,723 for adoption of SFAS 121.
(3) Cumulative effect to January 1, 1992 of change in accounting for
postretirement benefits other than pensions.
(4) Earnings consist of consolidated income before income taxes and fixed
charges. Fixed charges consist of interest on outstanding debt and one-third
of net rentals (representing the portion of such rentals estimated to be
attributable to interest).
6
<PAGE> 13
DESCRIPTION OF SENIOR DEBT SECURITIES
GENERAL
The Senior Debt Securities are to be issued from time to time in one or
more series under an indenture (the "Indenture"), as supplemented from time to
time by an indenture supplement with respect to each series (each, an "Indenture
Supplement"), to be entered into between the Company, as issuer, FINA, as
guarantor, and Texas Commerce Bank National Association, as Trustee.
The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and qualified in their entirety by
reference to, all provisions of the Indenture and the related Indenture
Supplement, including the definitions of certain terms contained in the
Indenture. In particular, the term "Company" as used in the Indenture and the
related Indenture Supplement and in this section of the Prospectus means Fina
Oil and Chemical Company without its subsidiaries. Copies of the Indenture and
Indenture Supplement have been or will be filed as exhibits with the Commission.
Wherever particular sections or defined terms of the Indenture are referred to,
such sections or defined terms are incorporated herein by reference. Capitalized
terms not otherwise defined herein shall have the respective meanings given to
them in the Indenture. Article and section numbers set forth below refer to
provisions of the Indenture unless otherwise noted.
The Senior Debt Securities will be unsecured obligations of the Company.
The Senior Debt Securities offered hereby will be limited to Senior Debt
Securities having an aggregate principal amount not to exceed $125,000,000 or
the equivalent thereof in any currency, although the Indenture provides that
additional senior debt securities may be issued thereunder up to the aggregate
principal amount, which is not limited by the Indenture, authorized from time to
time by the Company's Board of Directors. The Company may from time to time,
without the consent of the holders of any of the Senior Debt Securities offered
hereby, authorize the issuance of future series of Senior Debt Securities in
addition to those authorized as of the date of this Prospectus or any related
Prospectus Supplement. See "Capitalization" in the accompanying Prospectus
Supplement and "-- Priority" herein.
The Indenture under which the Senior Debt Securities are to be issued does
not contain any limitation on the ability of the Company or FINA to incur
additional debt or on the ability of FINA's subsidiaries to incur additional
debt to the Company or FINA or to unaffiliated third parties. See
"Capitalization" in the accompanying Prospectus Supplement and "-- Priority" and
"-- Certain Covenants" herein.
The particular terms of each series of Senior Debt Securities, as well as
any modification or addition to the general terms of the Senior Debt Securities
as herein described which may be applicable to a particular series of Senior
Debt Securities, are described in the Prospectus Supplement relating to such
series of Senior Debt Securities and will be set forth in a filing with the
Commission. Accordingly, for a description of the terms of a particular series
of Senior Debt Securities, reference must be made to both the Prospectus
Supplement relating to such series and the description of Senior Debt Securities
set forth in this Prospectus. In addition to the provisions of the Senior Debt
Securities hereinafter described, the Prospectus Supplement relating to each
particular series of Senior Debt Securities will set forth or describe: (1) the
title of such Senior Debt Securities; (2) any limit on the aggregate principal
amount of such Senior Debt Securities; (3) the percentage of their principal
amount at which such Senior Debt Securities will be issued; (4) the date or
dates on which such Senior Debt Securities will mature; (5) the rate or rates
per annum (which may be fixed or variable), or the method by which such rate or
rates shall be determined, at which such Senior Debt Securities will bear
interest, if any; (6) the date or dates from which any such interest shall
accrue, or the method by which such date or dates shall be determined, and the
times at which any such interest will be payable; (7) the period or periods
within which, the price or prices at which and the terms and conditions upon
which such Senior Debt Securities may be redeemed, in whole or in part, at the
option of the Company or the holder, if the Company or the holder is to have
such an option; (8) the obligation, if any, of the Company to redeem, repay or
purchase such Senior Debt Securities pursuant to any sinking fund or analogous
provision and the period or periods within which, the price or prices at which
and the terms and conditions upon which such Senior Debt Securities shall be
redeemed, repaid or purchased, in whole or part, pursuant to
7
<PAGE> 14
such obligation; (9) the denominations in which such Senior Debt Securities are
authorized to be issued and the currencies in which such Senior Debt Securities
are issued or payable; (10) any additional Event of Default with respect to such
Senior Debt Securities; (11) whether such Senior Debt Securities are to be
issued in whole or in part in the form of one or more global securities ("Global
Securities") and, if so, the identity of a depository for such Global Security
or Securities; and (12) any other terms of such Senior Debt Securities not
inconsistent with the provisions of the Indenture, or any provisions expressly
amending the Indenture with respect to the series of Senior Debt Securities to
which such Prospectus Supplement relates.
If the principal of (and premium, if any) or interest, if any, on any
Senior Debt Securities are to be payable in any currency other than U.S. dollars
or, at the election of the Company or a holder thereof, in one or more
currencies or composite currencies, or if any index is used to determine the
amount of payments of principal of (and premium, if any) or interest, if any, on
any series of Senior Debt Securities, any special Federal income tax, accounting
and other considerations applicable thereto will be described in the Prospectus
Supplement relating thereto.
Some of the Senior Debt Securities may be issued as original issue discount
Senior Debt Securities (bearing no interest or interest at a rate which at the
time of issuance is below market rates), to be sold at a discount below their
stated principal amount. Federal income tax, accounting and other special
considerations applicable to any such original issue discount Senior Debt
Securities will be described in the Prospectus Supplement relating thereto.
The Indenture does not contain any restriction on the Company's ability to
enter into a highly leveraged transaction or any provision affording special
protection to holders of Senior Debt Securities in the event the Company engages
in a highly leveraged transaction. Further, the Indenture does not contain any
provisions that would provide protection to holders of Senior Debt Securities
upon a sudden and dramatic decline in the credit quality of the Company
resulting from a takeover, recapitalization or similar restructuring of the
Company.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of and premium, if any, and interest on the Senior Debt Securities
will be payable, and the Senior Debt Securities will be exchangeable and
transfers thereof will be registrable, at the office or agency of the Company
designated for that purpose in Dallas, Texas (initially the office of the
Trustee), and any other office or agency of the Company designated for that
purpose, provided that, at the option of the Company, payment of any interest
may be made by check mailed to the address of the person entitled thereto as it
appears in the Senior Debt Security Register. (Sections 2.04, 2.06 and 5.02.)
The Company will from time to time execute and deliver Senior Debt
Securities to the Trustee for authentication and delivery, and the Trustee will
authenticate and deliver such Senior Debt Securities upon written order of the
Company. No service charge will be made for any transfer or exchange of the
Senior Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(Section 2.06.)
GUARANTEE BY FINA
FINA will unconditionally guarantee the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on the Senior Debt
Securities, and the due and punctual payment of any sinking fund or analogous
payments (including all additional amounts), when and as the same shall become
due and payable, whether at maturity, upon redemption, by declaration of
acceleration or otherwise. Holders of Senior Debt Securities need not exhaust
their recourse against the Company prior to proceeding against FINA under the
Guarantee. (Article Three).
The Guarantee will be a direct, unsecured and unsubordinated obligation of
FINA and will rank equally and ratably with other unsecured and unsubordinated
indebtedness of FINA. FINA has no direct debt outstanding to any third parties.
All of the indebtedness reflected in FINA's consolidated financial statements
constitutes indebtedness of its consolidated subsidiaries, including the
Company.
8
<PAGE> 15
PRIORITY
The Senior Debt Securities offered hereby will rank equally with the
Company's other general unsecured and unsubordinated indebtedness, including
indebtedness from time to time outstanding to banks and other unaffiliated
lenders. The Senior Debt Securities will be effectively subordinated to any and
all existing and certain future secured indebtedness of the Company and any and
all existing and future indebtedness (whether or not secured) of any subsidiary
of the Company. As of May 31, 1996, after giving pro forma effect to the sale of
the Senior Debt Securities offered hereby and the use of proceeds described in
the Prospectus Supplement accompanying this Prospectus, the Company would have
had approximately $549 million of total unsubordinated indebtedness,
approximately $17.9 million of which was secured indebtedness. As of May 31,
1996, none of the Company's subsidiaries had any outstanding indebtedness and
the Company had no outstanding indebtedness that would have been subordinated in
right of payment to the Senior Debt Securities. All series of Senior Debt
Securities of the Company issued under the Indenture will rank pari passu in
right of payment with each other. See "Capitalization" in the accompanying
Prospectus Supplement.
The Indenture provides that additional senior debt securities may be issued
thereunder up to the aggregate principal amount, which is not limited by the
Indenture, authorized from time to time by the Company's Board of Directors. Any
such additional senior debt securities would rank pari passu in right of payment
with the Senior Debt Securities offered hereby. Further, the Indenture does not
prohibit the Company from entering into additional indentures and issuing
thereunder additional debt securities that may rank pari passu in right of
payment to the Senior Debt Securities offered hereby.
CERTAIN COVENANTS
Liens. The Indenture provides that so long as any Senior Debt Securities
are outstanding, FINA will not, and will not permit any Restricted Subsidiary,
including the Company, to, pledge, mortgage, hypothecate or grant a security
interest in, or permit any mortgage, pledge, security interest or other lien
upon, any property or assets owned by FINA or any Restricted Subsidiary to
secure any Indebtedness, without making effective provision whereby outstanding
Senior Debt Securities shall (so long as such other indebtedness shall be so
secured) be equally and ratably secured. (Section 5.07.)
Under the terms of the Indenture, the foregoing limitation does not apply
to (a) any mortgage, pledge, security interest, lien or encumbrance upon any
property or assets created at the time of the acquisition of such property or
assets by FINA or any Restricted Subsidiary or within one year after such time
to secure all or a portion of the purchase price for such property or assets;
(b) any mortgage, pledge, security interest, lien or encumbrance upon any
property or assets existing thereon at the time of the acquisition thereof by
FINA or any Restricted Subsidiary (whether or not the obligations secured
thereby are assumed by FINA or any Restricted Subsidiary); (c) any mortgage,
pledge, security interest, lien or encumbrance upon any property or assets,
whenever acquired, of any corporation or other entity that becomes a Restricted
Subsidiary after the date of the Indenture, provided that (i) the instrument
creating such mortgage, pledge, security interest, lien or encumbrance shall be
in effect prior to the time such corporation or other entity becomes a
Restricted Subsidiary and (ii) such mortgage, pledge, security interest, lien or
encumbrance shall only apply to properties or assets owned by such corporation
or other entity at the time it becomes a Restricted Subsidiary or thereafter
acquired by it from sources other than FINA or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or encumbrance arising from or
in connection with a conveyance by FINA or a Restricted Subsidiary of any
production payment with respect to oil, gas, natural gas, carbon dioxide,
sulphur, helium, coal, metals, minerals, steam, timber or other natural
resources; (e) any mortgage, pledge, security interest, lien or encumbrance in
favor of FINA or any wholly-owned subsidiary; (f) any mortgage, pledge, security
interest, lien or encumbrance created or assumed by FINA or a Restricted
Subsidiary in connection with the issuance of debt securities the interest on
which is excludable from gross income of the holder of such security pursuant to
the Internal Revenue Code of 1986, as amended, for the purpose of financing, in
whole or in part, the acquisition or construction of property or assets to be
used by FINA or a Subsidiary; (g) any extension, renewal or refunding of any
mortgage, pledge, security interest, lien or encumbrance securing any
Indebtedness in an amount which, together with all other Indebtedness secured by
a mortgage, pledge, security interest, lien or encumbrance that is not otherwise
permitted by the foregoing provisions, does not at
9
<PAGE> 16
the time of the incurrence of the Indebtedness so secured exceed 15% of FINA's
Consolidated Net Tangible Assets.
Sale and Leaseback Transactions. The Indenture provides that so long as any
Senior Debt Securities are outstanding, FINA will not enter into and will not
permit a Restricted Subsidiary, including the Company, to enter into any Sale
and Leaseback Transaction with respect to any principal property owned by FINA
or such Restricted Subsidiary, unless (a) such Sale and Leaseback Transaction
involves a lease for a term of not more than three years; (b) such Sale and
Leaseback Transaction is between FINA or such Restricted Subsidiary and a
Subsidiary; (c) FINA or such Restricted Subsidiary would be entitled to incur
indebtedness secured by a mortgage, pledge or other lien or encumbrance on such
Principal Property involved in such Sale and Leaseback Transaction at least
equal in amount to the Attributable Debt with respect to such Sale and Leaseback
Transaction without equally and ratably securing the Senior Debt Securities of
any applicable series pursuant to the covenant concerning future liens described
above; or (d) the proceeds of such Sale and Leaseback Transaction are at least
equal to the fair market value thereof and FINA applies an amount equal to the
greater of the net proceeds of such sale or the Attributable Debt with respect
to such Sale and Leaseback Transaction within 180 days of such sale to either
(or a combination) of (i) the retirement (other than the mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of
long-term debt of FINA or a Restricted Subsidiary (other than long-term debt
that is subordinated to the Senior Debt Securities) or (ii) the purchase,
construction or development of other comparable property. (Section 5.08.)
EVENTS OF DEFAULT AND NOTICE THEREOF
The Indenture defines an Event of Default with respect to any series of
Senior Debt Securities as being any one of the following events and such other
events as may be established for the Senior Debt Securities of a particular
series (as set forth in the related Prospectus Supplement): (a) failure to pay
interest on the Senior Debt Securities when due, continued for 30 days; (b)
failure to pay principal (including any sinking fund installment) of or premium,
if any, on the Senior Debt Securities when due; (c) failure to observe or
perform any other covenant of the Company set forth in the Indenture or the
Senior Debt Securities of such series, continued for 60 days after notice as
provided in the Indenture; (d) certain events of bankruptcy, insolvency or
reorganization in respect of the Company or FINA; and (e) any default or event
of default under any of the Company's $275 million principal amount of senior
notes issued in a 1993 private placement (collectively, the "Private Placement
Notes"), which default or event of default results in the Private Placement
Notes being declared due and payable prior to maturity, without such
acceleration having been rescinded or annulled, within 15 days of notice from
the Trustee or the holders of 25% of the Senior Debt Securities. (Section 7.01.)
Within 90 days after the occurrence of a Default known to the Trustee, the
Trustee is required to transmit notice thereof to the holders of the Senior Debt
Securities. Except in the case of a default in the payment of the principal of
(or premium, if any) or interest on any Senior Debt Security, or in the payment
of any sinking fund installment, the Trustee may withhold such notice if and so
long as it in good faith determines that the withholding of such notice is in
the interests of holders of the Senior Debt Securities. (Section 7.07.) If an
Event of Default in respect of a particular series of Senior Debt Securities
shall occur and be continuing, the Trustee or the holders of not less than 25%
in aggregate principal amount of the Senior Debt Securities of such series
outstanding may declare the principal of such series due and payable
immediately. (Section 7.01.) However, if prior to the entry of any judgment or
decree for the accelerated amount, the Company shall pay or deposit with the
Trustee all principal, premium, if any, and interest arrearage, then the holders
of not less than a majority in aggregate principal amount of the Senior Debt
Securities of the affected series shall have the right to waive all defaults and
the consequences of having declared all principal payments due. Such waiver will
not, however, be operative as against nor impair any rights arising as a result
of any subsequent Event of Default with respect to such series. (Section 7.01.)
The Trustee will not be charged with knowledge of any Event of Default other
than the Company's failure to make principal and interest payments unless actual
written notice thereof is received by the Trustee. (Section 7.01.) No Event of
Default with respect to a particular series of Senior Debt Securities
necessarily constitutes an Event of Default with respect to any other series of
Senior Debt Securities.
10
<PAGE> 17
The Indenture contains provisions regarding limitations on the right to
institute legal proceedings. No holder of any Senior Debt Securities of a
particular series shall have the right to institute an action or proceeding for
rights arising under the Indenture unless (i) such holder has given written
notice of default to the Trustee; (ii) the holders of not less than 25% of the
aggregate principal amount of Senior Debt Securities of such series shall have
made a written request to the Trustee to institute an action and offered the
Trustee such reasonable indemnification as it may require; (iii) the Trustee
shall not have commenced such action within 60 days of receipt of such notice
and indemnification offer; and (iv) no direction inconsistent with such request
has been given to the Trustee by the holders of not less than a majority of the
aggregate principal amount of the Senior Debt Securities of such series then
outstanding. Notwithstanding the foregoing, subject to applicable law and any
applicable subordination provisions, nothing shall prevent the holders of Senior
Debt Securities from enforcing payment of the principal of or premium, if any,
or interest on their Senior Debt Securities. No holder of Senior Debt Securities
of a particular series may have the right to prejudice the rights or obtain
priority or preference over the rights of any other holder of Senior Debt
Securities of such series. (Section 7.04.)
The holders of a majority in aggregate principal amount of the Senior Debt
Securities of such series outstanding at the time may 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, provided, however,
that the Trustee shall have the right to decline to follow such direction if,
being advised by counsel, the Trustee determines that the action so directed may
not lawfully be taken, or if the Trustee in good faith determines that the
action so directed would be unduly prejudicial to the holders of the Senior Debt
Securities not taking part in such action or would involve the Trustee in
personal liability. (Section 7.06.)
The Indenture provides that, in case an Event of Default in respect of a
particular series of Senior Debt Securities shall occur (which shall not have
been cured or waived), the Trustee will be required to use the degree of care of
a prudent man in the conduct of his own affairs. (Section 8.01.) Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or power under the applicable Indenture at the request of any of the
holders of the Senior Debt Securities of such series unless they shall have
offered to the Trustee reasonable security or indemnity. (Section 8.02.)
The Company will be required to furnish to the Trustee annually a statement
as to the fulfillment by the Company of all of its obligations under the
Indenture. (Section 5.06.)
GLOBAL SECURITIES
The Senior Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with or on
behalf of a depository located in the United States (a "Depository") identified
in the Prospectus Supplement relating to such series.
The specific terms of the depository arrangements with respect to any
Senior Debt Securities of a series will be described in the Prospectus
Supplement relating to such series. The Company anticipates that the following
provisions will apply to all depository arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Senior
Debt Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depository will be represented by a Global Security
registered in the name of such depository or its nominee. Upon the issuance of a
Global Security in registered form, the Depository for such Global Security will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Senior Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such Depository
or its nominee ("participants"). The accounts to be credited shall be designated
by the underwriters or agents of such Senior Debt Securities or by the Company,
if such Debt Securities are offered and sold directly by the Company. Ownership
of beneficial interests in such Global Securities will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Global Securities will be shown
on, and the transfer of that ownership interest will be effected only through,
records maintained by the Depository or its nominee for such Global Securities.
Ownership of beneficial interests in Global Securities by persons that hold
through participants will be shown on, and the transfer of that ownership
interest within such participant will be effected only through, records
maintained by such participant. The laws
11
<PAGE> 18
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a Global
Security.
So long as the Depository for a Global Security in registered form, or its
nominee, is the registered owner of such Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities of the series represented by such Global Security for all
purposes under the Indenture governing the Senior Debt Securities. Except as set
forth below, owners of beneficial interests in such Global Security will not be
entitled to have Senior Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Senior Debt Securities of such series in definitive form,
and will not be considered the owners or holders thereof under the applicable
Indenture.
Payment of principal of, premium, if any, and any interest on Senior Debt
Securities of a series registered in the name of or held by a Depository or its
nominee will be made to the Depository or its nominee, as the case may be, as
the registered owner or the holder of the Global Security representing such
Senior Debt Securities. None of the Company, the Trustee, any Paying Agent, or
the Senior Debt Security Registrar for such Senior Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
for such Senior Debt Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that the Depository for Senior Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in respect
of a permanent Global Security, will credit immediately participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of the
Depository. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name," and such payments will be the responsibility of such
participants. However, the Company has no control over the practices of the
Depository and/or the participants and there can be no assurance that these
practices will not be changed.
A Global Security may not be transferred except as a whole by the
Depository for such Global Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor of such
Depository or a nominee of such successor. If a Depository for Senior Debt
Securities of a series is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 90
days, the Company will issue Senior Debt Securities of such series in definitive
registered form in exchange for the Global Security or Securities representing
such Senior Debt Securities. In addition, the Company may at any time and in its
sole discretion determine not to have any Senior Debt Securities of a series in
registered form represented by one or more Global Securities and, in such event,
will issue Senior Debt Securities in definitive form in exchange for the Global
Security or Securities representing such Senior Debt Securities. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery in definitive form of Senior Debt Securities of
the series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Senior Debt Securities registered in its
name.
DEFEASANCE
The Company may terminate its obligations under the Indenture with respect
to the Senior Debt Securities of a series at any time by acquiring and
delivering all outstanding Senior Debt Securities of such series to the Trustee
for cancellation. The Company may also terminate all of its obligations under
the Indenture with respect to the Senior Debt Securities of a series, other than
its obligations in respect of payment of principal of and interest on the Senior
Debt Securities of such series, at any time by depositing in trust with the
Trustee money or non-callable U.S. Government Obligations sufficient to pay all
remaining indebtedness on the Senior Debt Securities of such series. Money or
securities so deposited in trust with the
12
<PAGE> 19
Trustee is for the sole benefit of the holders of the Senior Debt Securities of
such series. As a condition to defeasance, the Company must deliver to the
Trustee an Opinion of Counsel (as specified in the Indenture) to the effect that
holders of such Senior Debt Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance. Purchasers of
such Senior Debt Securities should consult their own advisors with respect to
the tax consequences to them of defeasance, including the applicability and
effect of tax laws other than the Federal income tax law. (Section 13.01.)
MERGER AND CONSOLIDATION
The Company may merge with another corporation if the Company is the
surviving corporation, or may consolidate with or merge into another corporation
or transfer all or substantially all of its assets to another corporation if the
resulting, surviving or transferee corporation assumes all obligations of the
Company under the Senior Debt Securities of each series and the Indenture, and
is not immediately thereafter in default under any covenant in the Indenture.
FINA may merge with another corporation if FINA is the surviving corporation, or
may consolidate with or merge into another corporation or transfer all or
substantially all of its assets to another corporation if the resulting,
surviving or transferee corporation assumes all obligations of FINA in respect
of the Guarantee and the Indenture, and is not immediately thereafter in default
under any covenant of the Indenture. (Article Twelve.)
MODIFICATION OF THE INDENTURE
With the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding Senior Debt Securities of a particular
series, the Indenture, the rights and obligations of the Company and the rights
of the holders of such series of Senior Debt Securities may be modified by the
Company and the Trustee. However, no modification of the terms of payment of
principal of or premium, if any, or interest on Senior Debt Securities of any
series, and no modification reducing the percentage of outstanding Senior Debt
Securities of a series required for modification, will be effective against any
holder of a Senior Debt Security of such series affected thereby without the
holder's consent. The Company, the Guarantor and the Trustee may also enter into
supplemental indentures, without obtaining the consent of the holders of any
series of Senior Debt Securities, to cure any ambiguity or to correct or
supplement any provision of the Indenture or any supplemental indenture which
may be defective or inconsistent with any other provision, to pledge any
property to or with the Trustee or to make any other provisions with respect to
matters or questions arising under the Indenture, provided that such action
shall not adversely affect the interests of the holders of the Senior Debt
Securities. Such supplemental indentures may also be entered into without the
consent of holders of any series of Senior Debt Securities to set forth the
terms of additional series of Senior Debt Securities, to evidence the succession
of another person to the Company or the Guarantor or to add to the covenants of
the Company or the Guarantor. (Article Eleven.)
CERTIFICATES AND OPINIONS TO BE FURNISHED TO TRUSTEE
The Indenture provides that, in addition to such other certificates or
opinions as may be specifically required by other provisions of the Indenture,
every application by the Company for action by the Trustee thereunder shall be
accompanied by a certificate of certain officers of the Company and an opinion
of counsel (who may be counsel for the Company) stating that, in the opinion of
the signers, all conditions precedent to such action have been complied with.
(Section 15.07.)
REPORT TO HOLDERS OF SENIOR DEBT SECURITIES
Audited financial statements of the Company will be provided annually to
holders of Senior Debt Securities. (Section 6.03.) The Trustee is required to
submit an annual report to the holders of the Senior Debt Securities regarding,
among other things, the Trustee's eligibility to serve as such, the priority of
the Trustee's claims regarding certain advances made by it, and any action taken
by the Trustee materially affecting the Senior Debt Securities.
13
<PAGE> 20
THE TRUSTEE
Texas Commerce Bank National Association, whose Corporate Trust Office is
located at 2200 Ross Avenue, Dallas, Texas 75201, will be the Trustee under the
Indenture with respect to each series of Senior Debt Securities issued
thereunder.
The Company and its affiliates maintain other banking relationships in the
ordinary course of business with the Trustee and its affiliates.
The Trustee may resign or be removed by the Company with respect to one or
more series of Senior Debt Securities and a successor trustee may be appointed
to act with respect to any such series. The holders of a majority in aggregate
principal amount of the Senior Debt Securities of any series may remove the
Trustee with respect to the Senior Debt Securities of such series. (Section
8.10.)
The Indenture contains certain limitations on the right of the Trustee
thereunder, in the event that it becomes a creditor of the Company, to obtain
payment of claims in certain cases, or to realize on certain property received
in respect of any such claim as security or otherwise. (Section 8.13.)
PLAN OF DISTRIBUTION
The Company may sell Senior Debt Securities to or through underwriters, and
also may sell Senior Debt Securities directly to other purchasers or through
agents.
The distribution of the Senior Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
In connection with the sale of Senior Debt Securities, underwriters may
receive compensation from the Company, or from purchasers of Senior Debt
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters may sell Senior Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers and
agents that participate in the distribution of Senior Debt Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of Senior Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the Act. Any
such underwriter or agent will be identified, and any such compensation received
from the Company will be described, in the Prospectus Supplement.
The Senior Debt Securities, when first issued, will have no established
trading market. Any underwriters or agents to or through whom Senior Debt
Securities are sold by the Company for public offering and sale may make a
market in such Senior Debt Securities, but such underwriters or agents will not
be obligated to do so and may discontinue any market making activities at any
time without notice. No assurance can be given as to the existence or the
liquidity of any trading market for any Senior Debt Securities.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Senior Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Senior Debt Securities shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Senior Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act.
14
<PAGE> 21
The specific terms and manner of sale of specific series of Senior Debt
Securities offered hereby are set forth or summarized in an accompanying
Prospectus Supplement.
LEGAL OPINIONS
The validity of the Senior Debt Securities offered hereby and the guarantee
by FINA and certain other legal matters will be passed upon for the Company and
FINA by Cullen M. Godfrey, Senior Vice President, Secretary and General Counsel
of FINA. Certain legal matters in connection with the Senior Debt Securities
offered hereby and the guarantee by FINA will be passed upon for the Company and
FINA by Thompson & Knight, A Professional Corporation, Dallas, Texas, special
counsel for the Company and FINA.
EXPERTS
The financial statements and schedule of FINA, Inc. and its subsidiaries as
of December 31, 1995 and 1994, and for each of the years in the three-year
period ended December 31, 1995, have been included and incorporated by reference
herein and in the registration statement in reliance upon the reports of KPMG
Peat Marwick LLP, independent certified public accountants, appearing elsewhere
herein and incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing. The report of KPMG Peat Marwick LLP
refers to a change in 1995 in the method of accounting for long-lived assets to
adopt the provisions of the Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 121.
15
<PAGE> 22
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS OF FINA, INC.
<TABLE>
<S> <C>
Independent Auditors' Report.......................................................... F-2
Consolidated Balance Sheet -- December 31, 1995 and 1994.............................. F-3
Consolidated Statement of Operations -- Three years ended December 31, 1995........... F-4
Consolidated Statement of Stockholders' Equity -- Three years ended December 31,
1995................................................................................ F-5
Consolidated Statement of Cash Flows -- Three years ended December 31, 1995........... F-6
Notes to Consolidated Financial Statements............................................ F-7
Condensed Consolidated Balance Sheet as of March 31, 1996 (unaudited)................. F-22
Condensed Consolidated Statement of Operations for the three months ended March 31,
1996 and 1995 (unaudited)........................................................... F-23
Condensed Consolidated Statement of Cash Flows for the three months ended March 31,
1996 and 1995 (unaudited)........................................................... F-24
Notes to Condensed Consolidated Financial Statements.................................. F-25
</TABLE>
The separate financial statements of Fina Oil and Chemical Company ("FOCC")
are not presented as FOCC is a wholly-owned subsidiary of FINA, Inc. and FINA,
Inc. will fully and unconditionally guarantee the Senior Debt Securities offered
hereby.
F-1
<PAGE> 23
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
FINA, Inc.:
We have audited the accompanying consolidated balance sheet of FINA, Inc.
and subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1995. These consolidated
financial statements are the responsibility of FINA, Inc.'s management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of FINA, Inc.
and subsidiaries as of December 31, 1995 and 1994, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1995, in conformity with generally accepted accounting
principles.
As discussed in note 6 to the consolidated financial statements, FINA, Inc.
adopted the provisions of the Financial Accounting Standards Board's Statement
of Financial Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of" in 1995.
KPMG Peat Marwick LLP
Dallas, Texas
January 26, 1996
F-2
<PAGE> 24
FINA, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1995 AND 1994
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
ASSETS
1995 1994
---------- ----------
<S> <C> <C>
Current assets:
Cash and cash equivalents......................................... $ 7,271 $ 3,533
Accounts and notes receivable, less allowance for doubtful
receivables of $6,711 in 1995 and $7,201 in 1994............... 336,246 365,614
Inventories....................................................... 301,496 286,538
Deferred Federal income taxes..................................... 30,455 21,381
Prepaid expenses and other current assets......................... 12,963 9,013
---------- ----------
Total current assets...................................... 688,431 686,079
---------- ----------
Investments in and advances to affiliates........................... 17,669 16,754
Net property, plant, and equipment, at cost, (successful efforts
method for oil and gas properties)................................ 1,662,887 1,691,062
Deferred charges and other assets, at cost less applicable
amortization...................................................... 118,731 99,967
---------- ----------
$2,487,718 $2,493,862
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short term obligations............................................ $ 20,000 $ 57,000
Current installments of long term debt and lease obligations...... 35,474 61,014
Accounts payable.................................................. 368,008 352,123
Accrued liabilities............................................... 120,447 100,264
---------- ----------
Total current liabilities................................. 543,929 570,401
---------- ----------
Long term debt and lease obligations, excluding current
installments...................................................... 498,446 532,148
Deferred Federal income taxes....................................... 177,229 159,704
Other deferred credits and liabilities.............................. 90,057 86,802
Stockholders' equity:
Preferred stock of $1 par value. Authorized 4,000,000 shares; none
issued......................................................... -- --
Class A common stock of $.50 par value. Authorized 38,000,000
shares; issued 29,207,572 shares in 1995 and 29,189,404 shares
in 1994........................................................ 14,604 14,595
Class B common stock of $.50 par value. Authorized and issued
2,000,000 shares............................................... 1,000 1,000
Additional paid-in capital.......................................... 450,601 450,029
Retained earnings................................................... 711,852 679,183
---------- ----------
Total stockholders' equity................................ 1,178,057 1,144,807
---------- ----------
Commitments and contingencies
$2,487,718 $2,493,862
========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 25
FINA, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
THREE YEARS ENDED DECEMBER 31, 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1995 1994 1993
--------- --------- ---------
<S> <C> <C> <C>
Revenues:
Sales and other operating revenues................... $3,606,637 $3,421,112 $3,416,223
Interest and other income, net....................... (11,111) 15,987 103,605
---------- ---------- ----------
3,595,526 3,437,099 3,519,828
---------- ---------- ----------
Costs and expenses:
Cost of raw materials and products purchased......... 2,673,521 2,525,139 2,637,843
Direct operating expenses............................ 361,711 398,269 375,879
Selling, general and administrative expenses......... 86,247 78,054 88,749
Taxes, other than on income.......................... 43,533 44,562 52,101
Dry holes and abandonments........................... 12,638 8,156 15,844
Depreciation, depletion, amortization and lease
impairment (1995 includes $58,723 for adoption of
SFAS 121)......................................... 213,964 185,961 198,341
Interest............................................. 50,707 47,023 58,190
Less interest capitalized............................ (7,873) (2,422) (3,234)
---------- ---------- ----------
3,434,448 3,284,742 3,423,713
---------- ---------- ----------
Earnings before income taxes................. 161,078 152,357 96,115
---------- ---------- ----------
Income taxes:
Current:
Federal........................................... 39,401 23,351 28,807
State............................................. 8,801 2,750 1,600
Deferred -- Federal.................................. 8,451 24,215 (4,645)
---------- ---------- ----------
56,653 50,316 25,762
---------- ---------- ----------
Net earnings................................. $ 104,425 $ 102,041 $ 70,353
========== ========== ==========
Earnings per common share:............................. $ 3.35 $ 3.27 $ 2.26
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 26
FINA, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
THREE YEARS ENDED DECEMBER 31, 1995
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
COMMON STOCK
---------------- ADDITIONAL TOTAL
PREFERRED PAID-IN RETAINED STOCKHOLDERS'
STOCK CLASS A CLASS B CAPITAL EARNINGS EQUITY
--------- ------- ------ ---------- -------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1992......... $ -- $14,572 $ 1,000 $ 448,576 $612,818 $1,076,966
Shares issued in connection with
employee benefit plans, 43,410
shares............................. -- 22 -- 1,376 -- 1,398
Net earnings......................... -- -- -- -- 70,353 70,353
Dividends paid, $1.60 per share...... -- -- -- -- (49,890) (49,890)
-------- ------- ------- --------- -------- ----------
Balance at December 31, 1993......... -- 14,594 1,000 449,952 633,281 1,098,827
Shares issued in connection with
employee benefit plans, 2,400
shares............................. -- 1 -- 77 -- 78
Net earnings......................... -- -- -- -- 102,041 102,041
Dividends paid, $1.80 per share...... -- -- -- -- (56,139) (56,139)
-------- ------- ------- --------- -------- ----------
Balance at December 31, 1994......... -- 14,595 1,000 450,029 679,183 1,144,807
Shares issued in connection with
employee benefit plans, 18,168
shares............................. -- 9 -- 632 -- 641
Expenses from stock split............ -- -- -- (60) -- (60)
Net earnings......................... -- -- -- -- 104,425 104,425
Dividends paid, $2.30 per share...... -- -- -- -- (71,756) (71,756)
-------- ------- ------- --------- -------- ----------
Balance at December 31, 1995......... $ -- $14,604 $ 1,000 $ 450,601 $711,852 $1,178,057
======== ======= ======= ========= ======== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE> 27
FINA, INC AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
THREE YEARS ENDED DECEMBER 31, 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
1995 1994 1993
--------- --------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings........................................... $ 104,425 $ 102,041 $ 70,353
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation, depletion, amortization, lease
impairment and abandonments....................... 214,952 190,044 210,055
Net equity in losses of affiliates.................. 4,713 6,269 5,504
Loss (gain) on sale of assets....................... 6,245 (18,768) (106,603)
Deferred income taxes............................... 8,451 24,215 (4,645)
Changes in assets and liabilities:
Accounts and notes receivable..................... 29,368 (72,345) 148,241
Inventories....................................... (14,958) (22,002) 102,982
Prepaid expenses and other current assets......... (3,950) 1,947 4,539
Accounts payable and accrued liabilities.......... 36,068 55,235 (43,408)
Other............................................. (19,140) 8,741 (8,728)
--------- --------- ---------
Net cash provided by operating activities...... 366,174 275,377 378,290
--------- --------- ---------
Cash flows from investing activities:
Additions to property, plant and equipment............. (213,142) (133,928) (121,899)
Proceeds from sales of assets.......................... 23,751 68,170 165,288
Proceeds from sale of notes receivable................. -- -- 34,337
Investments in and advances to affiliates.............. (7,582) (3,430) (6,369)
Dividends received in excess of equity in earnings of
affiliates.......................................... 1,954 10,699 1,261
--------- --------- ---------
Net cash provided by (used in) investing
activities................................... (195,019) (58,489) 72,618
--------- --------- ---------
Cash flows from financing activities:
Additions to long term debt and lease obligations...... 127,451 52,040 1,018,781
Payments of long term debt and lease obligations....... (186,693) (236,610) (1,352,750)
Net change in short term obligations................... (37,000) 24,000 (70,000)
Issuance of common stock............................... 581 78 1,398
Dividends paid......................................... (71,756) (56,139) (49,890)
--------- --------- ---------
Net cash used in financing activities.......... (167,417) (216,631) (452,461)
--------- --------- ---------
Net increase (decrease) in cash and cash equivalents..... 3,738 257 (1,553)
Cash and cash equivalents at beginning of year........... 3,533 3,276 4,829
--------- --------- ---------
Cash and cash equivalents at end of year................. $ 7,271 $ 3,533 $ 3,276
========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 28
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1995
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) GENERAL
FINA, Inc. and subsidiaries (the "Company") is a fully integrated energy
company. The Company's principal lines of business are crude oil and natural gas
exploration and production and natural gas marketing ("Upstream"); petroleum
products refining, supply and transportation and marketing ("Downstream"); and
chemicals manufacturing and marketing ("Chemicals"). The principal markets for
refined products are domestic wholesale and retail markets while natural gas is
sold primarily to domestic marketers and local distribution companies.
Petrochemical and plastic products are primarily sold to domestic manufacturers
of fiber, film, packaging and consumable products. Raw materials are readily
available and the Company is not dependant upon a single supplier or a few
suppliers.
Class A and Class B common stock are identical in all respects except on
any vote for the election of directors. The holders of record of the Class B
Common Stock are entitled to elect the smallest number comprising more than half
of the directors to be elected and the remaining directors are elected by the
holders of record of the Class A Common Stock voting separately as a class.
Petrofina Delaware, Incorporated (PDI) owns 100% of the Class B common stock and
approximately 85% of the Class A common stock. PetroFina S.A. (Petrofina), a
Belgian publicly-held corporation, owns 100% of American Petrofina Holding
Company which owns 75% of the stock of PDI. The remaining 25% of PDI's stock is
owned by Petrofina.
(B) PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company
and all of its significant subsidiaries. All significant intercompany balances
and transactions have been eliminated in consolidation.
(C) STATEMENTS OF CASH FLOWS
For purposes of reporting cash flows, all certificates of deposit and short
term highly liquid debt instruments, such as U.S. Treasury bills and notes, with
original maturities of three months or less are considered cash equivalents.
The indirect method is used to present cash flows from operating
activities. Additional cash flow information follows:
<TABLE>
<CAPTION>
1995 1994 1993
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Interest paid, net of amounts capitalized............... $45,249 $44,807 $52,101
======= ======= =======
Income taxes paid, net of refunds received.............. $38,132 $33,001 $14,344
======= ======= =======
</TABLE>
Capital lease obligations of $27,548,000 in 1994 and $26,501,000 in 1993
were converted into debt as a result of termination of time charters relating to
tankers.
(D) INVESTMENTS IN AFFILIATES
Investments in affiliates in which the Company owns between 20% and 50% of
the voting stock are carried at amortized cost adjusted for changes in equity
since acquisition.
(E) INVENTORIES
Crude oil and refined products and chemicals are priced at the lower of
cost (last-in, first-out) (LIFO) or market on an aggregate basis. Materials and
supplies are priced at average cost, not in excess of market; in the
F-7
<PAGE> 29
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
case of material salvaged, an allowance is made for obsolescence and
depreciation. Because of price declines in crude oil and refined products in
1993, a valuation reserve of $47,048,000 was established to reduce the LIFO cost
of inventory to net realizable value. As prices increased in 1994 the valuation
reserve was eliminated. The excess of replacement cost of crude oil and refined
products and chemicals over LIFO cost was $7,356,000 at December 31, 1995 and
$8,262,000 at December 31, 1994.
Certain inventory quantities were reduced, resulting in liquidations of
LIFO inventory which decreased pretax earnings by approximately $4,400,000 in
1995 and $5,600,000 in 1994.
A summary of inventories follows:
<TABLE>
<CAPTION>
DECEMBER 31
--------------------------------
1995 1994 1993
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Crude oil and refined products and chemicals......... $267,907 $250,808 $225,286
Materials and supplies............................... 33,589 35,730 39,250
-------- -------- --------
$301,496 $286,538 $264,536
======== ======== ========
</TABLE>
(F) PROPERTY, PLANT AND EQUIPMENT
Oil and gas properties are accounted for in accordance with Statement of
Financial Accounting Standards ("SFAS") No. 19. Costs to acquire mineral
interests in oil and gas properties, to drill exploratory wells that find
proved reserves and to drill and equip development wells are capitalized.
Geological and geophysical costs and costs to drill exploratory wells that do
not find proved reserves are expensed.
Unproved oil and gas properties that are individually significant are
periodically assessed for impairment of value and, if necessary, a loss is
recognized by providing an impairment allowance. The remaining unproved oil and
gas properties are aggregated and an overall impairment allowance is provided
based on prior experience. Capitalized costs of proved oil and gas properties
are depreciated and depleted by the unit-of-production method based on proved
oil and gas reserves estimated by Company engineers.
Substantially all other property, plant and equipment is depreciated by the
straight-line method at rates based on the estimated useful lives of the classes
of property.
Interest is capitalized as a component of the cost of construction and
development projects in progress.
Repairs and maintenance are charged to earnings as incurred. Renewals and
betterments are capitalized. When assets are sold, retired or otherwise disposed
of, the applicable costs and reserves are removed from the accounts and the
resulting gain or loss is recognized.
(G) RESEARCH AND DEVELOPMENT
Research and development costs, which are expensed as incurred, amounted to
$13,208,000 in 1995, $12,932,000 in 1994 and $12,233,000 in 1993.
(H) INCOME TAXES
Income taxes are accounted for pursuant to SFAS 109 "Accounting for Income
Taxes." The Company files a consolidated Federal income tax return with PDI and
its affiliates. Under the terms of the tax sharing agreement with PDI, the
Company is allocated Federal income taxes on a separate return basis.
F-8
<PAGE> 30
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(I) EARNINGS PER COMMON SHARE
Earnings per common share is based on the weighted average number of
outstanding shares. Shares issuable upon the exercise of stock options are
excluded from the computation since their effect is insignificant. The Company
declared a two-for-one stock split with a May 2, 1995 record date and reduced
the par value of both Class A and Class B stock from $1 to 50 cents per share.
Share and per share amounts in the accompanying financial statements and notes
thereto have been adjusted retroactively to reflect the stock split.
(J) FINANCIAL INSTRUMENTS
The Company utilizes derivative financial instruments to manage market
risks and reduce its exposure resulting from fluctuations in interest rates and
the prices of crude oil, refined products and natural gas. Derivative
instruments used include swap agreements, futures and options contracts and
forward purchase commitments. Gains and losses related to qualifying hedges are
deferred and included in the measurement of the related transaction, when the
hedged transaction occurs. Realized and unrealized changes in the fair value of
the remaining derivative financial instruments and forward commitments are
recognized in income in the period in which the change occurs. The Company's
practice is to not hold or issue financial instruments for trading purposes.
Instruments are either exchange-traded or with counterparties of high
credit quality; therefore, the risk of nonperformance by the counterparties is
considered to be negligible. Additional information regarding financial
instruments is shown in Note 4.
(K) USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(2) PROPERTY, PLANT AND EQUIPMENT
A summary of property, plant and equipment follows:
<TABLE>
<CAPTION>
DECEMBER 31
-------------------------
1995 1994
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Proved oil and gas properties............................... $ 905,554 $ 906,738
Unproved oil and gas properties............................. 232,085 254,998
Refining and marketing facilities........................... 1,342,609 1,332,412
Chemical facilities......................................... 449,034 343,577
Pipelines................................................... 75,126 82,976
Other....................................................... 47,124 40,624
---------- ----------
3,051,532 2,961,325
Less accumulated depreciation, depletion, amortization and
lease impairment.......................................... 1,388,645 1,270,263
---------- ----------
$1,662,887 $1,691,062
========== ==========
</TABLE>
F-9
<PAGE> 31
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Property, plant and equipment includes capitalized lease obligations and
related accumulated depreciation of $8,102,000 and $4,823,000 at December 31,
1995 and $4,653,000 and $3,866,000 at December 31, 1994.
(3) CURRENT AND LONG TERM DEBT
Short term obligations include $20,000,000 and $2,000,000 to various banks,
at December 31, 1995 and 1994, respectively, and bear interest at weighted
average rates of 5.85% and 6.15%, respectively. Short term obligations include
$55,000,000 due to PDI at December 31, 1994.
A summary of long term debt follows:
<TABLE>
<CAPTION>
DECEMBER 31
---------------------
1995 1994
-------- --------
(IN THOUSANDS)
<S> <C> <C>
6.64% Series A Senior Notes, due May 1, 2000................... $117,000 $117,000
7.13% Series B Senior Notes, due May 1, 2002................... 125,000 125,000
7.57% Series C Senior Notes, due May 1, 2003................... 33,000 33,000
Notes under revolving credit agreement with PDI, due in 1997
(6.24% at December 31, 1995)................................. 150,000 100,000
Note to PDI.................................................... -- 75,000
Other.......................................................... 105,579 141,359
-------- --------
Total long term debt................................. 530,579 591,359
Less current installments of long term debt.................... 34,248 60,197
-------- --------
Long term debt, excluding current installments....... $496,331 $531,162
======== ========
</TABLE>
The Company has a $400,000,000 revolving bank credit facility through May
2000 of which $50,000,000 was outstanding under the facility at December 31,
1995. The Company intends to use borrowings under this facility and a credit
facility with PDI to finance the repayment of $50,000,000 of short term
obligations due to various banks and has classified these borrowings as long
term debt at December 31, 1995. Borrowings under the credit facilities bear
interest at various market rate options.
The Senior Notes, a note payable to a bank, the bank revolving credit
facility and the PDI loan agreements contain provisions that limit mergers and
sales of assets, limit the incurrence of indebtedness and restrict payments to
stockholders. No material amounts of current and long term debt are
collateralized by Company assets.
Letters of credit are maintained with various banks, aggregating
$34,777,000 at December 31, 1995; principally for pollution control and worker's
compensation obligations.
The aggregate maturities of long term debt and capitalized lease
obligations for the five years ending December 31, 2000 are as follows:
1996 -- $35,474,000; 1997 -- $186,398,000; 1998 -- $62,529,000; 1999 --
$53,619,000; and 2000 -- $98,400,000.
(4) FINANCIAL INSTRUMENTS AND FAIR VALUES
The Company uses swap agreements, futures and options contracts and forward
purchase commitments to reduce its exposure to fluctuations in interest rates
and in the prices of crude oil, refined products and natural gas.
Interest rate swap agreements are used to help manage interest rate
exposure. Amounts to be paid or received under interest rate swap agreements are
accrued as interest rates change and are recognized over the
F-10
<PAGE> 32
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
life of the swap agreements as an adjustment to interest expense. The related
amounts payable to, or receivable from, the counterparties are included in other
accrued liabilities. The fair value of the swap agreements was not recognized in
the consolidated financial statements since they are accounted for as hedges.
These swap agreements expire at various dates through 2003 and effectively
convert an aggregate principal amount of $105,000,000 of fixed rate, long term
debt into variable rate borrowings and $100,000,000 of variable rate borrowings
to fixed. The variable interest rates are based on 3 month and 6 month LIBOR
rates. At December 31, 1995 and 1994, the weighted average variable interest
rates under these agreements were 5.9% and 6.19%, respectively, and fixed rates
were 6.5% and 6.3%, respectively.
The estimated fair value of the swap agreements, based on current market
rates, approximated a net payable of $815,000 and $9,898,000 at December 31,
1995 and 1994, respectively. Exposure to credit loss could occur when the fair
value of the agreements is a net receivable. The outstanding borrowings due to
PDI and various banks bear interest at current market rates and thus, the
carrying amount of debt approximates estimated fair value. The estimated fair
value of the debt instruments that bear interest at fixed rates was $331,000,000
($320,000,000 carrying value) at December 31, 1995, and $348,000,000
($379,000,000 carrying value) at December 31, 1994.
The Company hedges crude oil, refined products and natural gas future
purchases and sales commitments. The Company also uses derivative financial
instruments to reduce financial exposure from price changes related to
anticipated crude oil purchases and refined product and natural gas sales. At
December 31, 1995 and 1994, the Company had futures contracts to sell crude oil
and refined products in the amount of $13,661,000 and $26,930,000, respectively,
and forward contracts to purchase crude oil and refined products of $46,323,000
and $60,536,000, respectively. The estimated fair value and carrying value of
these outstanding contracts were a net receivable of $62,000 and $683,000 at
December 31, 1995 and 1994, respectively. The estimated fair values of the
futures and forward contracts are based on quoted market prices. The Company
recognizes realized and unrealized gains and losses on these contracts in income
in the period in which the change occurs. These contracts generally have
maturities of one year or less. Crude and refined product forward and purchase
contracts are used to facilitate the supply of crude to the Company's refineries
and sales of refined products while attempting to minimize price risk.
Derivative financial instruments related to natural gas activities were not
significant at December 31, 1995 and 1994. Market value is not readily
determinable for certain investments in equity securities and long term
receivables with a carrying value of $36,572,000 and $32,131,000 at December 31,
1995 and 1994, respectively. The reported amounts of cash equivalents, short
term receivables and payables and short term debt approximate fair value due to
their short maturities.
(5) INCOME TAXES
Actual income tax expense differs from the "normal" income tax expense at
U.S. statutory rates as follows:
<TABLE>
<CAPTION>
1995 1994 1993
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Computed income tax expense (at U.S. statutory rates)... $56,377 $53,325 $33,641
State income taxes, net of Federal benefit.............. 5,721 1,788 1,040
Tax-free benefits and dividends on Company owned life
insurance............................................. (2,358) (3,141) (3,352)
Section 29 credit....................................... (2,280) (2,088) (7,393)
Change in temporary differences due to 1994 tax rate
change................................................ -- -- 4,565
Miscellaneous items..................................... (807) 432 (2,739)
------- ------- -------
$56,653 $50,316 $25,762
======= ======= =======
</TABLE>
F-11
<PAGE> 33
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The tax effects of the primary temporary differences giving rise to the
deferred Federal income tax assets and liabilities as determined under SFAS 109
are as follows:
<TABLE>
<CAPTION>
DECEMBER 31
---------------------
1995 1994
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Deferred income tax assets:
Employee benefits............................................ $ 2,955 $ 5,875
Basis in inventories......................................... 5,845 7,519
Provision for losses......................................... 4,910 9,783
Alternative minimum tax credit carryforwards................. 43,816 59,943
Miscellaneous items.......................................... 9,993 6,771
-------- --------
Total deferred income tax assets..................... 67,519 89,891
-------- --------
Deferred income tax liabilities:
Property, plant and equipment, principally due to differences
in depreciation, depletion, amortization, lease impairment
and abandonments.......................................... 179,663 200,698
Investments in affiliates, principally due to differences in
joint venture depreciation................................ 34,372 26,401
Miscellaneous items.......................................... 258 1,115
-------- --------
Total deferred income tax liabilities................ 214,293 228,214
-------- --------
Net deferred Federal income tax liability............ $146,774 $138,323
======== ========
</TABLE>
At December 31, 1995, alternative minimum tax credit carryforwards of
approximately $43,816,000 are available to reduce future Federal regular income
taxes payable over an indefinite period.
(6) IMPAIRMENT OF LONG-LIVED ASSETS
During the fourth quarter of 1995, the Company adopted SFAS 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
Be Disposed Of" which resulted in a before-tax addition of $58,723,000 to
depreciation, depletion and amortization expense. After tax, the additional
charge was $38,173,000 or $1.22 per share.
Under SFAS 121, the Company now evaluates impairment of exploration and
production assets on a field-by-field basis rather than using a one country cost
center for its proved properties. On this basis, certain fields are impaired
because they are not expected to recover their entire carrying value from future
cash flows. In addition to the change in grouping of proved properties, the
value of certain marketing assets in the Company's Downstream business were also
determined to be impaired under SFAS 121. As a result, the Company recognized a
non-cash pre-tax charge of $52,523,000 related to its Upstream exploration and
production assets and $6,200,000 related to its Downstream marketing assets. The
fair values of the impaired assets were determined by using the present value of
expected future cash flows for the oil and gas properties and sales prices for
similar assets for certain marketing assets. If estimated future cash flows are
not achieved with respect to certain fields, further writedowns may be required.
F-12
<PAGE> 34
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(7) EMPLOYEE STOCK OPTIONS
Options to purchase shares of Class A common stock have been granted to
officers and employees under a stock option plan adopted in 1979. The stock
option plan expired in 1989, and no further grants will be made under that plan.
A summary of transactions follows:
<TABLE>
<CAPTION>
OPTION PRICE
NUMBER OF ----------------------
SHARES PER SHARE TOTAL
--------- --------- ---------
<S> <C> <C> <C>
Outstanding and exercisable at December 31, 1994.... 60,968 $ 35.25 $2,149,122
=======
Terminated and reverted to plan..................... (1,800) $ 35.25 (63,450)
=======
Exercised........................................... (18,168) $ 35.25 (640,422)
=======
------- ----------
Outstanding and exercisable at December 31, 1995.... 41,000 $ 35.25 $1,445,250
======= ======= ==========
</TABLE>
The option price for options granted is the market value at date of grant.
Each option granted expires ten years from date of grant. No amounts are
recorded until options are exercised, at which time proceeds in excess of the
par value of the shares are credited to additional paid-in capital.
(8) INVESTMENTS IN JOINT VENTURE
The Company and GE Plastics, a wholly-owned subsidiary of General Electric
Company (GE), are joint venturers in Cos-Mar Company, a chemical operation. The
Company's interest is 50% and is accounted for by the equity method. The
venturers reimburse the joint venture for the costs of operating the facility
and raw material and finished product inventories are the property of the
venturers. Direct operating expenses include charges from the joint venture of
$19,346,000 in 1995, $16,011,000 in 1994 and $15,990,000 in 1993. Investments in
and advances to the joint venture were $11,229,000 and $8,829,000 at December
31, 1995 and 1994. The Company has guaranteed the joint venture's borrowings
from a bank, which aggregated $40,000,000 at December 31, 1995. GE has
guaranteed the joint venture's borrowings from a bank, which aggregated
$74,200,000 at December 31, 1995.
(9) EMPLOYEE AND POST RETIREMENT BENEFITS
The Company and its subsidiaries have two defined benefit pension plans
covering substantially all employees. The benefits are based on years of service
and the employee's final average monthly compensation. The Company's funding
policy is to contribute annually not less than the minimum required nor more
than the maximum amount that can be deducted for Federal income tax purposes.
Contributions are intended to provide not only for benefits attributed to
service to date but also for those expected to be earned in the future.
A restoration benefit plan provides supplemental pension benefits to
certain participants whose benefits are limited by the defined benefit pension
plans. The funding policy is to contribute annually amounts equal to benefit
payments made.
F-13
<PAGE> 35
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the plans' funded status and the amounts recognized in the
consolidated balance sheet follows:
<TABLE>
<CAPTION>
DECEMBER 31
-------------------------------------------------
1995 1994
----------------------- -----------------------
DEFINED DEFINED
BENEFITS RESTORATION BENEFITS RESTORATION
PLANS PLAN PLANS PLAN
--------- ----------- --------- -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Actuarial present value of benefit
obligations:
Vested benefit obligation................ $(118,639) $(3,726) $ (94,196) $(3,785)
========= ======= ========= =======
Accumulated benefit obligation, including
vested benefits....................... $(131,956) $(3,726) $(104,895) $(3,796)
========= ======= ========= =======
Projected benefit obligation............... $(156,909) $(4,692) $(127,077) $(4,615)
Plan assets at fair value, primarily listed
stocks and U.S. Government securities.... 217,961 -- 180,705 --
--------- ------- --------- -------
Plan assets in excess of (less than)
projected benefit obligation............. 61,052 (4,692) 53,628 (4,615)
Unrecognized net (gain) loss from past
experience different from that assumed
and effect of changes in assumptions..... (614) 528 1,982 426
Unrecognized prior service cost being
recognized over 15 years................. 1,918 620 2,114 657
Unrecognized net (asset) liability at date
of adoption being recognized over 15.3
years.................................... (5,737) 728 (7,075) 850
Adjustment required to recognize minimum
liability................................ -- (910) -- (1,114)
--------- ------- --------- -------
Prepaid (accrued) pension cost included in
the balance sheet........................ $ 56,619 $(3,726) $ 50,649 $(3,796)
========= ======= ========= =======
</TABLE>
A summary of the components of pension expense (income) follows:
<TABLE>
<CAPTION>
1995 1994 1993
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Service cost-benefits earned during the year....... $ 4,920 $ 5,848 $ 5,620
Interest cost on projected benefit obligation...... 11,218 10,495 10,509
Actual return on plan assets....................... (43,665) (2,063) (22,914)
Net asset gain (loss) deferred for later
recognition...................................... 23,167 (17,128) 5,235
Amortization of unrecognized prior service cost.... 234 234 188
Amortization of unrecognized actuarial losses...... -- 33 18
Amortization of unrecognized net asset............. (1,217) (1,217) (1,217)
Cost of termination benefits....................... -- 710 --
-------- -------- --------
Total pension expense (income)........... $ (5,343) $ (3,088) $ (2,561)
======== ======== ========
</TABLE>
A summary of the actuarial assumptions used in calculating the plans'
present value of projected benefit obligation follows:
<TABLE>
<CAPTION>
1995 1994 1993
------ ------ ------
<S> <C> <C> <C>
Weighted average discount rate.......................... 7.50% 8.75% 7.50%
Rate of increase in future compensation levels.......... 4.00% 4.50% 4.50%
Expected long term rate of return on assets............. 11.00% 11.00% 11.00%
</TABLE>
The effect on the projected benefit obligation of these changes was an
increase of approximately $19,871,000 in 1995 and a decrease of approximately
$24,100,000 in 1994.
F-14
<PAGE> 36
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In addition to providing pension benefits, certain health care and life
insurance benefits are provided to active and certain retired employees who meet
eligibility requirements defined in plan documents. During 1995, substantially
all covered employees were eligible for those benefits after they reach normal
retirement age. The health care benefits in excess of certain limits and the
life insurance benefits are insured. The costs of providing these benefits for
active employees are expensed when the insurance premiums and claims are paid.
The cost of providing these benefits for active employees was $8,594,000 in
1995, $10,092,000 in 1994 and $11,219,000 in 1993.
A summary of the postretirement plan's funded status and the amounts
recognized in the consolidated balance sheet follows:
<TABLE>
<CAPTION>
DECEMBER 31
-------------------
1995 1994
------- -------
(IN THOUSANDS)
<S> <C> <C>
Accumulated postretirement benefit obligation:
Retirees....................................................... $42,018 $43,118
Fully eligible active plan participants........................ 2,981 3,443
Other active plan participants................................. 19,140 14,120
------- -------
64,139 60,681
Unrecognized net loss............................................ (4,999) (3,789)
Unrecognized prior service cost.................................. 219 241
------- -------
Accrued postretirement benefit cost.............................. $59,359 $57,133
======= =======
</TABLE>
A summary of the components of net periodic postretirement benefit cost
follows:
<TABLE>
<CAPTION>
1995 1994 1993
------ ------ ------
(IN THOUSANDS)
<S> <C> <C> <C>
Service cost............................................... $1,024 $1,226 $1,043
Interest cost.............................................. 5,111 4,878 4,653
Amortization of unrecognized prior service cost............ (22) (22) (22)
Amortization of net loss from earlier periods.............. -- 504 --
------ ------ ------
Net periodic postretirement benefit cost................... $6,113 $6,586 $5,674
====== ====== ======
</TABLE>
For measurement purposes, a 7.68% and 7.14% weighted average annual rate of
increase in the per capita cost of covered benefits (i.e., health care cost
trend rate) for pre-65 and post-65 years of age, respectively, was assumed for
1996; the rate was assumed to decrease gradually to 6% for pre-65 and 5% for
post-65 years of age by the year 2002 and remain at that level thereafter. An
8.67% and 7.50% annual rate for pre-65 and post-65 years of age, respectively,
was assumed for 1995. The health care cost trend rate assumption has a
significant effect on the amounts reported. For example, increasing the assumed
health care cost trend rates by one percentage point in each year would increase
the accumulated postretirement benefit obligation as of December 31, 1995 by
$2,835,000 and the aggregate of the service and interest cost components of net
periodic postretirement benefit cost for the year ended December 31, 1995 by
$297,000.
The weighted average discount rate used in determining the accumulated
postretirement benefit obligation was 7.5%, 8.75% and 7.5% at December 31, 1995,
1994 and 1993, respectively. The effect on the accumulated benefit obligation of
these changes was an increase of $7,766,000 in 1995 and a decrease of
$11,665,000 in 1994.
Defined contribution retirement savings plans (Thrift Plans) are available
to substantially all employees. The Thrift Plans permit employees to elect
salary deferral contributions of up to 10% of their compensation on
F-15
<PAGE> 37
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
a tax-deferred basis and requires the Company to match up to the first 6% of the
participants' compensation in the highest matched plan subject to salary caps.
The expense for the Company's contribution was $5,911,000 in 1995, $5,963,000 in
1994 and $6,007,000 in 1993.
(10) SALE OF ACCOUNTS AND NOTES RECEIVABLE
The Company sold certain accounts and notes receivable with recourse. At
both December 31, 1995 and 1994, $80,000,000 of accounts receivable were sold
and $27,742,000 and $32,100,000, respectively, of notes receivable were sold
under these agreements. The Company remains obligated to reimburse the
purchasers for any uncollectible amounts pursuant to the recourse provisions of
the agreements.
(11) LEASES
The Company occupies certain marketing and manufacturing facilities and
uses certain equipment under leases expiring at various dates over the next 20
years. Under terms of certain lease agreements, the Company has agreed not to
mortgage certain of its interests in oil and gas properties.
At December 31, 1995, minimum lease payments on capital and operating
leases were as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES (I) LEASES (II)
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
1996............................................................ $1,420 $24,785
1997............................................................ 1,419 21,827
1998............................................................ 824 17,260
1999............................................................ -- 13,147
2000............................................................ -- 7,042
Later years to 2015............................................. -- 7,527
------
Total minimum lease payments.......................... 3,663
Imputed interest (6.92%)........................................ 322
------
Present value of minimum lease payments (iii)................... $3,341
======
</TABLE>
- ---------------
(i) Substantially all leases provide that the Company shall pay taxes,
maintenance, insurance and certain other operating expenses applicable to
the leased properties.
(ii) Minimum payments have not been reduced by minimum sublease rentals of
approximately $2,426,000 which are due in the future under noncancellable
subleases.
(iii) Presented in the consolidated balance sheet as current installments and
noncurrent lease obligations of $1,226,000 and $2,115,000 at December 31,
1995 and $818,000 and $986,000 at December 31, 1994.
Total rental expense was $32,562,000 (net of $676,000 subleases) in 1995,
$26,962,000 (net of $1,191,000 subleases) in 1994 and $32,749,000 (net of
$1,345,000 subleases) in 1993. Contingent rentals were not significant.
(12) RELATED PARTY TRANSACTIONS
Sales and other operating revenues for 1993 include $37,300,000 of
reimbursements from business interruption and property damage insurance
resulting from a fire at the Big Spring refinery. The Company's insurance
provider on this claim is a wholly-owned subsidiary of Petrofina.
The Company has a 50% interest in joint ventures with PDI in Texas and with
Petrofina in Hong Kong which market chemicals in international trade. The
Company sold chemicals aggregating $3,652,000 in 1995, $1,401,000 in 1994 and
$985,000 in 1993 to the joint ventures.
F-16
<PAGE> 38
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Accounts receivable include $3,485,000 and $10,719,000 at December 31, 1995
and 1994, respectively, from affiliates.
Accounts payable include $13,410,000 and $6,539,000 at December 31, 1995
and 1994, respectively, to affiliates.
During 1994 the Company assumed a $50,000,000 note from PDI that was paid
in 1995. Interest expense relating to borrowings from PDI (see note 3) was
$12,938,000 in 1995, $13,916,000 in 1994 and $28,565,000 in 1993. Accrued
liabilities include accrued interest of $607,000 and $791,000 at December 31,
1995 and 1994, respectively, which is payable to PDI for such borrowings.
Crude oil and natural gas aggregating $8,953,000 in 1995, $16,626,000 in
1994 and $21,145,000 in 1993 were purchased from PDI in the ordinary course of
business.
Refined products and chemicals aggregating $53,542,000 in 1995, $34,963,000
in 1994 and $50,992,000 in 1993 were purchased from Petrofina and its affiliates
other than PDI in the ordinary course of business.
(13) CONTINGENCIES
The Company was contingently liable at December 31, 1995, under pending
lawsuits and other claims, some of which involved substantial sums. Considering
certain liabilities that have been set up for the lawsuits and claims, and the
difficulty in determining the ultimate liability in some of these matters,
internal counsel is of the opinion that the amounts, if any, that ultimately
might be due in connection with such lawsuits and claims would not have a
material adverse effect upon the Company's consolidated financial condition.
The Company is subject to loss contingencies pursuant to federal, state and
local environmental laws and regulations. These regulations, which are currently
changing, regulate the discharge of materials into the environment and may
require the Company to include existing and possible future obligations to
investigate the effects of the release or disposal of certain petroleum,
chemical and mineral substances at various sites; to remediate or restore these
sites; to compensate others for damage to property and natural resources and for
remediation and restoration costs. These possible obligations relate to sites
owned by the Company or others and associated with past or present operations,
including sites at which the Company has been identified as a potentially
responsible party ("PRP") under the federal Superfund laws and comparable state
laws. The Company is currently participating in environmental investigations,
assessments and cleanups under these regulations at federal Superfund and
state-managed sites, as well as other cleanup sites, including operating and
closed refineries, chemical facilities, service stations and terminals. The
Company may in the future be involved in additional environmental
investigations, assessments and cleanups. The amount of such future costs will
depend on such factors as the unknown nature and contamination at many sites,
the unknown timing, extent and method of the remedial actions which may be
required and the determination of the Company's liability in proportion to other
responsible parties.
Environmental expenditures are expensed or capitalized depending on their
future economic benefit. Expenditures that relate to an existing condition
caused by past operations and that have no future economic benefit are expensed.
Liabilities for expenditures of a noncapital nature are recorded when
environmental assessment and/or remediation is probable, and the costs can be
reasonably estimated. The Company has accrued for environmental remediation
obligations of $20,856,000 at December 31, 1995. These liabilities have not been
reduced for probable recoveries from third parties. Substantially all amounts
accrued are expected to be paid out over the next five to six years. The level
of future expenditures for environmental remediation obligations is impossible
to determine with any degree of probability. In 1995, the Company spent
approximately $14,782,000 in capital expenditures for environmental protection
and for compliance with federal, state and local environmental laws and
regulations. In addition, the Company expensed $43,135,000 in 1995 for ongoing
environmental administration and maintenance activities at operating facilities.
The Company also paid $10,165,000 for superfund taxes in 1995. Total
environmental cash expenditures at the
F-17
<PAGE> 39
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's operating locations are expected to increase over the next several
years as the Company complies with present and future regulatory requirements.
These costs will be incurred over an extended period of time. Estimated capital
expenditures for 1996 related to environmental matters are $18,351,000.
(14) SEGMENT DATA
The Company is engaged in crude oil and natural gas exploration and
production and natural gas marketing ("Upstream"); petroleum products refining,
supply and transportation and marketing ("Downstream"); and chemicals
manufacturing and marketing ("Chemicals"). Segment data as of and for the three
years ended December 31, 1995 follows (in thousands):
<TABLE>
<CAPTION>
CORPORATE
UPSTREAM DOWNSTREAM CHEMICALS AND OTHER CONSOLIDATED
-------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C> <C>
1995:
Sales:
Unaffiliated customers............. $352,932 $2,189,860 $1,059,731 $ 130 $ 3,602,653
======== ========== ========== =========
Affiliates......................... $ -- $ -- $ 3,984 $ -- 3,984
======== ========== ========== =========
Inter-segment...................... $ 44,095 $ 129,780 $ 7,423 $ -- --
======== ========== ========== ========= -----------
$ 3,606,637
===========
Operating profit (loss)(1)............ $(60,653) $ (2,777) $ 295,905 $ (17,452) $ 215,023
Interest and other income............. (6,258) (1,940) (5,292) 2,379 (11,111)
Interest expense, net................. -- -- -- (42,834) (42,834)
-------- ---------- ---------- --------- -----------
Earnings (loss) before income
taxes....................... $(66,911) $ (4,717) $ 290,613 $ (57,907) $ 161,078
======== ========== ========== ========= ===========
Accounts and notes receivable, net.... $ 70,282 $ 194,051 $ 70,427 $ 1,486 $ 336,246
======== ========== ========== ========= ===========
Identifiable assets................... $576,966 $1,263,618 $ 531,737 $ 115,397 $ 2,487,718
======== ========== ========== ========= ===========
Depreciation, depletion, amortization
and lease impairment(1)............ $115,890 $ 75,554 $ 18,975 $ 3,545 $ 213,964
======== ========== ========== ========= ===========
Capital expenditures.................. $ 55,606 $ 42,234 $ 113,911 $ 6,685 $ 218,436
======== ========== ========== ========= ===========
1994:
Sales:
Unaffiliated customers............. $549,160 $1,981,444 $ 888,728 $ 178 $ 3,419,510
======== ========== ========== =========
Affiliates......................... $ -- $ -- $ 1,602 $ -- 1,602
======== ========== ========== =========
Inter-segment...................... $ 42,358 $ 154,965 $ 14,425 $ -- --
======== ========== ========== ========= -----------
$ 3,421,112
===========
Operating profit (loss)............... $(15,713) $ 42,473 $ 171,164 $ (16,953) $ 180,971
Interest and other income............. 12,307 4,771 (6,765) 5,674 15,987
Interest expense, net................. -- -- -- (44,601) (44,601)
-------- ---------- ---------- --------- -----------
Earnings (loss) before income
taxes....................... $ (3,406) $ 47,244 $ 164,399 $ (55,880) $ 152,357
======== ========== ========== ========= ===========
Accounts and notes receivable, net.... $ 68,198 $ 208,055 $ 73,058 $ 16,303 $ 365,614
======== ========== ========== ========= ===========
Identifiable assets................... $656,977 $1,307,181 $ 420,901 $ 108,803 $ 2,493,862
======== ========== ========== ========= ===========
Depreciation, depletion, amortization
and lease impairment............... $ 82,425 $ 80,471 $ 18,872 $ 4,193 $ 185,961
======== ========== ========== ========= ===========
Capital expenditures.................. $ 49,299 $ 48,817 $ 33,579 $ 4,686 $ 136,381
======== ========== ========== ========= ===========
</TABLE>
F-18
<PAGE> 40
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
CORPORATE
UPSTREAM DOWNSTREAM CHEMICALS AND OTHER CONSOLIDATED
-------- ---------- ---------- -------- ----------
<S> <C> <C> <C> <C> <C>
1993:
Sales:
Unaffiliated customers............. $519,810 $2,101,448 $ 793,372 $ 156 $ 3,414,786
======== ========== ========= =========
Affiliates......................... $ -- $ -- $ 1,437 $ -- 1,437
======== ========== ========= =========
Inter-segment...................... $ 45,570 $ 167,160 $ 5,491 $ -- --
======== ========== ========= ========= -----------
$ 3,416,223
===========
Operating profit (loss)............... $ 13,277 $ (8,329) $ 60,437 $ (17,919) $ 47,466
Interest and other income............. 107,872 (12) (6,713) 2,458 103,605
Interest expense, net................. -- -- -- (54,956) (54,956)
-------- ---------- --------- --------- -----------
Earnings (loss) before income
taxes....................... $121,149 $ (8,341) $ 53,724 $ (70,417) $ 96,115
======== ========== ========= ========= ===========
Accounts and notes receivable, net.... $ 88,038 $ 155,054 $ 49,398 $ 779 $ 293,269
======== ========== ========= ========= ===========
Identifiable assets................... $745,473 $1,260,463 $ 402,270 $ 103,147 $ 2,511,353
======== ========== ========= ========= ===========
Depreciation, depletion, amortization
and lease impairment............... $ 94,704 $ 79,347 $ 19,562 $ 4,728 $ 198,341
======== ========== ========= ========= ===========
Capital expenditures.................. $ 30,665 $ 86,233 $ 7,226 $ 1,348 $ 125,472
======== ========== ========= ========= ===========
</TABLE>
- ---------------
(1) During the fourth quarter of 1995, the Company adopted SFAS 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of." As a result, the Company recognized a
before-tax addition of $58,723,000 to depreciation, depletion and
amortization expense, of which $52,723,000 was related to its Upstream
business and $6,200,000 was related to its Downstream business. After tax,
the additional charge was $38,173,000 or $1.22 per share.
Consolidated totals are after elimination of inter-segment amounts.
Operating profit (loss) is sales less operating expenses and is substantially
all derived from domestic operations. Identifiable assets are those assets that
are used in the operations in each business segment.
Most customers are located in the South and Midwest regions of the United
States. No single customer accounted for more than 5% of sales in 1995, 1994 or
1993, and no account receivable from any customer exceeded 5% of consolidated
stockholders' equity at December 31, 1995, 1994 or 1993.
F-19
<PAGE> 41
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(15) FINA OIL AND CHEMICAL COMPANY AND CONSOLIDATED SUBSIDIARIES SUMMARY
FINANCIAL DATA
Fina Oil and Chemical Company ("FOCC"), a wholly-owned subsidiary of the
Company, is the main operating subsidiary of the Company whose principle lines
of business include crude oil and natural gas exploration and production;
petroleum products refining, supply and transportation and marketing; and
chemicals manufacturing and marketing. FOCC is proposing to issue senior debt
securities, which will be unconditionally guaranteed on an unsecured basis by
the Company. Following is summary consolidated financial data for FOCC (in
thousands).
<TABLE>
<CAPTION>
1995 1994
----------- -----------
<S> <C> <C>
At December 31:
Current assets............................. $ 638,835 $ 645,045
Noncurrent assets.......................... 1,762,093 1,763,379
Current liabilities........................ (493,078) (538,004)
Noncurrent liabilities(1).................. (1,794,887) (1,651,716)
---------- ----------
Net Assets......................... $ 112,963 $ 218,704
========== ==========
</TABLE>
<TABLE>
<CAPTION>
1995 1994 1993
----------- ----------- ----------
<S> <C> <C> <C>
Year ended December 31:
Sales and other operating revenues......... $ 3,363,505 $ 3,013,957 $3,099,097
========== ========== ==========
Gross profit(2)............................ $ 303,166 $ 259,411 $ 156,528
========== ========== ==========
Net earnings(3)............................ $ 99,074 $ 97,662 $ 73,304
========== ========== ==========
</TABLE>
- ---------------
(1) Includes intercompany accounts receivable and payable.
(2) Gross profit is defined as sales and other operating revenues less cost of
raw materials and products purchased; direct operating expenses; taxes,
other than on income; and depreciation, depletion, amortization and lease
impairment.
(3) In 1995, the Company adopted SFAS 121 "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of," which
resulted in a before tax charge of $58,723,000 to gross profit. After tax,
the additional charge was $38,173,000.
F-20
<PAGE> 42
FINA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(16) QUARTERLY FINANCIAL DATA (UNAUDITED)
<TABLE>
<CAPTION>
QUARTER QUARTER QUARTER QUARTER
ENDED ENDED ENDED ENDED
MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
-------- -------- ------------ -----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
1995:
Sales and other operating revenues... $863,188 $965,352 $916,287 $ 861,810
======== ======== ======== =========
Gross profit(1) $ 87,568 $112,129 $105,012 $ 9,199
======== ======== ======== =========
Net earnings (loss)(2)............... $ 33,490 $ 41,786 $ 44,973 $ (15,824)
======== ======== ======== =========
Earnings (loss) per common share..... $ 1.07 $ 1.34 $ 1.44 $ (.50)
======== ======== ======== =========
1994:
Sales and other operating revenues... $777,450 $838,081 $918,237 $ 887,344
======== ======== ======== =========
Gross profit(1)...................... $ 68,365 $ 49,908 $ 69,126 $ 79,782
======== ======== ======== =========
Net earnings......................... $ 25,017 $ 13,357 $ 27,973 $ 35,694
======== ======== ======== =========
Earnings per common share............ $ 1.60 $ 0.86 $ 1.79 $ 2.29
======== ======== ======== =========
</TABLE>
- ---------------
(1) Gross profit is defined as sales and other operating revenues less cost of
raw materials and products purchased; direct operating expenses; taxes,
other than on income; and depreciation, depletion, amortization and lease
impairment.
(2) During the quarter ended December 31, 1995, the Company adopted SFAS 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of" which resulted in a before-tax addition of
$58,723,000 to depreciation, depletion and amortization expense. After tax,
the additional charge was $38,173,000 or $1.22 per share.
F-21
<PAGE> 43
FINA, INC. AND SUBSIDIARIES
SUPPLEMENTAL OIL AND GAS DATA -- (UNAUDITED)
The following tables set forth supplementary disclosures for oil and gas
producing activities in accordance with SFAS 69.
(A) CAPITALIZED COSTS
Capitalized costs relating to oil and gas producing activities and the
related amounts of accumulated depreciation, depletion, amortization and lease
impairment follow:
<TABLE>
<CAPTION>
DECEMBER 31
-----------------------------------
1995 1994 1993
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Proved oil and gas properties.................... $ 905,554 $ 906,738 $1,012,024
Unproved oil and gas properties.................. 232,085 254,998 246,607
--------- --------- ----------
1,137,639 1,161,736 1,258,631
Less accumulated depreciation, depletion,
amortization and lease impairment.............. 640,223 585,138 613,120
--------- --------- ----------
Net capitalized costs............................ $ 497,416 $ 576,598 $ 645,511
========= ========= ==========
</TABLE>
(B) COSTS INCURRED
A summary of costs incurred in oil and gas property acquisition,
exploration and development activities (both capitalized and charged to expense)
for the three years ended December 31, 1995 follows:
<TABLE>
<CAPTION>
1995 1994 1993
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Acquisition of unproved properties...................... $ 5,304 $ 2,784 $ 1,181
======= ======= =======
Acquisition of proved properties........................ $ 1,091 $ 237 $ 482
======= ======= =======
Exploration costs....................................... $46,463 $32,674 $21,476
======= ======= =======
Development costs....................................... $29,992 $28,314 $23,869
======= ======= =======
</TABLE>
The above costs were incurred in the United States.
F-22
<PAGE> 44
FINA, INC. AND SUBSIDIARIES
SUPPLEMENTAL OIL AND GAS DATA -- (UNAUDITED) -- (CONTINUED)
(C) RESULTS OF OPERATIONS FOR PRODUCING ACTIVITIES
The following table presents the results of operations for oil and gas
producing activities for the three years ended December 31, 1995.
<TABLE>
<CAPTION>
1995 1994 1993
--------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Revenues:
Sales............................................ $ 119,772 $139,532 $ 209,753
Transfers........................................ 17,710 17,205 17,751
--------- -------- ---------
Total.................................... 137,482 156,737 227,504
Production costs................................... (51,922) (66,374) (83,237)
Exploration costs.................................. (26,662) (14,173) (15,632)
Depreciation, depletion, amortization, lease
impairment and abandonments...................... (116,592) (86,236) (106,140)
--------- -------- ---------
(57,694) (10,046) 22,495
Income tax benefit (expense)....................... 22,473 5,604 (480)
--------- -------- ---------
Results of operations from producing activities,
excluding interest costs......................... $ (35,221) $ (4,442) $ 22,015
========= ======== =========
</TABLE>
(D) RESERVE QUANTITY INFORMATION
The following table presents the Company's estimate of its proved oil and
gas reserves, all of which are located in the United States. The Company
emphasizes that reserve estimates are inherently imprecise and that estimates of
new discoveries are more imprecise than those of producing oil and gas
properties. Accordingly, the estimates are expected to change as future
information becomes available. The estimates have been prepared by the Company's
internal petroleum reservoir engineers.
<TABLE>
<CAPTION>
1995 1994 1993
----------------- ----------------- ------------------
OIL GAS OIL GAS OIL GAS
------ ------- ------ ------- ------ --------
<S> <C> <C> <C> <C> <C> <C>
Proved developed and undeveloped
reserves:
Beginning of year................... 31,699 348,204 36,090 439,066 42,479 655,649
Revisions of previous estimates..... 1,236 283 2,571 (40,376) (6,405) (23,294)
Purchases of minerals in place...... 48 55 57 6 419 1,705
Sales of minerals in place.......... (2,052) (11,729) (4,756) (28,780) (2,803) (156,418)
Extensions and discoveries.......... 7,390 29,528 2,293 31,152 8,305 29,348
Production.......................... (3,749) (52,119) (4,556) (52,864) (5,905) (67,924)
------ ------- ------ ------- ------ -------
End of year......................... 34,572 314,222 31,699 348,204 36,090 439,066
====== ======= ====== ======= ====== =======
Proved developed reserves:
Beginning of year................... 19,986 237,270 23,644 306,991 34,892 468,310
====== ======= ====== ======= ====== =======
End of year......................... 18,814 228,548 19,986 237,270 23,644 306,991
====== ======= ====== ======= ====== =======
</TABLE>
Oil reserves, which include condensate and natural gas liquids, are stated
in thousands of barrels and gas reserves are stated in millions of cubic feet.
F-23
<PAGE> 45
FINA, INC. AND SUBSIDIARIES
SUPPLEMENTAL OIL AND GAS DATA -- (UNAUDITED) -- (CONTINUED)
(E) STANDARDIZED MEASURE OF DISCOUNTED FUTURE NET CASH FLOWS AND CHANGES
THEREIN RELATING TO PROVED OIL AND GAS RESERVES
The following table, which presents a standardized measure of discounted
future net cash flows and changes therein relating to proved oil and gas
reserves, is presented pursuant to Statement of Financial Accounting Standards
No. 69. In computing this data, assumptions other than those required by the
Financial Accounting Standards Board could produce different results.
Accordingly, the data should not be construed as representative of the fair
market value of the Company's proved oil and gas reserves.
Future cash inflows were computed by applying year end prices of oil and
gas relating to proved reserves to the estimated year end quantities of those
reserves. Future price changes were considered only to the extent provided by
contractual arrangements in existence at year end. Future development and
production costs were computed by estimating the expenditures to be incurred in
developing and producing the proved oil and gas reserves at the end of the year,
based on year end costs. Future income tax expenses were computed by applying
the year end statutory tax rate adjusted for tax credits, with consideration of
future tax rates already legislated, to the future pretax net cash flows
relating to proved oil and gas reserves, less the tax basis of the properties
involved. The standardized measure of discounted future cash flows represents
the present value of estimated future net cash flows using a discount rate of
10% a year.
<TABLE>
<CAPTION>
DECEMBER 31
-------------------------------------
1995 1994 1993
---------- --------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Future cash inflows.............................. $1,202,555 $ 977,811 $1,330,387
Future production and development costs.......... (476,786) (422,277) (484,783)
Future income tax expenses....................... (117,188) (45,859) (121,028)
---------- --------- ----------
Future net cash flows............................ 608,581 509,675 724,576
10% annual discount for estimated timing of
cash flows..................................... (244,862) (191,981) (277,041)
---------- --------- ----------
Standardized measure of discounted future net
cash flows..................................... $ 363,719 $ 317,694 $ 447,535
========== ========= ==========
Beginning of year................................ $ 317,694 $ 447,535 $ 668,331
Changes resulting from:
Sales and transfers of oil and gas produced,
net of production costs..................... (85,560) (90,363) (144,267)
Extensions and discoveries..................... 56,806 26,246 51,053
Purchases of minerals in place................. 353 350 3,555
Sales of minerals in place..................... (22,829) (48,157) (154,814)
Previously estimated development costs incurred
during the year............................. 43,600 25,625 26,337
Revisions of previous quantities............... 17,186 (4,880) (49,494)
Accretion of discount.......................... 34,626 52,227 82,980
Net change in income taxes..................... (41,459) 46,163 86,754
Net changes in prices and costs................ 43,302 (137,052) (122,900)
---------- --------- ----------
End of year...................................... $ 363,719 $ 317,694 $ 447,535
========== ========= ==========
</TABLE>
F-24
<PAGE> 46
FINA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
MARCH 31, 1996
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Current assets:
Cash and cash equivalents.................................................... $ 4,470
Accounts and notes receivable................................................ 418,918
Inventories.................................................................. 305,358
Prepaid expenses and other current assets.................................... 48,142
----------
Total current assets................................................. 776,888
----------
Net property, plant, and equipment, at cost.................................... 1,655,961
Other noncurrent assets........................................................ 150,072
----------
$2,582,921
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short term obligations....................................................... $ 24,000
Current installments of long term debt and lease obligations................. 35,720
Accounts payable and accrued liabilities..................................... 560,740
----------
Total current liabilities............................................ 620,460
----------
Long term debt, excluding current installments................................. 494,899
Other deferred credits and liabilities......................................... 270,039
Stockholders' equity:
Preferred stock of $1 par value. Authorized 4,000,000 shares; none issued.... --
Class A common stock of $.50 par value. Authorized 38,000,000 shares; issued
and outstanding 29,212,472 shares......................................... 14,606
Class B common stock of $.50 par value. Authorized and issued 2,000,000
shares.................................................................... 1,000
Additional paid-in capital................................................... 450,770
Retained earnings............................................................ 731,147
----------
Total stockholders' equity........................................... 1,197,523
Commitments and contingencies
----------
$2,582,921
==========
</TABLE>
See accompanying notes to consolidated financial statements.
F-25
<PAGE> 47
FINA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
1996 1995
-------- --------
<S> <C> <C>
Revenues:
Sales and other operating revenues................................... $965,115 $863,188
Interest and other, net.............................................. (2,715) (1,850)
-------- --------
962,400 861,338
-------- --------
Costs and expenses:
Cost of raw materials and products purchased......................... 724,868 636,774
Direct operating expenses............................................ 93,791 88,490
Selling, general, and administrative expenses........................ 20,673 20,806
Taxes, other than on income.......................................... 11,974 11,911
Dry holes and abandonments........................................... 4,115 1,516
Depreciation, depletion, amortization, and lease impairment.......... 39,683 38,445
Interest charges, net................................................ 9,738 11,958
-------- --------
904,842 809,900
-------- --------
Earnings before income taxes................................. 57,558 51,438
Income taxes........................................................... 19,536 17,948
-------- --------
Net earnings................................................. $ 38,022 $ 33,490
======== ========
Earnings per common share.............................................. $ 1.22 $ 1.07
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-26
<PAGE> 48
FINA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
THREE MONTHS ENDED MARCH 31, 1996 AND 1995
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
1996 1995
-------- --------
<S> <C> <C>
Cash flows provided by operating activities............................ $ 47,007 $ 31,032
Cash flows from investing activities:
Additions to property, plant and equipment........................... (38,588) (22,398)
Proceeds from sales of assets........................................ 7,207 5,609
Investments in and advances to affiliates............................ (570) (1,406)
-------- --------
Net cash used in investing activities........................ (31,951) (18,195)
-------- --------
Cash flows from financing activities:
Payments of long term debt and lease obligations..................... (3,301) (3,107)
Net change in short term obligations................................. 4,000 5,000
Issuance of common stock............................................. 171 14
Dividends paid....................................................... (18,727) (15,595)
-------- --------
Net cash used in financing activities........................ (17,857) (13,688)
-------- --------
Net decrease in cash and cash equivalents.............................. (2,801) (851)
Cash and cash equivalents at beginning of period....................... 7,271 3,533
-------- --------
Cash and cash equivalents at end of period............................. $ 4,470 $ 2,682
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-27
<PAGE> 49
FINA, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1996
(UNAUDITED)
(1) The information furnished reflects all adjustments which are, in the opinion
of management, necessary to a fair presentation of the results of the
interim periods presented. The results of operations for the three months
ended March 31, 1996 are not necessarily indicative of the operating results
for the full fiscal year.
(2) Earnings per common share is based on the weighted average number of
outstanding shares. Shares issuable upon the exercise of stock options are
excluded from the computation since their effect is insignificant. The
weighted average number of outstanding shares was 31,209,997 and 31,189,604
for the three months ended March 31, 1996 and 1995, respectively.
(3) FINA, Inc. is contingently liable under pending lawsuits and other claims,
some of which involve substantial sums. Considering certain liabilities
which have been set up for the lawsuits and claims, and the difficulty in
determining the ultimate liability in some of these matters, internal
counsel is of the opinion that the amounts, if any, which ultimately might
be due in connection with such lawsuits and claims would not have a material
adverse effect upon the Company's consolidated financial condition.
(4) These financial statements are for interim periods and do not include all
detail normally provided in annual financial statements and should be read
in conjunction with the consolidated financial statements of FINA, Inc. and
subsidiaries as of December 31, 1995 and 1994 and for each of the years in
the three-year period ended December 31, 1995 included elsewhere herein.
(5) Fina Oil and Chemical Company ("FOCC"), a wholly-owned subsidiary of FINA,
Inc., is the main operating subsidiary of the Company whose principle lines
of business include crude oil and natural gas exploration and production;
petroleum products refining, supply and transportation and marketing; and
chemicals manufacturing and marketing. FOCC is proposing to issue senior
debt securities which will be unconditionally guaranteed on an unsecured
basis by the Company. Following is summary consolidated financial data for
FOCC (in thousands).
<TABLE>
<CAPTION>
1996
-----------
<S> <C> <C>
At March 31:
Current assets............................................ $ 730,682
Noncurrent assets......................................... 1,769,468
Current liabilities....................................... (577,088)
Noncurrent liabilities(1)................................. (1,788,772)
-----------
Net Assets........................................ $ 134,290
===========
<CAPTION>
1996 1995
----------- --------
<S> <C> <C>
Three months ended March 31:
Sales and other operating revenues........................ $ 857,808 $806,157
=========== ========
Gross profit(2)........................................... $ 77,534 $ 85,139
=========== ========
Net earnings.............................................. $ 27,120 $ 32,804
=========== ========
</TABLE>
- ---------------
(1) Includes intercompany accounts receivable and payable.
(2) Gross profit is defined as sales and other operating revenues less cost of
raw materials and products purchased, direct operating expenses; taxes,
other than on income; and depreciation, depletion, amortization and lease
impairment.
F-28
<PAGE> 50
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY, FINA OR ANY UNDERWRITER. THIS PROSPECTUS
SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR FINA SINCE SUCH DATE.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Use of Proceeds....................... S-3
Capitalization........................ S-3
[Recent Developments.................. S-3]
Description of [Senior Debt
Securities]......................... S-3
Underwriting.......................... S-4
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 3
The Guarantor......................... 3
Use of Proceeds....................... 4
Ratio of Earnings to Fixed Charges.... 4
Summary of Selected Financial Data.... 5
Description of Senior Debt
Securities.......................... 7
Plan of Distribution.................. 14
Legal Opinions........................ 15
Experts............................... 15
Index to Consolidated Financial
Statements of FINA, Inc............. F-1
</TABLE>
---------------------
UNTIL , 1996 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE [SENIOR DEBT SECURITIES], WHETHER OR NOT
PARTICIPATING IN THE DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS AND
PROSPECTUS SUPPLEMENT. THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO
DELIVER A PROSPECTUS AND PROSPECTUS SUPPLEMENT WHEN ACTING AS UNDERWRITER AND
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$
FINA OIL AND CHEMICAL
COMPANY
[SENIOR DEBT SECURITIES]
UNCONDITIONALLY AND IRREVOCABLY
GUARANTEED BY
FINA, INC.
---------------------
PROSPECTUS SUPPLEMENT
---------------------
[UNDERWRITERS]
[DATE]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 51
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee.................................................... $ 43,103.50
Trustee's Fees and Expenses (including legal fees)...................... 17,000.00
Accounting Fees and Expenses............................................ 20,000.00
Legal Fees and Expenses................................................. 75,000.00
Printing Expenses....................................................... 42,000.00
Blue Sky Fees and Expenses (including legal fees)....................... 10,000.00
Rating Agency Fees...................................................... 100,000.00
Miscellaneous........................................................... 10,000.00
-----------
Total......................................................... $317,103.50
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrants, being Delaware corporations, are empowered by Section 145
of the Delaware General Corporation Law, subject to the procedures and
limitations stated therein, to indemnify any person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any threatened, pending or
completed action, suit or proceeding in which such person is made a party by
reason of his being or having been a director, officer, employee or agent of the
respective Registrant. The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise. The respective bylaws of each Registrant
provide for indemnification by each Registrant of its respective directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law. FINA maintains an insurance policy providing for indemnification of
officers and directors of FINA and its subsidiaries, including FOCC, against
liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions.
ITEM 16. EXHIBITS
The information required by this Item 16 is set forth in the Index to
Exhibits accompanying this Registration Statement.
ITEM 17. UNDERTAKINGS
(a) Rule 415 offering.
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registrant Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
II-1
<PAGE> 52
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by either of the Registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filings incorporating subsequent Exchange Act documents by reference.
FINA, Inc. hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of said Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Acceleration of effectiveness.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
either Registrant pursuant to the provisions of Item 15, or otherwise, each of
the Registrants has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by either
Registrant of expenses incurred or paid by a director, officer or controlling
person of such Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
<PAGE> 53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, as of June 26, 1996.
FINA OIL AND CHEMICAL COMPANY
By: /s/ RON W. HADDOCK
Ron W. Haddock
President and CEO, Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes Ron W. Haddock, Yves Bercy and Cullen M. Godfrey, or any
of them, as attorney-in-fact to execute in the name and on behalf of each such
person individually and in each capacity stated below and to file any amendments
to this Registration Statement, including any and all pre-effective and
post-effective amendments, with all exhibits thereto and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURES AND TITLES DATE
- ------------------------------------------------- ----------------------
<S> <C>
/s/ PAUL D. June 26, 1996
MEEK
- -------------------------------------------------
Paul D. Meek
Chairman of the Board, Director
/s/ RON W. HADDOCK June 26, 1996
- -------------------------------------------------
Ron W. Haddock
President and CEO, Director
(Principal Executive Officer)
/s/ YVES June 26, 1996
BERCY
- -------------------------------------------------
Yves Bercy
Vice President, Chief Financial Officer and
Treasurer
(Principal Financial and Accounting Officer)
/s/ CULLEN M. GODFREY June 26, 1996
- -------------------------------------------------
Cullen M. Godfrey
Senior Vice President and General Counsel,
Director
</TABLE>
II-3
<PAGE> 54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, as of June 26, 1996.
FINA, INC.
By: /s/ CULLEN M. GODFREY
------------------------------------
Cullen M. Godfrey
Senior Vice President, Secretary
and General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes Ron W. Haddock, Yves Bercy and Cullen M. Godfrey, or any
of them, as attorney-in-fact to execute in the name and on behalf of each such
person individually and in each capacity stated below and to file any amendments
to this Registration Statement, including any and all pre-effective and
post-effective amendments, with all exhibits thereto and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURES AND TITLES DATE
- ------------------------------------------------- ----------------------
<S> <C>
/s/ PAUL D. MEEK June 26, 1996
- -------------------------------------------------
Paul D. Meek
Chairman of the Board, Director
/s/ RON W. HADDOCK June 26, 1996
- -------------------------------------------------
Ron W. Haddock
President and CEO, Director
(Principal Executive Officer)
/s/ FRANCOIS CORNELIS June 26, 1996
- -------------------------------------------------
Francois Cornelis
Director
/s/ AXEL DE BROQUEVILLE June 26, 1996
- -------------------------------------------------
Axel De Broqueville
Director
/s/ MICHEL MARC DELCOMMUNE June 26, 1996
- -------------------------------------------------
Michel Marc Delcommune
Director
/s/ ERNESTO MARCOS June 26, 1996
- -------------------------------------------------
Ernesto Marcos
Director
/s/ JOSE G. REBELO June 26, 1996
- -------------------------------------------------
Jose G. Rebelo
Director
/s/ PATRICIA M. WALLINGTON June 26, 1996
- -------------------------------------------------
Patricia M. Wallington
Director
/s/ YVES BERCY June 26, 1996
- -------------------------------------------------
Yves Bercy
Vice President, Chief Financial Officer and
Treasurer
(Principal Financial and Accounting Officer)
</TABLE>
II-4
<PAGE> 55
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER PAGE
- ----------------------------------------------------------------------------------- ------------
<S> <C> <C>
(1a) Form of Underwriting Agreement, including form of Pricing Agreement
(4a1) Certificate of Incorporation of the Company
(4a2) Certificate of Incorporation of FINA (filed as Exhibit 3a to FINA's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, and
incorporated herein by reference)
(4b1) Bylaws of the Company
(4b2) Bylaws of FINA (filed as Exhibit 3b to FINA's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995, and incorporated herein by
reference)
(4c) Form of Indenture with respect to Senior Debt Securities ("Indenture"),
including form of Senior Debt Security, to be entered into among the
Company, as issuer, FINA, Inc., as guarantor, and Texas Commerce Bank
National Association, as Trustee
(4d) Form of Indenture Supplement to Indenture
(5a) Opinion of Cullen M. Godfrey, Esq.
(12a) Computation of Ratio of Earnings to Fixed Charges
(23a) Consent of KPMG Peat Marwick LLP
(23b) Consent of Cullen M. Godfrey, Esq. (contained in his opinion filed as
Exhibit (5a)
(24a) Power of attorney of certain signatories (contained on signature pages
included in Part II of the Registration Statement)
(25a) Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, with respect to Trustee for Senior Debt
Securities
(99a) Form of Prospectus Supplement (contained in Part I of this Registration
Statement)
</TABLE>
<PAGE> 1
[Form of June 26, 1996] EXHIBIT (1a)
FINA OIL AND CHEMICAL COMPANY
Senior Debt Securities
UNDERWRITING AGREEMENT
__________________________, 199___
To the Representatives of the
several Underwriters named
in the respective Pricing
Agreements hereinafter
described.
Dear Sirs:
From time to time Fina Oil and Chemical Company, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein), certain of the Company's senior debt securities
as guaranteed by FINA, Inc., a Delaware corporation (the "Guarantor"),
(collectively, the "Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The term and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you, designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto, will act as representatives (the
"Representatives"). The term "Representative" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement (this "Agreement") shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities. The obligation of the Company
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase
<PAGE> 2
price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement (File No. 333-______________)
in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission") in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, to the Representatives for
each of the other Underwriters, and such registration statement in
such form has been declared effective by the Commission and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement being hereinafter called a "Preliminary
Prospectus;" the various parts of such registration statement,
including all exhibits thereto (other than the Statement of
Eligibility Under the Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee, on Form T-1), each as amended, at the
time such part became effective, being hereinafter collectively called
the "Registration Statement;" the prospectus relating to the
Securities and the prospectus supplement relating to any particular
issuance of Designated Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement (which prospectus supplement
shall be in all substantive respects in the form furnished to the
Representatives, except to the extent the Representatives otherwise
agree), being hereinafter collectively called the "Prospectus;" any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act of 1933, as amended (the "Act"), as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such
amendment or supplement; and any reference to the Prospectus, as
amended or supplemented, shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is first filed, or transmitted for
filing, with the Commission pursuant to Rule 424 under the Act,
including any documents incorporated by reference therein as of the
date of such filing or transmission);
-2-
<PAGE> 3
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder and none of such
documents contained an untrue statement of material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(c) Each part of the Registration Statement and the
Prospectus conforms, and any amendments or supplements to the
Registration Statement or the Prospectus will conform, on the date of
filing thereof with the Commission, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), as applicable, and the rules and
regulations of the Commission thereunder; the Registration Statement
and any amendment thereto, as of the applicable effective date, did
not or will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus and any
supplement thereto, as of the applicable filing date, did not or will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of an Underwriter of Designated Securities expressly for use
in the Prospectus, as amended or supplemented, relating to such
Securities;
(d) Neither the Guarantor, the Company nor any of their
respective subsidiaries has sustained since the date of the latest
audited consolidated financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, resulting in a material adverse
effect on the business, assets, financial position or prospects of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth or contemplated in the
Prospectus: (i) there has not been any material change in the capital
stock or long-term debt of the Guarantor, the Company or any of their
respective subsidiaries, except for the Company's re- classification
from time to time of its short-term indebtedness to long-term
indebtedness and of its long-term indebtedness to short-term
indebtedness; (ii) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the business, assets, financial position or prospects of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; (iii) no event has occurred that would
result in a material write-down in assets; (iv) there have been no
material transactions entered into
-3-
<PAGE> 4
by the Guarantor or the Company, other than those publicly disclosed
or in the ordinary course of business; (v) neither the Guarantor nor
the Company has repurchased any of its outstanding capital stock
except as set forth in or contemplated by the Prospectus; and (vi)
there have been no dividends or distributions of any kind declared,
paid or made by the Guarantor or the Company in respect of its capital
stock except for regular cash dividends paid in the ordinary course of
business;
(e) the Guarantor, the Company and their respective
subsidiaries have indefeasible title in fee simple to all real
property and indefeasible title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as are
not material to the business of the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole; and any real property and buildings held under lease by the
Guarantor, the Company and their respective subsidiaries are held by
them under leases that are valid, subsisting and in full force and
effect, with such exceptions as are not material to the business of
the Guarantor and its subsidiaries taken as a whole, or the Company
and its subsidiaries taken as a whole;
(f) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, and each subsidiary of the
Guarantor and the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; each of the Guarantor, the Company and
their respective subsidiaries has full power and authority (corporate
and other) to own its properties and conduct its business as
described, or incorporated by reference, in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(g) Each of the Guarantor and the Company has an
authorized capitalization as set forth, or as incorporated by
reference, in the Prospectus, and all of the outstanding shares of
capital stock of the Guarantor and the Company have been duly and
validly authorized and issued and are fully paid and nonassessable;
and all of the outstanding shares of capital stock of each subsidiary
of the Guarantor and the Company have been duly and validly authorized
and issued, are fully paid and nonassessable and are owned directly or
indirectly by the Guarantor or the Company, free and clear of all
liens, encumbrances, equities or claims affecting transferability or
voting except as set forth in the Prospectus;
(h) The Securities have been duly authorized, and, when
Designated Securities are executed, authenticated, issued and
delivered against payment therefor pursuant to this Agreement, the
Indenture and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture, which has been or will be incorporated by reference as
an exhibit
-4-
<PAGE> 5
to the Registration Statement; the guarantee of the Guarantor with
respect to the securities set forth in Article Three of the Indenture
has been duly authorized, and, when the statement of the Guarantor's
guarantee with respect to the Designated Securities is endorsed on the
certificates representing such Designated Securities in the manner
specified in the Indenture, and when such Designated Securities are
themselves executed, authenticated, issued and delivered against
payment therefor pursuant to this Agreement, the Indenture and the
Pricing Agreement with respect to such Designated Securities, such
statement of the Guarantor's guarantee will have been duly endorsed
thereon and the guarantee will constitute the valid and legally
binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general
equity principles; the Indenture has been duly authorized, executed
and delivered by the Guarantor and the Company and constitutes a valid
and legally binding instrument, enforceable against the Company and,
to the extent specified in Article Three thereof, the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; at the Time of Delivery (as defined in Section 4 hereof),
the Indenture will have been duly qualified under the Trust Indenture
Act; and the Securities and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus;
(i) The issue and sale of the Securities and the
compliance by the Guarantor and the Company with all of the provisions
of the Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Guarantor, the Company or any of their
respective subsidiaries is a party or by which the Guarantor, the
Company or any of their respective subsidiaries is bound or to which
any of the property or assets of the Guarantor, the Company or any of
their respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of
Incorporation, as amended or restated, or the Bylaws of the Guarantor
or the Company or any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor, the Company or any of their respective subsidiaries or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issuance and sale of
the Securities or the consummation by the Guarantor or the Company of
the other transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Guarantor, the Company or any of their respective
subsidiaries is a party or of which any property of the Guarantor, the
Company or any of their respective subsidiaries is the subject that,
if determined adversely to the
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<PAGE> 6
Guarantor, the Company or any of their respective subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Guarantor and its subsidiaries taken as a whole, or
the Company and its subsidiaries taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(k) KPMG Peat Marwick LLP, who have certified certain
consolidated financial statements of the Guarantor and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(l) The Company has no knowledge of any default in any
material obligation to be performed by any party to any agreement to
which the Guarantor, the Company or any of their respective
subsidiaries is a party, which default or defaults in the aggregate
would have a material adverse effect upon the business, assets,
financial position, or prospects of the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole;
(m) The consolidated financial statements of the
Guarantor and its subsidiaries, including accompanying notes, included
or incorporated by reference in the Prospectus, comply in all material
respects with the requirements of the Act and fairly present the
consolidated financial position and the consolidated results of the
operations of the Guarantor and its subsidiaries at the respective
dates and for the respective periods to which they apply, and such
financial statements have been prepared in conformity with generally
accepted accounting principles, consistently applied throughout the
periods involved except as may be expressly stated in the notes
thereto. The summary financial information of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
complies in all material respects with the requirements of the Act.
The financial information and statistical data set forth in the
Prospectus under the caption "Summary of Selected Financial Data" are
fairly presented and prepared on a basis consistent with such
consolidated financial statements, such summary financial information
or the books and records of the Guarantor or the Company, as the case
may be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Guarantor,
the Company and each of their respective subsidiaries have all
necessary licenses, certificates, permits, authorizations, approvals,
rights and orders of and from all governmental agencies or bodies
having jurisdiction over the Guarantor, the Company or any of their
respective subsidiaries to own their respective properties and conduct
their respective businesses as described in the Prospectus, the
failure to possess or the failure to operate in compliance with which
would have a material adverse effect on the business of the Guarantor
and its subsidiaries taken as a whole, or the Company and its
subsidiaries taken as a whole, and neither the Guarantor nor the
Company has received notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the business,
assets, financial position or prospects of the Guarantor and its
subsidiaries taken as a whole, or the Company and its subsidiaries
taken as a whole;
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<PAGE> 7
(o) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, and the Pricing Agreement with respect to
the Designated Securities, when executed and delivered by the Company,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject,
in each case, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights, and to general equity principles, and
except to the extent that rights of indemnification hereunder may be
limited by applicable laws or equity principles;
(p) Except as described in the Prospectus, each of the
Guarantor, the Company and their respective subsidiaries owns or
possesses all of the patents, trademarks, service marks, trade names,
copyrights and licenses and rights with respect to the foregoing,
necessary for the present conduct of its business, without any known
conflict with the rights of others, the result of which conflict would
materially and adversely affect the business, assets, financial
position or prospects of the Guarantor and its subsidiaries taken as a
whole, or the Company and its subsidiaries taken as a whole;
(q) There are no contracts, indentures, mortgages, loan
agreements, notes, bonds, debentures, other evidences of indebtedness,
leases or other agreements or instruments of the Guarantor or the
Company of a character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or referred to or
filed as required;
(r) No labor disturbance exists with the employees of the
Guarantor, the Company or any of their respective subsidiaries, or, to
the best of the Company's knowledge, is imminent, that would result in
a material adverse effect upon the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole, and the Company has not received notice of any existing or
imminent labor disturbance by the employees of any of its or the
Guarantor's principal suppliers, that might reasonably be expected to
materially adversely affect the business, assets, financial position
or prospects of the Guarantor and its subsidiaries taken as a whole,
or the Company and its subsidiaries taken as a whole;
(s) The conditions to the use of a registration statement
on Form S-3 under the Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Guarantor, the
Company and the Registration Statement and Prospectus;
(t) Except as provided in the Prospectus, the Company and
the Guarantor (i) do not have any material lending or other
relationships with any banks or lending affiliates of the Underwriters
and (ii) do not intend to use any of the proceeds from the sale of the
Designated Securities hereunder to repay any outstanding debt owed to
any affiliates of the Underwriters; and
(u) Except as provided in the Prospectus, there are no
persons with registration or other similar rights either to have any
securities registered pursuant to the Registration Statement or to
have any securities otherwise registered by the Company under the Act
in connection with or as a result of the execution, delivery and
performance of this Agreement.
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<PAGE> 8
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive or book-entry
form, as specified in the Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor (by wire transfer of immediately available funds to
such bank account or accounts as may be specified by the Company) to the
Company at the time and date of delivery of such Securities or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date being called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To make no further amendment or any supplement to the
Registration Statement or Prospectus, as amended or supplemented,
after the date of the Pricing Agreement relating to such Securities
and prior to the Time of Delivery of such Securities that shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or become effective or any supplement to the Prospectus or any amended
Prospectus has been filed, or transmitted for filing, and to furnish
you with copies thereof; to file, and to cause the Guarantor to file,
promptly all reports and any definitive proxy or information
statements required to be filed by the Guarantor or the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities; and during
such same period to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
or Prospectus, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided that, in
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<PAGE> 9
connection therewith, the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus, as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if, for any other reason, it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such compliance;
(d) To make, and to cause the Guarantor to make,
generally available to its security holders as soon as practicable,
but in any event not later than eighteen months after the effective
date of the Registration Statement and of the post-effective amendment
thereto, hereinafter referred to, an earning statement of the
Guarantor and its subsidiaries and of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including,
at the option of the Guarantor and the Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company that mature more than one year
after such Time of Delivery and that are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives;
(f) To furnish to the holders of the Securities as soon
as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Guarantor and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement) condensed consolidated
financial information of the Guarantor and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of two years from the effective date
of the Registration Statement, to furnish to the Representatives
copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to the Representatives (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the
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<PAGE> 10
Commission or any national securities exchange on which the Securities
or any class of securities of the Guarantor or the Company is listed
other than registration statements filed under the Act; and (ii) such
additional information concerning the business and financial condition
of the Guarantor or the Company as the Representatives may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Guarantor and its
subsidiaries or the Company and its subsidiaries, as applicable, are
consolidated in reports furnished to their stockholders generally or
to the Commission), provided such information is prepared in the
ordinary course of business and is not otherwise confidential; and
further provided that the foregoing restriction on access to
information shall not prohibit the Representatives' access to such
information necessary for the defense of any litigation threatened or
filed against the Underwriters relating to this Agreement and the
transactions contemplated hereby; and
(h) to apply in the manner described under "Use of
Proceeds" in the Prospectus, the proceeds it receives from the sale of
the Securities.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Pricing Agreement, the
Indenture, any Blue Sky or legal investment memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel in
connection with such qualification and in connection with any Blue Sky or legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to any required review, if
any, by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of the trustee designated in the Indenture (the
"Trustee") and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
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<PAGE> 11
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) ____________________, counsel for the Underwriters,
shall have furnished to the Representatives such opinion as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Cullen M. Godfrey, Vice President, General Counsel
and Secretary of the Guarantor and Vice President and General Counsel
of the Company (as to (i) through (vi) and (ix), (xii) and (xiii)
below) and Thompson & Knight, A Professional Corporation, special
counsel for the Guarantor and the Company (as to (vii), (viii), (x),
(xi) and (xiii) below), shall have furnished to the Representatives
their respective written opinions, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) Each of the Guarantor and the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, as amended or supplemented;
(ii) Each of the Guarantor and the Company has
an authorized capitalization as set forth in the Prospectus,
as amended or supplemented, and all of the outstanding shares
of capital stock of the Guarantor and the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable;
(iii) Each of the Guarantor and the Company has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each jurisdiction in which the failure to so qualify would
have a material adverse effect upon the Guarantor and its
subsidiaries taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon
certificates issued by various state authorities as deemed
necessary by such counsel);
(iv) Each subsidiary of the Guarantor and the
Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its
jurisdiction of incorporation; each subsidiary of the
Guarantor and the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the Guarantor and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause upon certificates issued by various state
authorities as deemed necessary by such counsel); and all of
the outstanding shares of capital stock of each such
subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable, and (except for directors'
qualifying shares and except as otherwise set forth in the
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<PAGE> 12
Prospectus) are owned directly or indirectly by the Guarantor
or the Company, free and clear of all liens, encumbrances,
equities or claims affecting transferability or voting;
(v) To the best of such counsel's knowledge and
other than as set forth or contemplated, or incorporated by
reference, in the Prospectus, as amended or supplemented,
there are no legal or governmental proceedings pending to
which the Guarantor, the Company or any of their respective
subsidiaries is a party or of which any property of the
Guarantor, the Company or any of their respective subsidiaries
is the subject which, if determined adversely to the
Guarantor, the Company or any of their respective
subsidiaries, would individually or in the aggregate have a
material adverse effect on the business, assets, financial
position or prospects of the Guarantor and its subsidiaries
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company and each
constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance), and except to the extent that rights of
indemnification hereunder may be limited by applicable law or
equity principles;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company and, to the extent specified in Article Three of the
Indenture, of the Guarantor, and are entitled to the benefits
provided by the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance); and the Designated Securities and the Indenture
conform in all material respects to the descriptions thereof
in the Prospectus, as amended or supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
constitutes a valid and legally binding instrument enforceable
against the Company and, to the extent specified in Article
Three thereof, the Guarantor in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles that may limit the availability of certain
remedies (including specific performance); and the Indenture
has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Guarantor and the Company
with all of the provisions of the Designated Securities, the
Indenture, and this Agreement and the Pricing Agreement and
the consummation of the
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<PAGE> 13
transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Guarantor, the Company or
any of their respective subsidiaries is a party or by which
the Guarantor, the Company or any of their respective
subsidiaries is bound or to which any of the property or
assets of the Guarantor, the Company or any of their
respective subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation, as amended or restated, or the Bylaws of the
Guarantor or the Company or any statute or order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Guarantor, the Company or any of their
respective subsidiaries or any of their properties;
(x) To the best of such counsel's knowledge, no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Designated
Securities or the consummation of the other transactions
contemplated by this Agreement, the Pricing Agreement or the
Indenture, except such as have been obtained under the Act and
the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) The Registration Statement is effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
are pending or threatened under the Act;
(xii) The documents incorporated by reference in
the Prospectus, as amended or supplemented (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; such counsel has no reason to believe that any of
such documents, when they became effective or were so filed,
as the case may be (other than the financial statements,
statistical data and related schedules therein, as to which
such counsel need express no belief), contained, in the case
of a registration statement that became effective under the
Act, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein not misleading, and, in the case of other
documents that were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made when such documents were so filed, not
misleading; and such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into
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<PAGE> 14
the Prospectus or required to be described in the Registration
Statement or the Prospectus that are not filed or incorporated
by reference or described as required; and
(xiii) The Registration Statement and the
Prospectus (other than the financial statements, statistical
data and related schedules therein, as to which such counsel
need express no opinion), at the effective date thereof and at
the Time of Delivery for the Designated Securities complied as
to form in all material respects with the requirements of the
Act and the Trust Indenture Act, as applicable, and the rules
and regulations thereunder; such counsel has no reason to
believe that, as of the effective date of the Registration
Statement, the Registration Statement (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
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, as of the Time of Delivery, the Prospectus (or, as of
its date, any amendment or supplement thereto made by the
Company prior to the Time of Delivery) (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, KPMG Peat Marwick LLP, who have
certified the consolidated financial statements of the Guarantor
and its subsidiaries included or incorporated by reference in the
Registration Statement, shall have furnished to the Representatives
a letter, dated as of the date of such Pricing Agreement, and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto and, with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
reasonably satisfactory to the Representatives;
(e) (i) Neither the Guarantor, the Company nor any of
their respective subsidiaries shall have sustained since the date
of the latest audited consolidated financial statements included or
incorporated by reference in the Prospectus, as amended or
supplemented, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented, and
(ii) since the respective dates as of which information is given in
the Prospectus, as amended or supplemented, there shall not have
been any material change in the capital stock (other than through
exercise of employee stock options) or long-term debt of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole (other than borrowings and
repayments made in the ordinary course of business), or any change,
or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders'
equity or results of operations of the Guarantor, the Company and
their respective subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the reasonable judgment
of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
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<PAGE> 15
offering or delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus, as amended or
supplemented;
(f) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, (i) no downgrading shall
have occurred in the rating accorded the Guarantor's or the
Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Designated
Securities;
(g) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, there shall not have
occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such
exchanges or such market by any regulatory body or governmental
authority having jurisdiction, or trading in securities of the
Company or the Guarantor on any exchange or in the over-the-counter
market shall have been suspended; (ii) a general moratorium on
commercial banking activities in New York declared by either
federal or New York State authorities; or (iii) the engagement by
the United States in hostilities that have resulted in the
declaration, on or after the date of such Pricing Agreement, of a
national emergency or war if the effect of any such event specified
in this clause (iii), in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus, as amended or supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities, certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a)
and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls an Underwriter within the meaning of the Act (collectively referred to
for the purposes of this Section 8 as an Underwriter), and each affiliate (as
defined in Rule 144(a)(i) of the rules and regulations of the Commission under
the Act) of the Underwriter, its directors, officers and employees and each
person, if any, who controls such affiliates, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus, as amended or supplemented, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein
-15-
<PAGE> 16
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus, as amended or supplemented, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter expressly for use therein; provided
further, that the Company shall not be liable to the Underwriters under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company, its
officers and employees and each person, if any, who controls the Company within
the meaning of the Act (collectively referred to for the purposes of this
Section 8 as the Company), and each affiliate (as defined in Rule 144(a)(i) of
the rules and regulations of the Commission under the Act) of the Company, its
directors, officers and employees and each person, if any, who controls such
affiliates, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement or the Prospectus, as amended or
supplemented, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus, as amended or supplemented, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim with respect thereto is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and, after
notice from the indemnifying party to the such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable
-16-
<PAGE> 17
to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Underwriters shall have the
right to employ separate counsel to represent the Underwriters who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Underwriters under this Section 8, and in that event the fees
and expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of
such Designated Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions with respect thereto)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
-17-
<PAGE> 18
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities that it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter, the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives
notify the Company that they have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that, in the opinion
of the Representatives, may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives or the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each nondefaulting Underwriter to purchase the principal amount of Designated
Securities that such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities that such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described
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<PAGE> 19
in subsection (b) above to require nondefaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any nondefaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof; and further provided,
however, that notwithstanding the foregoing, the Company shall have no
obligation to reimburse the Underwriters as described above if Designated
Securities are not delivered by or on behalf of the Company as provided herein
because of the failure of counsel for the Underwriters to furnish the opinion
or opinions contemplated by Section 7(b) hereof, or because of the occurrence
of any of the events described in Section 7(f) or (g) hereof. The Company
shall not in any event be liable to any Underwriter for loss of anticipated
profits from the transactions contemplated by this Agreement, the Pricing
Agreement or otherwise.
12. In all dealings hereunder, the Representatives shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives, as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Vice President, Chief Financial Officer
and Treasurer; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered
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<PAGE> 20
mail to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any rights under or by virtue of this
Agreement or any Pricing Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
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<PAGE> 21
If the foregoing is in accordance with your understanding, please sign
and return to us two (2) counterparts hereof.
Very truly yours,
FINA OIL AND CHEMICAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date hereof
at Dallas, Texas:
[Name and address of Representative(s)]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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<PAGE> 22
ANNEX I
PRICING AGREEMENT
[Name and address of Representative(s)]
_________________, 199___
Dear Sirs:
Fina Oil and Chemical Company (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
__________________, 199__ (the "Underwriting Agreement"), to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Pricing Agreement to the
same extent as if such provisions had been set forth in full herein, and each
of the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus, as amended or supplemented,
relating to the Designated Securities that are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, transmitted for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two (2) counterparts hereof, and upon acceptance hereof by
each of the
<PAGE> 23
Underwriters, this Pricing Agreement and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this Pricing Agreement on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination, upon request, but without warranty on
the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
FINA OIL AND CHEMICAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date hereof
at Dallas, Texas:
[Name and address of Representative(s)]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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<PAGE> 24
SCHEDULE I
Principal
Amount of
Securities
to be
Underwriters Purchased
------------ ---------
$
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .$ =================
<PAGE> 25
SCHEDULE II
Title of Designated Securities:
____% [Senior Debt Securities] due ____________
Aggregate principal amount:
$__________________
Price to Public:
____ % of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________
Purchase Price by Underwriters:
____% of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture, dated as of ___________, 19___, between the Company and Texas
Commerce Bank National Association, as Trustee
Maturity:
Interest Rate:
_____%
Interest Payment Dates:
[months and dates]
-1-
<PAGE> 26
Redemption Provisions:
[Provisions for redemption]
Sinking Fund Provisions:
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $________ principal amount of Designated Securities on
_____________ in each of the years _____ through _______ at 100% of their
principal amount plus accrued interests] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional $__________________ principal amount of Designated Securities
in the years _______ through ______ at 100% of their principal amount
plus accrued interest].
Time of Delivery:
Closing Location:
Name and address of Representatives:
Designated Representatives:
Address for Notices, etc.:
Book-Entry Provisions:
[Provisions for book-entry registration
of the Designated Securities]
[Other terms]:
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<PAGE> 27
ANNEX II
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements
and any supplementary financial information and schedules examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information and/or condensed
financial statements derived from audited consolidated financial
statements of the Guarantor and its subsidiaries for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters
(the "Representatives");
(iii) In their opinion, the selected financial information with
respect to the consolidated results of operations and financial position
of the Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years that were included or incorporated by reference in the
Guarantor's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited consolidated financial
statements and other information referred to below, a reading of the
latest available interim consolidated financial statements of the
Guarantor and its subsidiaries, inspection of the minute books of the
Guarantor and its subsidiaries since the date of the latest audited
consolidated financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Guarantor and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of changes in financial position included or incorporated by
reference in the Guarantor's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to
form in all material
-1-
<PAGE> 28
respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance
sheets and consolidated statements of changes in financial
position included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Guarantor's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements that were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
or incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case that were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Guarantor and its subsidiaries, or any
decreases in consolidated net current assets or net assets or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest consolidated balance
sheet included or included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases that the Prospectus discloses have occurred or may
occur or that are described in such letter; and
(F) for the period from the date of the latest
consolidated financial statements included or incorporated by
reference in the Prospectus to the specified date referred
-2-
<PAGE> 29
to in clause (E), there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases that the Prospectus
discloses have occurred or may occur or that are described in
such letter; and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives that are derived from the general accounting records of
the Guarantor and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Guarantor and its subsidiaries and have found them to be
in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
-3-
<PAGE> 1
EXHIBIT (4a1)
PAGE 1
State of Delaware
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "FINA OIL AND CHEMICAL COMPANY", FILED IN THIS OFFICE ON THE
TWENTY-SEVENTH DAY OF JULY, A.D. 1994, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[SEAL] /s/ EDWARD J. FREEL
-------- --------------------------
EDWARD J. Freel, Secretary of State
0524526 8100 AUTHENTICATION: 7192670
944138529 DATE: 07-27-94
<PAGE> 2
ARTICLES OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
Fina Oil and Chemical Company, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said Corporation, by the
majority vote of its members, filed with the minutes of the Board, adopted a
resolution proposing and declaring advisable the following amendment to the
Certificate of Incorporation:
RESOLVED, That Article ELEVENTH of the Company's Certificate
of Incorporation be amended to read as follows:
ELEVENTH: That the officers, directors and employees be
indemnified to the fullest extent not precluded by Delaware General
Corporation Law in connection with or arising out of any action, suit
or proceeding related to the Corporation's business.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given majority written consent to said amendment in
accordance with the provisions of Section 228 of the General Corporation Law of
the State of Delaware and written notice has been given to stockholders as
required in such Section.
THIRD: That the aforesaid amendment was duly adopted in accordance
with applicable provisions of Sections 242 and 228 of the General Corporation
Law of the State of Delaware.
<PAGE> 3
The number of shares of the corporation outstanding at the time of
such adoption was 2,100; and the number of shares consenting to this amendment
was 2,100.
IN WITNESS WHEREOF, said Fina Oil and Chemical Company has caused this
certificate to be signed by Linda Middleton, its Secretary, and attested by
Robert D. Kilpatrick, its Assistant Secretary, this 1st day of June, 1994.
Dated: June 1, 1994
FINA OIL AND CHEMICAL COMPANY
/s/ LINDA MIDDLETON
------------------------
Linda Middleton, Secretary
ATTEST:
BY: /s/ ROBERT D. KILPATRICK
------------------------
Robert D. Kilpatrick
STATE OF TEXAS )
)
COUNTY OF DALLAS )
Before me, a Notary Public in and for the State of Texas, on this day
personally appeared Linda Middleton, Secretary of Fina Oil and Chemical
Company, known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements
therein contained are true and correct.
Given under my hand and seal of office this 1st day of June, 1994.
Martha L. Christensen
[SEAL] Commission Expires
May 6, 1997 /s/ MARTHA L. CHRISTENSEN
---------------------------
Notary Public, State of Texas
<PAGE> 4
STATE OF DELAWARE
[SEAL]
OFFICE OF SECRETARY OF STATE
-----------------------------
I, MICHAEL HAWKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF AMERICAN PETROFINA COMPANY OF TEXAS FILED IN THIS OFFICE ON THE
FIRST DAY OF JULY, A.D. 1985, AT 10 O'CLOCK A.M.
| | | | | | | | | |
/s/ MICHAEL HARKINS
-----------------------------------
Michael Harkins, Secretary of State
AUTHENTICATION: 0552971
735182002 DATE: 07/01/1985
<PAGE> 5
FILED
CERTIFICATE OF AMENDMENT JUL 1 1995
/s/ MICHAEL HARKINS
TO THE -------------------
Secretary of State
CERTIFICATE OF INCORPORATION
OF
AMERICAN PETROFINA COMPANY OF TEXAS
Pursuant to the provisions of Section 242 of the Delaware Corporation
Law Annotated, AMERICAN PETROFINA COMPANY OF TEXAS adopts the following
amendment to the Certificate of Incorporation to change Article FIRST to hereby
read as follows:
FIRST: The name of the corporation is
FINA OIL AND CHEMICAL COMPANY
(hereinafter called the "Corporation").
This Amendment was adopted at a special meeting of the shareholders in
accordance with Section 222 of the Delaware Corporation Law Annotated after
submission by the Board of Directors on the 4th day of June, 1985. The holders
of all of the shares outstanding and entitled to vote on said Amendment
consented unanimously to adopt said Amendment to the Certificate of
Incorporation.
The number of shares of the corporation outstanding at the time of
such adoption was 2,100; and the number of shares entitled to vote thereon was
2,100.
Dated: June 4, 1985
ATTEST:
AMERICAN PETROFINA COMPANY OF TEXAS
/s/ LINDA MIDDLETON By: /s/ JOE A. MOSS
- ---------------------- ----------------------
Linda Middleton, Secretary Joe A. Moss, Vice President and
General Counsel
<PAGE> 6
STATE OF DELAWARE
[SEAL]
OFFICE OF SECRETARY OF STATE
I, JOHN N. MCDOWELL, Secretary of State of the State of Delaware, DO
HEREBY CERTIFY that the above and foregoing is a true and correct copy of
Certificate of Incorporation of the "AMERICAN PETROFINA COMPANY OF TEXAS", as
received and filed In this office the thirteenth day of June, A.D. 1958, at 9
o'clock A.M.
In Testimony Whereof, I have hereunto set my hand and
official seal of Dover this thirteenth day of June in
the year of our Lord one thousand nine hundred and
fifty-eight.
[SEAL] /s/ JOHN N. MCDOWELL
-----------------------------
Secretary of State
/s/ M D TOMLINSON
------------------------------
Ass't Secretary of State
<PAGE> 7
CERTIFICATE OF INCORPORATION
of
AMERICAN PETROFINA COMPANY OF TEXAS
-------------------------
WE, THE UNDERSIGNED, in order to form a corporation for the
purposes hereinafter stated, under and pursuant to the provisions of the
General Corporation Law of the State of Delaware, being Title 8, Chapter 1 of
the Delaware Code of 1953 effective February 12, 1953 as amended and
supplemented, do hereby certify as follows:
FIRST: The name of the corporation shall be American
Petrofina Company of Texas hereinafter called the "Corporation").
SECOND: The principal office of the Corporation In the State
of Delaware is to be located in the City of Dover, County of Kent. The agent In
charge thereof is the United States Corporation Company, whose address is
No. 129 South State Street, in said city.
THIRD: The nature of the business of the Corporation and the
objects and purposes proposed to be
<PAGE> 8
transacted, promoted and carried on are to do any or all of the things herein
mentioned, as fully and to the same extent as natural persons might or could do
and in any part of the world:
(a) To carry out all phases of the business of drilling,
boring and exploring for, producing, manufacturing, treating,
refining, liquefying, or otherwise preparing for market, transporting,
marketing, dealing in, buying and selling, storing, or otherwise
disposing of oil of any and all kinds and grades, natural or
artificial gas of any and all forms, gasoline, carbon and hydrocarbon
products, ammonia, sulphur, asphalt, bitumen and bituminous substances
of all kinds, chemicals, petrochemicals, fertilizers, and any and all
other minerals, mineral substances, metals, ores of every kind,
drugs, pharmaceuticals, and the elements, constituents, products,
by-products, mixtures, combinations, compounds, derivatives and
blends thereof;
(b) To obtain by contract or concession, purchase, or
otherwise acquire, own, use, develop, explore, operate, lease,
mortgage, create liens upon, deal and trade in, sell, lease or
otherwise dispose of any and all lands, real property, mining
claims, mineral rights, gas and oil wells, leases, concessions,
licenses, royalty interests, grants, rights of way, land patents,
franchises, deposits, water rights, wells, mines, quarries, claims,
easements, tenements, hereditaments and interests of every description
and nature whatsoever;
(c) To engage in any kind of manufacturing business and
to manufacture, buy, lease or otherwise acquire, own, operate,
install, service, transport, import, export, sell, lease or otherwise
dispose of and generally to trade and deal in and with any and all
kinds of raw materials, natural resources, manufactured articles and
products, equipment, machinery, parts, supplies, tools, and goods,
merchandise and tangible property of every kind, used or
-2-
<PAGE> 9
capable of being used for any purpose whatever;
(d) To build, purchase, lease or otherwise acquire, own,
develop, operate, mortgage, create liens upon, deal in, sell, lease or
otherwise dispose of transportation facilities, including cars, tank
cars, pipe lines, transmission lines, distribution lines and plants,
pumping and compressing stations, terminals, aircraft, tankers and
other vessels or ships of any kind, and any and all related
facilities;
(e) To build, purchase, lease, or otherwise acquire, own,
develop, operate, mortgage, create liens upon, deal in, sell, lease or
otherwise dispose of any and all kinds of plants, factories,
buildings, refineries, warehouses, power plants, waterworks, tanks and
other storage facilities, machinery of all kinds, property, real or
personal, of every kind and description, docks, repair shops,
telegraph and telephone facilities, and any and all facilities,
connections, installations, things or property, "real and personal and
of every kind and description, connected with, incidental to,
necessary, suitable, useful, convenient or appertaining to any or all
of the foregoing purposes and powers of the Corporation or any of its
businesses and activities;
(f) To acquire and use, develop and operate and sell,
assign, grant licenses or territorial rights in respect of, or
otherwise to turn to account or dispose of any copyrights, trademarks,
trade names, brands, patent rights, letters patent of the United
States or of any other country or government, inventions, improvements
and processes, whether used in connection with or secured under
letters patent or otherwise;
(g) To borrow money and to make and issue notes, bonds,
debentures, bills of exchange, obligations and evidences of
indebtedness of all kinds, whether secured by mortgage, pledge or
otherwise, without limit as to amount, and to secure the same by
mortgage, pledge or otherwise, including the right to guarantee
evidences of indebtedness of other persons, firms, corporations or
organizations and to secure evidences of indebtedness of other
persons, firms, corporations or
-3-
<PAGE> 10
organizations by mortgage, pledge or otherwise, and generally to make
and perform agreements and contracts of every kind and description;
(h) To own, subscribe for or cause to be subscribed for
and to purchase or otherwise acquire, hold for investment or otherwise
and to use, sell, assign, transfer, mortgage, pledge, exchange,
distribute or otherwise deal with or dispose of stocks, bonds,
mortgages, deeds of trust, obligations, evidences of indebtedness,
securities, notes, goodwill, rights, assets, and property of any and
every kind; and to operate, manage and control such properties or
any of them; to merge or consolidate with any corporation in such
manner as may be permitted by law;
(i) To aid in any manner any person, firm, corporation or
organization whose stock, bonds or other obligations are held or in
any manner guaranteed by the Corporation, or in which the Corporation
is in any way interested, and to do any other acts or things for the
preservation, protection, improvement or enhancement of the value of
any such stock, bonds, or other obligations, and while owner of any
such stock, bonds or other obligations to exercise all the rights,
powers and privileges of ownership thereof, and to exercise any and
all voting powers thereon, to guarantee the payment of dividends upon
any stock, or the principal or interest or both of any bonds or other
obligations, and the performance of any contracts;
(j) To purchase or otherwise acquire shares of its own
capital stock, bonds, notes, debentures or other obligations, and to
sell or otherwise dispose of or retire the same, provided that the
Corporation shall not use any of its funds or property for the
purchase of its own shares of capital stock when such use would cause
any impairment of the
-4-
<PAGE> 11
capital of the Corporation and provided further that the shares of its
own capital stock belonging to the Corporation shall not be voted
directly or indirectly;
(k) To do all and everything necessary, suitable and
proper for the accomplishment of any of the purposes or the attainment
of any of the objects or the furtherance of any of the powers
hereinbefore set forth, either alone or in association with other
corporations, firms, or individuals, and to do every other act or
acts, thing or things incidental or appurtenant to or growing out of
or connected with the aforesaid business or powers or any part or
parts thereof, provided the same be not inconsistent with the laws
under which the Corporation is organized.
The business or purpose of the Corporation is from time to
time to do any one or more of the acts and things hereinabove set forth, and it
shall have power to conduct and carry on its said business, or any part
thereof, and to have one or more offices, and to exercise any or all of its
corporate powers and rights, in the State of Delaware and in the various other
states, territories, colonies and Dependencies of the United States, in the
District of Columbia, and in all or any foreign countries.
The enumeration herein of the objects and purposes of the
Corporation shall be construed as powers as well as objects and purposes and
shall not be deemed to exclude by inference any powers, objects or purposes
which the Corporation is empowered to exercise, whether expressly by force of
the laws of the State of Delaware now or hereafter in
-5-
<PAGE> 12
effect or impliedly by the reasonable construction of the said laws.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 10,000 shares of Common Stock of
the par value of $1 per share.
FIFTH: The minimum amount of capital with which the
Corporation will commence business is $1,000.00.
SIXTH: The names and places of residence of each of the
incorporators are as follows:
<TABLE>
<CAPTION>
Name Residence
---- ---------
<S> <C>
Edward R. Wardwell 216 East 72d Street
New York, New York
William D. Tucker, Jr. 133 Cliff Avenue
Pelham, New York
Peter A. Bator 114 Ocean Avenue
Woodmere, Long Island,
New York
</TABLE>
-6-
<PAGE> 13
SEVENTH: The existence of the Corporation is to be perpetual.
EIGHTH: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatsoever.
NINTH: The number of directors of the Corporation shall be
fixed from time to time by, or in the manner provided in, the By-Laws, but in
no case shall the number be less than three. Vacancies (unless the vacancy be
caused by the removal of a director) and newly created directorships resulting
from any increase in the authorized number of directors shall be filled by a
majority of the directors then in office, though less than a quorum, and the
directors so chosen shall hold office until the next annual election and until
their successors shall be elected and qualified. The election of directors of
the Corporation need not be by ballot unless the By-Laws so require.
Any director may be removed at any time, either with
or without cause, and his place filled at any meeting of stockholders by the
affirmative vote of the holders of record of a majority of the issued and
outstanding shares of stock of the Corporation entitled to vote.
In furtherance, and not in limitation of the powers
conferred by law, and in addition to the powers
-7-
<PAGE> 14
which may be conferred by the By-Laws, the Board of Directors is expressly
authorized:
(a) To make, alter, amend or repeal the By-Laws of the
Corporation subject to the power of the stockholders of the
Corporation having voting power to alter, amend or repeal By-Laws made
by the Board of Directors.
(b) To remove at any time any officer elected or
appointed by the Board of Directors by such vote of the Board of
Directors as may be provided for in the By-Laws. Any other officer of
the Corporation may be removed at any time by a vote of the Board of
Directors, or by any committee or superior officer upon whom such
power of removal may be conferred by the By-Laws or by the vote of the
Board of Directors.
(c) To determine whether any, and if any, what part, of
the annual net profits of the Corporation or of its net assets in
excess of its capital shall be declared in dividends and paid to the
stockholders, and to direct and determine the use and disposition of
any such annual net profits or net assets in excess of capital.
(d) To fix from time to time the amount of the profits of
the Corporation to be reserved as
-8-
<PAGE> 15
working capital or for any other lawful purpose.
(e) From time to time to determine whether and to what
extent, and at what time and places and under what conditions and
regulations the accounts and books of the Corporation (other than the
stock ledger), or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any
account or book or document of the Corporation, except as conferred by
statute or authorized by the Board of Directors or by a resolution of
the stockholders.
(f) To establish bonus, profit sharing, stock option,
retirement or other types of incentive or compensation plans for the
employees (including officers and directors) of the Corporation
and to fix the amount of the profits to be distributed or shared and
to determine the persons to participate in any such plans and the
amount of their respective participations.
(g) To authorize, and cause to be executed, mortgages and
liens upon the real and personal property of the Corporation.
TENTH: No contract or other transaction between the
Corporation and any other corporation and no other act
-9-
<PAGE> 16
of the Corporation with relation to any other corporation shall, in the absence
of fraud, in any way be invalidated or otherwise affected by the fact that any
one or more of the directors of the Corporation are pecuniarily or otherwise
interested in, or are directors or officers of, such other corporation. Any
director of the Corporation individually, or any firm or association of which
any director may be a member, may be a party to, or may be pecuniarily or
otherwise interested in, any contract or transaction of the Corporation,
provided that the fact that he individually or as a member of such firm or
association is such a party or so interested and the extent of such interest
shall be disclosed or shall have been known to a majority of the whole Board of
Directors present at any meeting of the Board of Directors at which action upon
any such contract or transaction shall be taken; and any director of the
Corporation who is also a director or officer of such other corporation or who
is such a party or so interested may be counted in determining the existence of
a quorum at any meeting of the Board of Directors which shall authorize any
such contract or transaction, and may vote thereat to authorize any such
contract or transaction, with like force and effect as If he were not such
director or officer of such other corporation or not
-10-
<PAGE> 17
so interested. Any director of the Corporation may vote upon any contract or
other transaction between the Corporation and any subsidiary or parent or
affiliated corporation without regard to the fact that he is also a director of
such subsidiary or parent or affiliated corporation.
ELEVENTH: Each director and each officer (and his heirs,
executors and administrators) shall be indemnified by the Corporation against
expenses reasonably incurred by or imposed upon him in connection with or
arising out of any action, suit or proceeding in which he may be involved or
to which he may be made a party by reason of his being or having been a
director or officer of the Corporation or, at its request, of any other
corporation of which it is a stockholder or creditor and from which he is not
entitled to be indemnified (whether or not he continues to be a director or
officer at the time of imposing or incurring such expenses), except in respect
of matters as to which he shall be finally adjudged in such action, suit or
proceeding to be liable for negligence or misconduct; or in the event of a
settlement of any such action, suit or proceeding, indemnification shall be
provided only in connection with such matters covered by the settlement as to
which the Corporation is advised by counsel that the person to be indemnified
did not commit a breach of duty. The foregoing right of in-
-11-
<PAGE> 18
demnification shall not be exclusive of other rights to which he may be
entitled.
TWELFTH: Each officer, director, or member of any committee
designated by the Board of Directors shall, in the performance of his duties,
be fully protected in relying in good faith upon the books of account or
reports made to the Corporation by any of its officials or by an independent
public accountant or by an appraiser selected with reasonable care by the Board
of Directors or by any such committee or in relying in good faith upon other
records of the Corporation.
THIRTEENTH: Both the stockholders and the directors of the
Corporation may, if the By-Laws so provide, hold their meetings and the
Corporation may have an office or offices and may keep its books (except such
as are required by the laws of the State of Delaware to be kept in Delaware)
within or without the State Delaware, at such place or places as may from time
to time be designated by the Board of Directors.
FOURTEENTH: The Corporation hereby reserves the right to
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation in the manner now or hereafter prescribed by the laws of
-12-
<PAGE> 19
the State of Delaware and all rights conferred on stockholders therein are
granted subject to this reservation.
IN WITNESS WHEREOF, we have hereunto set our hands and seals this 12th
day of June, 1958.
/s/ EDWARD R. WARDWELL (L.S.)
--------------------------
/s/ WILLIAM D. TUCKER, JR. (L.S.)
---------------------------
/s/ PETER A. BATOR (L.S.)
---------------------------
-13-
<PAGE> 20
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
BE IT REMEMBERED that on the 12th day of June, 1958,
personally came before me, ROSE F. ECKERT a Notary Public in and for the State
and County aforesaid, Edward R. Wardwell, William D. Tucker, Jr. and Peter A.
Bator, parties to the foregoing Certificate of Incorporation, known to me
personally to be such, and acknowledged said Certificate of Incorporation to be
the act and deed of said signers and that the facts therein stated are truly
set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ ROSE F. ECKERT
----------------------------------------
Notary Public
ROSE F. ECKERT
Notary Public, State of New York
No. 24-6142700 Qualified in Kings County
Certificates filed in New York County
Commission Expires March 30, 1960
<PAGE> 1
EXHIBIT (4b1)
AMENDED AND RESTATED AS OF FEBRUARY 19, 1987
BYLAWS
OF
FINA OIL AND CHEMICAL COMPANY
(a Delaware Corporation)
----------
ARTICLE 1.
Offices.
Section 1. Principal office in Delaware. The principal registered
office of Fina Oil and Chemical Company (hereinafter called the Corporation),
in the State of Delaware shall be in the City of Wilmington, and the registered
agent in charge thereof shall be The Corporation Trust Company.
Section 2. Other Offices. The Corporation may have a principal or
other office or offices at such other place or places, either within or without
the State of Delaware, as the Board of Directors may from time to time
determine or as shall be necessary or appropriate for the conduct of the
business of the Corporation.
<PAGE> 2
Article II.
Meeting of Stockholders.
Section 1. Place of Meeting. All meetings of stockholders shall be
held at the head office of the Corporation or at such place or places as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices or waivers of notice thereof.
Section 2. Annual Meetings. The annual meeting of stockholders for the
election of directors and the transaction of other business shall be held on
the first Wednesday of April immediately following the tenth day of such month
in each year. If this date shall fall upon a legal holiday, the meeting shall
be held on the next succeeding business day. At each annual meeting, the
stockholders entitled to vote shall elect a Board of Directors and they may
transact such other corporate business as shall be stated in the notice of the
meeting.
Section 3. Special Meetings. A special meeting of the stockholders, or
any class thereof entitled to vote, for any purpose or purposes, may be called
at any time by the Chairman of the Board or the President or by order of the
Board of Directors and shall be called by the Chairman of the Board or the
President or the Secretary upon the written request of stockholders holding of
record at least
-2-
<PAGE> 3
a majority of the outstanding shares of stock of the Corporation entitled to
vote at such meeting.
Section 4. Notice of Meetings. Except as otherwise expressly required
by law, notice of each meeting of stockholders, whether annual or special,
shall be given at least ten days before the date on which the meeting is to be
held, to each stockholder of record entitled to vote thereat by delivering a
notice thereof to him personally, or by mailing such notice in a postage
prepaid envelope directed to him at his address as it appears on the stock
ledger of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be directed to
another address, in which case such notice shall be directed to him at the
address designated in such request. Every notice of a special meeting of the
stockholders, besides stating the time and place of the meeting, shall state
briefly the objects or purposes thereof. Notice of any meeting of stockholders
shall not be required to be given to any stockholder who shall attend such
meeting in person or by proxy; and, if any stockholder shall, in person or by
attorney thereunto authorized, in writing or by telegraph, cable or wireless,
waive notice of any meeting of the stockholders, whether prior to or after such
meeting, notice thereof need not be given to him. Notice of any adjourned
meeting of the stockholders shall not be
-3-
<PAGE> 4
required to be given, except where expressly required by law. No business other
than that stated in the notice shall be transacted at any meeting without
unanimous consent of all the stockholders entitled to vote thereat.
Section 5. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of the
stock ledger to prepare and make, at least ten days before every election of
directors, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order. Such list shall be open for ten days as
specified in the Notice of the meeting, or, if not so specified at the place
where said election is to be held to the examination of any stockholder and
shall be produced and kept at the time and place of the election during the
whole time thereof and subject to the inspection of any stockholder who may be
present. The original or a duplicate stock ledger shall be the only evidence as
to who are the stockholders entitled to examine such list or the books of the
Corporation or to vote in person or by proxy at such election.
Section 6. Quorum. At each meeting of the stockholders, the holders of
record of 25% of the issued and outstanding stock of the Corporation entitled
to vote at such meeting, present in person or by proxy, shall constitute a
quorum for the transaction of business, except where otherwise provided by law,
the Certificate of
-4-
<PAGE> 5
Incorporation or these Bylaws. In the event that any business to be transacted
at such meeting requires the affirmative vote of any class of stock of the
Corporation, 25% of the issued and outstanding stock of such class, present in
person or by proxy, shall constitute a quorum for the transaction of such
business, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. In the absence of a quorum, any officer entitled
to preside at, or act as Secretary of, such meeting, shall have the power to
adjourn the meeting from time to time until a quorum shall be constituted. At
any such adjourned meeting at which a quorum shall be present any business may
be transacted which might have been transacted at the meeting as originally
called, but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
Section 7. Voting. At every meeting of stockholders each holder of
record of the issued and outstanding stock of the Corporation entitled to vote
at such meeting shall be entitled to one vote in person or by proxy for each
such share of stock entitled to vote held by such stockholder, but no proxy
shall be voted after three years from its date, unless the proxy provides for a
longer period and, except where the transfer books of the Corporation shall
have been closed or a date shall have been fixed as
-5-
<PAGE> 6
the record date for the determination of stockholders entitled to vote, no
share of stock shall be voted on at any election for directors which shall have
been transferred on the books of the Corporation within twenty days next
preceding such election of directors. Shares of its own capital stock belonging
to the Corporation directly or indirectly shall not be voted upon directly or
indirectly. At all meetings of the stockholders, quorum being present, all
matters shall be decided by a majority vote of the shares of stock entitled to
vote held by stockholders present in person or by proxy, except as otherwise
required by the laws of the State of Delaware and except as otherwise specified
in the Certificate of Incorporation of the Corporation. Unless demanded by a
stockholder of the Corporation present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat or so directed by the Chairman of
the meeting or required by the laws of the State of Delaware, the vote thereat
on any question need not be by ballot. On a vote by ballot, each ballot shall
be signed by the stockholder voting, or in his name by his proxy, if there be
such proxy, and shall state the number of shares voted by him. Whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
in connection with any corporate action by any provisions of the laws of the
State of Delaware or of the Certificate of Incorporation or of
-6-
<PAGE> 7
these Bylaws, the meeting and vote of stockholders may be dispensed with, if
all the stockholders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such corporate action being
taken.
ARTICLE III.
Board of Directors.
Section 1. General Powers. The property, business and affairs of the
Corporation shall be managed by the Board of Directors.
Section 2. Number and Term of Office. The number of directors shall be
fixed from time to time by resolution of the Board of Directors, but such
number may not be more than fifteen nor less than three. Directors need not be
stockholders. Each director shall hold office until the annual meeting of the
stockholders next following his election and until his successor shall have
been elected and shall qualify, or until his death, resignation, or removal.
Section 3. Quorum and Manner of Acting. Unless otherwise provided by
law, the presence of one-third of the whole Board of Directors, and in any case
not less than three directors, shall be necessary to constitute a quorum for
the transaction of business. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum
shall be
-7-
<PAGE> 8
present. Notice of any adjourned meeting need not be given. At all meetings of
directors, a quorum being present, all matters shall be decided by the
affirmative vote of a majority of the directors present, except as otherwise
required by the laws of the State of Delaware.
Section 4. Place of Meetings, etc. The Board of Directors may hold its
meetings and keep the books and records of the Corporation, at such place or
places within or without the State of Delaware, as the Board may from time to
time determine.
Section 5. Annual Meeting. After each annual meeting of stockholders
for the election of directors, the Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business. Notice of such meeting shall be given as hereinafter provided for
special meetings of the Board of Directors in Article III, Section 7.(b) of
these Bylaws or in a consent and waiver of notice thereof signed by all the
directors.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place, within or without the State of
Delaware, as shall from time to time be determined by the Board of Directors.
After there has been such determination and notice thereof has been once given
to each member of the Board of
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<PAGE> 9
Directors, regular meetings may be held without further notice being given.
Section 7. Special Meetings; Notice. (a) Special meetings of the
Board of Directors shall be held whenever called by the Chairman of the Board
or the President or by a majority of the directors. (b) Notice of each such
meeting shall be mailed to each director, addressed to him at his residence or
usual place of business, at least ten days before the date on which the meeting
is to be held, or shall be sent to him at each place by telegraph, cable, radio
or wireless, or be delivered personally or by telephone, not later than the day
before the day on which such meeting is to be held. Each such notice shall
state the time and place of the meeting but need not state the purposes thereof
except as otherwise required by these Bylaws, the Certificate of Incorporation
or the laws of the State of Delaware. In lieu of the notice to be given as set
forth above, a waiver thereof in writing, signed by the director or directors
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto for purposes of this Section 7. No notice to or
waiver by any director with respect to any Special Meeting shall be required if
such director shall be present at said meeting.
Section 8. Resignation. Any director of the Corporation may resign at
any time by giving written notice to
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<PAGE> 10
the Chairman of the Board, or the Secretary of the Corporation. The resignation
of any director shall take effect upon receipt of notice thereof or at such
later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 9. Removal. Any elected director may be removed at any time as
provided in the Certificate of Incorporation of the Corporation.
Section 10. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors shall be
filled as provided in the Certificate of Incorporation of the Corporation.
Section 11. Compensation of Directors. The directors shall be entitled
to be reimbursed for any expenses paid by them on account of attendance at any
regular or special meeting of the Board of Directors, and the Board may provide
that the Corporation shall pay each director such compensation for his services
as such as may be fixed by resolution of the Board. Nothing herein contained
shall be construed to preclude any director from serving the Corporation or any
subsidiary thereof in any other capacity and receiving compensation therefor.
Section 12. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to
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<PAGE> 11
consist of two or more directors of the Corporation, which to the extent
provided in the resolution or in the Bylaws, shall have and may exercise such
powers of the Board in the management of the business and affairs of the
Corporation (including the power to authorize the seal of the Corporation to be
affixed to all papers which may require it), as the Board may by resolution
determine and specify in the respective resolutions appointing them, subject to
such restrictions as may be contained in the Certificate of Incorporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. The committees
shall keep regular minutes of their proceedings and report the same to the
Board when required. A majority of all the members of any such committee may
fix its rules of procedure, determine its action and fix the time and place,
whether within or without the State of Delaware, of its meetings and specify
what notice thereof, if any, shall be given, unless the Board of Directors
shall otherwise by resolution provide. The Board of Directors shall have power
to change the membership of any such committee at any time, to fill vacancies
therein and to discharge any such committee, either with or without cause, at
any time. Each member of any such committee shall be paid such fee, if any, as
shall be fixed by the Board of Directors for each meeting of such committee
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<PAGE> 12
which he shall attend and, in addition, such transportation and other expenses
actually incurred by him in going to the meeting of such committee and
returning therefrom.
ARTICLE IV.
Officers.
Section 1. Number. The principal officers of the Corporation shall be
a Chairman of the Board, a President, an Executive Vice President, one or more
Vice Presidents, a Chief Financial Officer, a Treasurer, and a Secretary. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as may be appointed in accordance with the provisions of these
Bylaws. None of the officers, except the Chairman of the Board of Directors and
the President, need be directors. One person may hold the offices and perform
the duties of any two or more of said offices, except the offices and duties of
the Chairman of the Board, President, and Vice President, or of Chairman of the
Board, President and Secretary.
Section 2. Election and Term of Office. The principal officers of the
Corporation shall be chosen annually by the Board of Directors at the annual
meeting thereof. Each such officer shall hold office until his successor shall
have been duly chosen and shall qualify, or until his death or until he shall
resign or shall have been removed in the manner herein provided.
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<PAGE> 13
Section 3. Subordinate Officers. In addition to the principal officers
enumerated in Section 1 of this Article IV, the Corporation may have one or
more Assistant Treasurers, one or more Assistant Secretaries and such other
officers, agents and employees as the Board of Directors may deem necessary,
each of whom shall hold office for such period, have such authority, and
perform such duties as the Board or the President may from time to time
determine. The Board of Directors may delegate to any principal officer the
power to appoint and to remove any such subordinate officers, agents or
employees.
Section 4. Removal. Any officer may be removed, either with or without
cause, at any time, by resolutions adopted by the Board of Directors at any
regular meeting of the Board or at any special meeting of the Board called for
the purpose at which a quorum is present.
Section 5. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall take effect upon receipt of such notice
or at any later time specified therein; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
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<PAGE> 14
Section 6. Vacancies. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these Bylaws for
election or appointment to such office for such term.
Section 7. Chairman of the Board. The Chairman of the Board shall have
the power to call Special Meetings of the Stockholders and of the Board of
Directors of the Corporation for any purpose or purposes, in accordance with
the provisions of the Certificate of Incorporation and these Bylaws. He shall
preside at all meetings of the stockholders and the Board of Directors, unless
he shall be absent or incapacitated or unless he shall, at his option,
designate the President or, in the absence or incapacity of the President,
another officer of the Corporation to preside in his stead at a particular
meeting. The Chairman shall possess the same power as the President to execute
and deliver all certificates, contracts and other instruments of the
Corporation. During the absence or disability of the President, he shall
exercise all the powers and discharge all the duties of the President. He shall
perform such other duties which may be assigned to him by the Board of
Directors.
Section 8. President. The President shall be the Chief Executive
Officer of the Corporation and as such shall have general supervision of the
affairs of the Corporation, subject to the control of the Board of
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<PAGE> 15
Directors. In the event the office of Chairman of the Board is vacant, or in
the absence or incapacity of the Chairman of the Board, the President shall
assume all the duties, responsibilities, powers and authority of the Chairman
of the Board. He may enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation, except in cases in
which the authority to enter into such contract or execute and deliver such
instrument, as the case may be, shall be otherwise expressly delegated. In
general, he shall perform all duties and exercise all powers incident to the
office of President, as herein defined, and all such other duties as from time
to time may be assigned to him by the Board of Directors. He shall have the
power to call special meetings of the stockholders and of the Board of
Directors of the Corporation for any purpose or purposes, in accordance with
the provisions of the Certificate of incorporation and these Bylaws.
Section 9. Executive Vice President. The Executive Vice President
shall be the Chief Operating Officer of the Corporation and shall serve as
chief executive assistant to the President. The Executive Vice President shall
assume such duties and exercise such powers as the Board of Directors or the
President shall from time to time delegate to him, and shall at all times
actively supervise and carry out the executive functions and
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<PAGE> 16
activities devolving upon the office of Executive Vice President, subject to
the guidance, direction and authority of the President. In the absence or
incapacity of the Chairman of the Board and President, he shall assume all
duties, responsibilities powers and authority of the President. The Executive
Vice President may enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation, except in cases where
the authority to enter into such contract or execute and deliver such
instrument, as the case may be, shall be otherwise delegated.
Section 10. Vice Presidents. The Vice Presidents in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the Chairman of the Board, the President, and the
Executive Vice President, perform the duties and exercise the powers of the
Chairman of the Board, the President and the Executive Vice President. Any Vice
President may enter into any contract or execute and deliver any instrument in
the name and on behalf of the Corporation, except in cases where the authority
to enter into such contract or execute and deliver such instrument, as the case
may be, shall be otherwise delegated. They shall perform such other duties and
have such other powers as the President or the Board of Directors may from time
to time prescribe.
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<PAGE> 17
Section 11. Chief Financial Officer. The Chief Financial Officer shall
be responsible for the Company's overall financial planning, supervising of the
treasury function, relations with banks and financial community, and procuring
financings for operations and acquisitions; and, in general, shall perform such
other duties as from time to time may be assigned to him by the President or
the Board of Directors.
Section 12. Treasurer. The Treasurer shall report to the Chief
Financial Officer and shall have charge and custody of, and be responsible for,
all funds and securities of the Corporation and shall deposit all such funds in
the name of the Corporation in such banks or other depositories as shall be
selected by the Board of Directors. He shall exhibit at all reasonable time his
books of account and records to any of the directors of the Corporation upon
application during business hours at the office of the Corporation where such
books and records shall be kept; when requested by the Board of Directors,
shall render a statement of the condition of the finances of the Corporation at
any meeting of the Board or at the annual meeting of stockholders; shall
receive, and give receipt for, moneys due and payable to the Corporation from
any source whatsoever; and, in general, shall perform all the duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to him by the President or the Board
-17-
<PAGE> 18
of Directors. The Treasurer shall give such bond, if any, for the faithful
discharge of his duties as the Board of Directors may require.
Section 13. Secretary. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose;
shall see that all notices required to be given by the Corporation are duly
given and served; shall have charge of the stock records of the Corporation;
shall see that all reports, statements and other documents required by law are
properly kept and filed; and in general, shall perform all the duties incident
to the office of Secretary and such other duties as from time to time may be
assigned to him by the President or the Board of Directors.
Section 14. Salaries. The salaries of the principal officers and the
Chairman of the Board, if there be one, shall be fixed from time to time by the
Board of Directors, and the salaries of any other officers may be fixed by the
President.
ARTICLE V.
Shares and Their Transfer.
Section 1. Certificate for Stock. Every stockholder of the Corporation
shall be entitled to a
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<PAGE> 19
certificate or certificates, to be in such form as the Board of Directors shall
prescribe, certifying the number and class of shares of the capital stock of
the Corporation owned by him. The designations, preferences and relative,
participating, optional or other special rights of each class and the
qualifications, limitations or restrictions of such preferences or rights shall
be set forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent such class of stock.
Section 2. Stock Certificate Signature. The certificates for the
respective classes of such stock shall be numbered in the order in which they
shall be issued and shall be signed by the Chairman of the Board, the President
or any Vice President and the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation and its seal shall be
affixed thereto; provided, however, that, where such certificate is signed (1)
by a transfer agent or an assistant transfer agent or (2) by a transfer clerk
acting on behalf of the Corporation and a registrar, if the Board shall by
resolution so authorize, the signature of such Chairman of the Board,
President, Vice President, Treasurer, Secretary, Assistant Treasurer or
Assistant Secretary and the seal of the Corporation may be facsimile. In case
any officer or officers of the
-19-
<PAGE> 20
Corporation who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates shall cease to be
such officer or officers, whether by reason of death, resignation or otherwise,
before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been affixed thereto, had not ceased to be such officer
or officers.
Section 3. Stock Ledger. A record shall be kept by the Secretary,
transfer agent or by any other officer, employee or agent designated by the
Board of Directors of the name of the person, firm, or corporation holding the
stock represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the respective dates
thereof, and in case of cancellation, the respective dates of cancellation.
Section 4. Cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be canceled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been canceled,
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<PAGE> 21
except in cases provided for in Section 7 of this Article V.
Section 5. Transfers of Stock. Transfers of shares of the capital
stock of the Corporation shall be made only on the books of the Corporation by
the registered bolder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the Corporation, or
with a transfer clerk or a transfer agent appointed as in Section 6 of this
Article V; provided, and on surrender of the certificate or certificates for
such shares properly endorsed and the payment of all taxes thereon. The person
in whose name shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the Corporation; provided,
however, that whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact, if known to the Secretary of the
Corporation, shall be so expressed in the entry of transfer.
Section 6. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these Bylaws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
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<PAGE> 22
clerks or one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or signatures of any of
them.
Section 7. Lost, Destroyed, or Mutilated Certificates. As a condition
of the issue of a new certificate of stock in the place of any certificate
theretofore issued alleged to have been lost, stolen, mutilated or destroyed,
the Board of Directors, in its discretion, may require the owner of any such
certificate, or his legal representatives, to give the Corporation a bond in
such sum and in such form as it may direct, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft, mutilation or destruction of any such certificate or the issuance of
such new certificate. Proper and legal evidence of such loss, theft, mutilation
or destruction shall be procured for the Board of Directors, if required. The
Board of Directors, in its discretion, may refuse to issue such new
certificate, save upon the order of some court having jurisdiction in such
matters.
Section 8. Closing of Transfer Books. The Board of Directors may, by
resolution, direct that the stock transfer books of the Corporation be closed
for a period not exceeding fifty days preceding the date of any meeting of the
stockholders, or the date for the payment of any dividend, or the date for the
allotment of any
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<PAGE> 23
rights, or the date when any change or conversion or exchange of capital stock
of the Corporation shall go into effect, or for a period not exceeding fifty
days in connection with obtaining the consent of stockholders for any purpose.
In lieu of such closing of the stock transfer books, the Board may fix in
advance a date, not exceeding fifty days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect or a date in connection with obtaining such
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, such meeting, and any adjournment thereof, or to
receive payment of any dividend, or to receive any such allotment of rights, or
to exercise the rights in respect of any such change, conversion, or exchange
of capital stock or to give such consent, as the case may be, notwithstanding
any transfer of any stock on the books of the Corporation after any record date
so fixed.
ARTICLE VI
Miscellaneous Provisions.
Section 1. Corporate Seal. The Board of Directors shall provide a
corporate seal, which shall be in the form of a circle and shall bear the
name of the Corpora-
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<PAGE> 24
tion and the words and figures showing that it was incorporated in the State of
Delaware in the year 1956. The Secretary shall be the custodian of the seal.
The Board of Directors may authorize a duplicate seal to be kept and used by
any other officer.
Section 2. Fiscal Year. The fiscal year of the Corporation shall end
at the close of business on the 31st day of December in each year.
Section 3. Voting of Stocks owned by the Corporation. The Chairman of
the Board or President may authorize any person in behalf of the Corporation to
attend, vote and grant proxies to be used at any meeting of stockholders of any
corporation in which the Corporation may hold stock.
Section 4. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor, any regular or special meeting declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend, there may be set apart out of any funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
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<PAGE> 25
directors shall deem conducive to the interests of the Corporation.
ARTICLE VII.
Amendments.
The Bylaws of the Corporation may be altered, amended or repealed
either by the affirmative vote or a majority of the stock issued and outstanding
and entitled to vote in respect thereof and represented in person or by proxy at
any annual or special meeting of the stockholders, provided that notice of the
proposal so to alter or repeal or to make such Bylaws be included in the notice
of such meeting, or by the affirmative vote of a majority of the directors then
in office given at any regular or special meeting of the Board of Directors,
provided that notice of the proposal so to alter or repeal or amend such Bylaws
be included in the notice of any special meeting of the Board of Directors.
Bylaws, whether made or altered by the stockholders or by the Board of
Directors, shall be subject to alteration or repeal by the stockholders as in
this Article VII above provided.
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<PAGE> 1
[Form of June 26, 1996] EXHIBIT (4c)
_____________________________________________________
FINA OIL AND CHEMICAL COMPANY,
as Issuer
FINA, INC.,
as Guarantor
AND
[INDENTURE TRUSTEE],
as Trustee
________________________
I N D E N T U R E
Dated as of ______________, 199__
________________________
SENIOR DEBT SECURITIES
(Issuable in Series)
_____________________________________________________
<PAGE> 2
TIE-SHEET
of provisions of the Trust Indenture Act of 1939 with the Indenture, dated as
of ______________, 199__, among Fina Oil and Chemical Company, as Issuer, FINA,
Inc., as Guarantor, and Texas Commerce Bank National Association, as Trustee:
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08 and 8.10(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 and 6.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(d)
314 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(b)
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
315 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(1)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(2)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
316 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 and 7.06
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Section Section
of Act of Indenture
- ------ ------------
<S> <C> <C>
317 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.09
</TABLE>
_______________
This tie-sheet is not a part of the Indenture as executed.
-ii-
<PAGE> 4
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Certain terms defined; other terms defined in Trust Indenture Act of 1939
or by reference therein in Securities Act of 1933, as amended, to have
meanings therein assigned . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default; default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Private Placement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Sale and Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Debt Security; "outstanding" with reference to Senior Debt Securities . . 7
Senior Debt Security Register; Senior Debt Security Registrar . . . . . . . . . . 7
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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* The Table of Contents, comprising pages i to xv inclusive, is not
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Series Supplement or Supplement . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION,
REGISTRATION OF TRANSFER AND
EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. Form of Senior Debt Securities and Certificate of Authentication. . . . . . . . . 8
SECTION 2.02. Amount unlimited; Senior Debt Securities issuable in Series;
Certain related provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.03. Authentication and delivery of Senior Debt Securities . . . . . . . . . . . . . 14
SECTION 2.04. Date of Senior Debt Securities and denominations . . . . . . . . . . . . . . . . 14
SECTION 2.05. Execution of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.06. Exchange of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 16
Senior Debt Securities to be accompanied by proper instruments
of transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Charges upon exchange, registration or transfer or registration of
Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Restrictions on issue, registration of transfer or exchange at certain
times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.07. Temporary Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.08. Mutilated, destroyed, lost or stolen Senior Debt Securities . . . . . . . . . . 18
SECTION 2.09. Cancellation of surrendered Senior Debt Securities . . . . . . . . . . . . . . . 18
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SECTION 2.10. Provisions of the Indenture and Senior Debt Securities for the sole benefit
of the parties, holders of Senior Debt Securities . . . . . . . . . . . . . . 18
ARTICLE THREE.
GUARANTEE OF FINA, INC.
SECTION 3.01. Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.02. Execution and Authentication of Guarantee . . . . . . . . . . . . . . . . . . . 19
SECTION 3.03. Release of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT
SECURITIES - SINKING FUND.
SECTION 4.01. Redemption prices of Senior Debt Securities . . . . . . . . . . . . . . . . . . 20
Restriction on redemption of Senior Debt Securities . . . . . . . . . . . . . . 20
SECTION 4.02. Mailing of notice of redemption . . . . . . . . . . . . . . . . . . . . . . . . 20
Selection of Senior Debt Securities in case less than all Senior Debt
Securities to be redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.03. When Senior Debt Securities called for redemption become due and payable . . . . 21
SECTION 4.04. Sinking Fund; amounts and payment dates . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.05. Credits against Sinking Fund payments . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.06. Certificates and Senior Debt Securities to be delivered to the Trustee . . . . . 23
SECTION 4.07. Cash to be delivered to the Trustee . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.08. Application of Sinking Fund payments to redemption of Senior Debt Securities . . 24
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SECTION 4.09. Manner of redeeming Senior Debt Securities . . . . . . . . . . . . . . . . . . . 24
Sinking Fund redemption price . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.10. Application of Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.11. Cancellation and destruction of redeemed Senior Debt Securities . . . . . . . . . 25
SECTION 4.12. Sinking Fund moneys to be held as security during continuance of Event of
Default; exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTOR.
SECTION 5.01. Payment of principal of and premium, if any, and interest on Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.02. Maintenance of office or agency for registration, registration of transfer,
exchange and payment of Senior Debt Securities . . . . . . . . . . . . . . . . 25
SECTION 5.03. Prohibition of extension of claims for interest . . . . . . . . . . . . . . . . . 26
SECTION 5.04. Appointment to fill a vacancy in the office of Trustee . . . . . . . . . . . . . 26
SECTION 5.05. (a) Duties of paying agent . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Company as paying agent . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(c) Turnover to Trustee by paying agent or Company . . . . . . . . . . . . . . . 26
(d) Holding sums in trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.06. Company to furnish annual compliance certificate . . . . . . . . . . . . . . . . 27
SECTION 5.07. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.08. Limitation on Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . 29
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ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT
SECURITIES AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 6.01. Company to furnish Trustee information as to names and addresses of holders
of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.02. (a) Trustee to preserve information as to names and addresses of holders
of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 30
Trustee may destroy list of holders of Senior Debt Securities on
certain conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(b) Trustee to make information as to names and addresses of holders of Senior
Debt Securities available to "applicants" or mail communications to holders
of Senior Debt Securities in certain circumstances . . . . . . . . . . . 30
Procedure if Trustee elects not to make information available to
"applicants" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(c) Company and Trustee not accountable for disclosure of information . . . . . 30
SECTION 6.03. (a) Annual and other reports to be filed by Company and the Guarantor
with Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(b) Additional information and reports to be filed with Trustee and
Securities and Exchange Commission . . . . . . . . . . . . . . . . . . . 32
(c) Summaries of information and reports to be transmitted by Company and the
Guarantor to holders of Senior Debt Securities . . . . . . . . . . . . . 32
SECTION 6.04. (a) Trustee to transmit reports to holders of Senior Debt Securities . . . . . 33
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(b) Trustee to transmit certain further reports to holders of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(c) To which holders of Senior Debt Securities reports are to be mailed . . . . 33
(d) Copies of reports to be filed with stock exchanges and Securities and
Exchange Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
OF SENIOR DEBT SECURITIES
IN EVENT OF DEFAULT.
SECTION 7.01. Events of Default defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Acceleration of maturity upon Event of Default . . . . . . . . . . . . . . . . . 35
Waiver of default and rescission of declaration of acceleration . . . . . . . . . 35
Restoration of former position and rights upon curing of all defaults . . . . . . 35
SECTION 7.02. Covenant of Company to pay to Trustee whole amount due on Senior Debt Securities
on default in payment of interest . . . . . . . . . . . . . . . . . . . . . . 37
Trustee may recover judgment for whole amount due on Senior Debt Securities
on failure of Company to pay . . . . . . . . . . . . . . . . . . . . . . . . . 37
Filing of proof of claim by Trustee in bankruptcy, reorganization,
receivership, or other judicial proceedings . . . . . . . . . . . . . . . . . 37
Trustee may enforce rights of action and assert claims without possession of
Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Trustee may enforce rights vested in it by Indenture by appropriate judicial
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.03. Application of moneys collected by Trustee . . . . . . . . . . . . . . . . . . . 39
SECTION 7.04. Limitation on suits by holders of Senior Debt Securities . . . . . . . . . . . . 40
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SECTION 7.05. Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Delay or omission in exercise of rights not a waiver of default . . . . . . . . . 41
SECTION 7.06. Rights of holders of majority in principal amount of Senior Debt Securities of
a Series to direct Trustee and to waive default . . . . . . . . . . . . . . . . 41
SECTION 7.07. Trustee to give notice of defaults known to it, but may withhold in certain
circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.08. Requirement of an undertaking to pay costs in certain suits under the
Indenture or against the Trustee . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Upon Event of Default occurring and continuing, Trustee shall exercise powers
vested in it, and use same degree of care and skill in their exercise, as a
prudent man would use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Trustee not relieved from liability for negligence or willful misconduct
except as provided in this Section . . . . . . . . . . . . . . . . . . . . . . 42
(a) Prior to Event of Default and after the curing of all Events of Default
which may have occurred
(1) Trustee not liable except for performance of duties specifically set
forth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(2) In absence of bad faith, Trustee may conclusively rely on certificates
or opinions furnished it hereunder, subject to duty to examine the
same if specifically required to be furnished to it . . . . . . . . 42
(b) Trustee not liable for error of judgment made in good faith by responsible
officer unless Trustee negligent . . . . . . . . . . . . . . . . . . . . . 42
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(c) Trustee not liable for action or non-action in accordance with direction
of holders of majority in principal amount of Senior Debt Securities
of a Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Trustee not required to expend own funds . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.02. Subject to provisions of Section 8.01:
(a) Trustee may rely on documents believed genuine and properly signed or
presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(b) Sufficient evidence by certain instruments provided for . . . . . . . . . . 44
(c) Trustee may act on Opinion of Counsel . . . . . . . . . . . . . . . . . . . 44
(d) Trustee may require indemnity from holders of Senior Debt Securities . . . . 44
(e) Trustee not liable for action in good faith believed to be authorized . . . . 44
(f) Trustee not bound to make any investigation of any document . . . . . . . . 44
(g) Trustee may act through agent . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 8.03. Trustee not liable for recitals in Indenture or in Senior Debt Securities . . . . 45
No representations by Trustee as to validity of Indenture or of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Trustee not accountable for use of Senior Debt Securities or proceeds . . . . . . 45
SECTION 8.04. Trustee, paying agent or Senior Debt Security Registrar may own Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 8.05. Moneys received by Trustee to be held in trust without interest . . . . . . . . . 45
SECTION 8.06. Trustee entitled to compensation, reimbursement and indemnity . . . . . . . . . . 45
Obligations to Trustee to be secured by lien prior to Senior Debt Securities . . . 45
SECTION 8.07. Right of Trustee to rely on Officers' Certificate where no other evidence
specifically prescribed . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 8.08. (a) Trustee acquiring conflicting interest to eliminate conflict
or resign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(b) Notice to holders of Senior Debt Securities in case of
failure to comply with subsection (a) . . . . . . . . . . . . . . . . . . . 47
(c) Definition of conflicting interest . . . . . . . . . . . . . . . . . . . . . 47
(d) Definition of certain terms . . . . . . . . . . . . . . . . . . . . . . . . 47
(e) Calculations of percentage of securities . . . . . . . . . . . . . . . . . 47
SECTION 8.09. Requirements for eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.10. (a) Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(b) Removal of Trustee by Company or court on application of
holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . 53
(c) Removal of Trustee by Company . . . . . . . . . . . . . . . . . . . . . . . 53
(d) Removal of Trustee by holders of majority in principal amount of
Senior Debt Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . 53
(e) Time when resignation or removal of Trustee effective . . . . . . . . . . . 53
(f) Company to deliver notice of appointment of successor trustee . . . . . . . 53
SECTION 8.11. Acceptance by successor to Trustee . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 8.12. Successor to Trustee by merger, consolidation or succession to business. . . . . . 56
SECTION 8.13. (a) Limitations on rights of Trustee as a creditor to obtain payment
of certain claims, within three months prior to default or during
default, or to realize on property as such creditor thereafter . . . . . . 57
(b) Certain creditor relationships excluded . . . . . . . . . . . . . . . . . . 57
(c) Definition of certain terms . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE NINE.
CONCERNING THE HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 9.01. Evidence of action by holders of Senior Debt Securities . . . . . . . . . . . . . 61
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SECTION 9.02. Proof of execution of instruments and of holding of Senior
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.03. Who may be deemed owners of Senior Debt Securities . . . . . . . . . . . . . . . 62
SECTION 9.04. Senior Debt Securities owned by Company or controlled or
controlling companies disregarded for certain purposes . . . . . . . . . . . . 62
SECTION 9.05. Instruments executed by holders of Senior Debt Securities
bind future holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE TEN.
MEETINGS OF HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 10.01. Purposes for which meetings may be called . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.02. Manner of calling meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.03. Call of meetings by Company or holders of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.04. Who may attend and vote at meetings . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.05. Regulations may be made by Trustee . . . . . . . . . . . . . . . . . . . . . . . 64
Conduct of the meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Voting rights-adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 10.06. Manner of voting at meetings and record to be kept . . . . . . . . . . . . . . . 65
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Purposes for which supplemental indentures may be entered into
without consent of holders of Senior Debt Securities . . . . . . . . . . . . . 66
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SECTION 11.02. Modification of Indenture with consent of holders of majority in
principal amount of Senior Debt Securities of a Series . . . . . . . . . . . . 67
SECTION 11.03. Effect of supplemental indentures . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11.04. Senior Debt Securities may bear notation of changes by
supplemental indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE TWELVE.
CONSOLIDATION, MERGER,
SALE OR CONVEYANCE.
SECTION 12.01. Consolidations and mergers of Company and conveyances permitted . . . . . . . . 69
Assumption of obligations of Company by successor company or transferee . . . . . 69
SECTION 12.02. Rights and duties of successor corporation . . . . . . . . . . . . . . . . . . . 70
Appropriate changes may be made in form of Senior Debt Securities . . . . . . . . 70
SECTION 12.03. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Satisfaction and discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.02. Application by Trustee of funds deposited for payment of
Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.03. Repayment of moneys held by paying agent . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.04. Repayment of moneys held by Trustee . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Incorporators, stockholders, officers and directors of Company and Guarantor
exempt from individual liability . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Successors and assigns of Company bound by Indenture . . . . . . . . . . . . . . 74
SECTION 15.02. Acts of board, committee or officer of successor corporation valid . . . . . . . 74
SECTION 15.03. Surrender of powers by Company . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.04. Service of required notices or demands . . . . . . . . . . . . . . . . . . . . . 74
SECTION 15.05. Notice to holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . 74
SECTION 15.06. Indenture and Senior Debt Securities to be construed in accordance with the
laws of the State of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 15.07. Officers' Certificate and Opinion of Counsel to be furnished upon
applications or demands by the Company . . . . . . . . . . . . . . . . . . . . 75
Statements to be included in each certificate or opinion with respect
to compliance with a condition or covenant . . . . . . . . . . . . . . . . . . 75
SECTION 15.08. Payments due on Sundays and holidays . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.09. Provisions required by Trust Indenture Act of 1939 to control . . . . . . . . . 76
SECTION 15.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.11. Indenture may be executed in counterparts . . . . . . . . . . . . . . . . . . . . 76
SECTION 15.12. Computation of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
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<TABLE>
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<S> <C> <C>
SECTION 15.13. Acceptance of trusts by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 76
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
EXHIBIT A Form of Series Supplement
EXHIBIT B Form of Notation of Guarantee
</TABLE>
-xv-
<PAGE> 17
INDENTURE, dated as of ______________, 199__, among FINA OIL AND
CHEMICAL COMPANY, a corporation duly organized and existing under the laws of
the State of Delaware, as issuer (hereinafter sometimes referred to as the
"Company"), FINA, INC., a corporation duly organized and existing under the
laws of the State of Delaware, as guarantor (hereinafter referred to as the
"Guarantor"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America, as
trustee (hereinafter sometimes referred to as the "Trustee").
PRELIMINARY STATEMENT
The Company has duly authorized the execution and delivery of this
Indenture to provide for one or more series of Senior Debt Securities, issuable
as provided in this Indenture. Each series of such Senior Debt Securities will
be issued only under a separate Series Supplement to this Indenture duly
executed and delivered by the Company, the Guarantor and the Trustee and
limited to amounts therein prescribed. All covenants and agreements made by
the Company and the Guarantor herein are for the benefit and security of the
holders of Senior Debt Securities. The Company and the Guarantor are entering
into this Indenture, and the Trustee is accepting the trust created hereby, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Attributable Debt:
The term "Attributable Debt" shall mean, with respect to a Sale and
Leaseback Transaction with respect to any Principal Property, the lesser of:
(a) the fair market value of such property (as determined in good faith by the
Board of Directors); or (b) the present value of the total net amount of rent
required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended and excluding any
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<PAGE> 18
unexercised renewal or other extension options exercisable by the lessee, and
excluding amounts on account of maintenance and repairs, services, taxes and
similar charges and contingent rents), discounted at the rate of interest set
forth or implicit in the terms of such lease compounded semi-annually.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day for at least
five days in each calendar week, whether or not published on Saturdays, Sundays
or legal holidays, and of general circulation in the Borough of Manhattan, The
City of New York. Whenever under the provisions of this Indenture two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different newspapers.
Board of Directors:
The term "Board of Directors" shall mean either the Board of Directors
of the Company or the Guarantor, as the context requires, or any committee of
such Board of Directors duly authorized to act on its behalf.
Board Resolution:
The term "Board Resolution" shall mean one or more resolutions,
certified by the secretary or an assistant secretary of the Company or the
Guarantor, as the case may be, to have been duly adopted or consented to by
such Board of Directors and to be in full force and effect, and delivered to
the Trustee.
Business Day:
The term "business day" shall mean any day except a Saturday, a Sunday
or a day on which banking institutions are legally authorized to close in The
City of New York, New York, or The City of Dallas, Texas.
Certificate of a Firm of Independent Public Accountants:
The term "Certificate of a Firm of Independent Public Accountants"
shall mean a certificate signed by an individual, partnership or corporation
engaged in accounting work who may be the accountants regularly employed by the
Company.
Company:
The term "Company" shall mean FINA OIL AND CHEMICAL COMPANY, a
Delaware corporation, and, subject to the provisions of Article Twelve, shall
also include its successors and assigns.
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<PAGE> 19
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets included on the most recent consolidated balance sheet of the
Guarantor and its Restricted Subsidiaries, less applicable reserves and other
properly deductible items and after deducting therefrom (a) all current
liabilities and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense, and other like intangibles, all in accordance with
generally accepted accounting principles consistently applied.
Corporate Trust Office:
The term "corporate trust office" of the Trustee shall mean an office
or agency of the Trustee in the City of Dallas, Texas, designated by the
Trustee, from time to time, as the Trustee's corporate trust office for
purposes of this Indenture, which office at the date of the execution of this
Indenture is located at Texas Commerce Tower, 2200 Ross Avenue, Fifth Floor,
Dallas, Texas 75201.
Event of Default; default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of notice,
if any, therein designated.
Unless the context otherwise requires, the term "default" shall mean
any occurrence which is, or with notice or the lapse of time or both would
become, an Event of Default; provided that any occurrence which would become an
Event of Default pursuant to Section 7.01(c) hereof shall not be deemed a
default (but may nonetheless constitute an Event of Default upon notice and
lapse of time as provided in Section 7.01(c)) for purposes of the Indenture
until the expiration of five days after such occurrence shall first become
known, or in the exercise of reasonable care should become known, to an officer
of the Company. Notwithstanding the proviso clause of the immediately
preceding sentence, for purposes of Section 8.08 hereof, the term "default"
shall mean any occurrence which is, or with notice of the lapse of time or both
would become, an Event of Default.
Guarantee:
The term "Guarantee" shall have the meaning specified in Section 3.01.
Guarantor:
The term "Guarantor" shall mean FINA, INC., a Delaware corporation,
and, subject to the provisions of Article Three, shall also include its
successors and assigns.
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<PAGE> 20
Holder:
The term "holder", "holder of Senior Debt Securities", or other
similar term, shall mean any person in whose name a Senior Debt Security shall
at the time be registered in the Senior Debt Security Register kept for that
purpose.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as so amended or
supplemented.
Indebtedness:
With respect to any person, the term "Indebtedness" shall mean,
without duplication:
(a) (i) the principal of and premium, if any, and interest,
if any, on indebtedness for money borrowed of such person,
indebtedness of such person evidenced by bonds, notes, debentures or
similar obligations, and any guaranty by such person of any
indebtedness for money borrowed or indebtedness evidenced by bonds,
notes, debentures or similar obligations of any other person, whether
any such indebtedness or guaranty is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred, (ii) the
principal of and premium, if any, and interest, if any, on
indebtedness incurred, assumed or guaranteed by such person in
connection with the acquisition by it or any of its subsidiaries of
any other business, properties or other assets, and (iii) lease
obligations which such person capitalized in accordance with Statement
of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect;
(b) Any other indebtedness of such person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein, and any guaranty,
endorsement or other contingent obligation of such person in respect
of any indebtedness of another that is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such
person;
(c) Obligations of such person under interest rate, commodity
or currency swaps, caps, collars, options and similar arrangements;
(d) Obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction; and
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<PAGE> 21
(e) Any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness
in clauses (a) through (d) above.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 15.07, if and to the extent required by the provisions
thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who shall be satisfactory to the Trustee and may be counsel to
the Company. Each such opinion shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Principal Property:
The term "Principal Property" shall mean any parcel of real property
and related fixtures or improvements owned by the Guarantor or any Restricted
Subsidiary and located in the United States, the aggregate book value of which,
less accumulated depreciation, on the date of determination exceeds $50
million, other than any such real property and related fixtures or improvements
which, as determined in good faith by the Board of Directors of the Guarantor,
is not of material importance to the total business conducted by the Guarantor
and its subsidiaries taken as a whole.
Private Placement Notes:
The term "Private Placement Notes" shall mean the Company's
$117,000,000 principal amount of 6.64% Series A Senior Notes due May 1, 2000;
$125,000,000 principal amount of 7.13% Series B Senior Notes due May 1, 2002;
and $33,000,000 principal amount of Series C Senior Notes due May 1, 2003.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the chairman or the vice-chairman of the board of directors, the
chairman of the executive committee of the board of directors, the president,
any vice president, any second or assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer or trust officer, or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate
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<PAGE> 22
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean (a) any Subsidiary other
than an Unrestricted Subsidiary, and (b) any Subsidiary which was an
Unrestricted Subsidiary but which, subsequent to the date hereof, is designated
by the Guarantor (by Board Resolution) to be a Restricted Subsidiary; provided,
however, that the Guarantor may not designate any such Subsidiary to be a
Restricted Subsidiary if the Guarantor would thereby breach any covenant or
agreement herein contained (on the assumption that any outstanding Indebtedness
of such Subsidiary was incurred at the time of such designation).
Sale and Leaseback Transaction:
The term "Sale and Leaseback Transaction" shall mean any arrangement
with any person providing for the leasing by the Guarantor or any Restricted
Subsidiary of any Principal Property which has been or is to be sold or
transferred by the Guarantor or such Restricted Subsidiary to such person;
provided, however, that "Sale and Leaseback Transaction" shall not include such
arrangements that were existing on the date of this Indenture or at the time
any person owning a Principal Property shall become a Restricted Subsidiary.
Senior Debt Security; "outstanding" with reference to Senior Debt Securities:
The term "Senior Debt Security" or "Senior Debt Securities" shall mean
a Senior Debt Security or Senior Debt Securities, as the case may be,
consisting of bonds, debentures, notes and/or other unsecured evidences of
indebtedness, authenticated and delivered under this Indenture.
The term "outstanding", when used with reference to Senior Debt
Securities, shall, subject to the provisions of Section 9.04, mean, as of any
particular time, all Senior Debt Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Senior Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Senior Debt Securities called for payment or redemption
for which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent), provided
that, if such Senior Debt Securities are to be redeemed, notice of
such redemption shall have been given as in Article Four provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
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<PAGE> 23
(c) Senior Debt Securities in lieu of or in substitution for
which other Senior Debt Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08.
Senior Debt Security Register; Senior Debt Security Registrar:
The terms "Senior Debt Security Register" and "Senior Debt Security
Registrar" shall have the respective meanings specified in Section 2.06.
Series:
The term "Series" shall mean a separate series of Senior Debt
Securities issued pursuant to this Indenture and the related Series Supplement.
Series Supplement or Supplement:
The term "Series Supplement" or "Supplement" shall mean an indenture
supplemental to this Indenture, in substantially the form attached hereto as
Exhibit A, that authorizes a particular Series.
Subsidiary
The term "Subsidiary" shall mean any corporation of which the
Guarantor, or the Guarantor and one or more Subsidiaries, or any one or more
Subsidiaries, directly or indirectly own voting securities entitling any one or
more of the Guarantor and its Subsidiaries to elect a majority to the
directors, either at all times or, so long as there is no default or
contingency which permits the holders of any other class or classes of
securities to vote for the election of one or more directors.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided or unless the context otherwise requires) shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed.
Trustee:
The term "Trustee" shall mean Texas Commerce Bank National
Association, and, subject to the provisions of Article Eight, shall also
include its successors and assigns.
Unrestricted Subsidiary:
The term "Unrestricted Subsidiary" shall mean (a) any Subsidiary
acquired or organized after the date hereof, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to any Restricted
Subsidiary, and (b) any Subsidiary substantially all the assets of which
consist of stock or other
-7-
<PAGE> 24
securities of a Subsidiary or Subsidiaries of the character described in clause
(a) of this paragraph, unless and until such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary".
ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. The Senior Debt Securities and the Trustee's
certificate of authentication are to be substantially in the forms set forth in
this Section 2.01, with such appropriate insertions, omissions, substitutions,
amendments, changes and other variations as are required or permitted by this
Indenture or any Series Supplement, 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 on which the
Senior Debt Securities may be listed or as may, consistently herewith, be
determined by the officers executing such Senior Debt Securities as evidenced
by their execution of the Senior Debt Securities.
The definitive Senior Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by any Series
Supplement or the rules of any securities exchange on which the Senior Debt
Securities may be listed, all as determined by the officers executing such
Senior Debt Securities, as evidenced by their execution of such Senior Debt
Securities.
The form of Senior Debt Securities and the Trustee's certificate of
authentication are to be substantially in the following forms, respectively:
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<PAGE> 25
[FORM OF FACE OF SENIOR DEBT SECURITY]
No. ____________ [$]______________ CUSIP____________
FINA OIL AND CHEMICAL COMPANY
[SENIOR DEBT SECURITY]
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY
FINA, INC.
FINA OIL AND CHEMICAL COMPANY, 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
___________________________ __________________ or registered assigns, the
principal sum of _____________________ [Currency of Issue and Payment] on _
_________________, ____, in such coin or currency of the [Country Whose
Currency is Designated] as at the time of payment is legal tender for the
payment of public and private debts, and to pay interest on said principal sum
at the rate per annum specified in the title of this [Senior Debt Security],
with respect to interest accrued from [insert accrual date] to the date of the
current interest payment, to the registered holder hereof as of the close of
business on the ______ day of the month preceding the month in which an
interest payment is due, in like coin or currency, all at any office or agency
of the Company to be maintained by the Company pursuant to Section 5.02 of the
Indenture, which at all times shall include an office or agency in the City of
Dallas, Texas, such interest payments to be made, except as otherwise provided
in the Indenture hereinafter referred to, [insert interest frequency] on
[insert payment dates], in each year, commencing ____________, 199__, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company by
check mailed on or before such payment date to the address of the person
entitled thereto as such address shall appear on the Senior Debt Security
Register.
This [Senior Debt Security] shall be deemed to be a contract made
under the laws of the State of Texas, and for all purposes shall be construed
in accordance with the laws of said State.
Additional provisions of this [Senior Debt Security] are contained on
the reverse hereof and such provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Senior Debt Security] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under the Indenture.
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<PAGE> 26
IN WITNESS WHEREOF, FINA OIL AND CHEMICAL COMPANY has caused this
instrument to be signed in its corporate name by the facsimile signature of its
President or a Vice President and by its Secretary or an Assistant Secretary by
his signature or a facsimile thereof, and a facsimile of its corporate seal to
be affixed hereunto or imprinted hereon.
Dated:
FINA OIL AND CHEMICAL COMPANY
[Seal]
By ________________________________
[Title]
ATTEST:
__________________________
[Title]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Senior Debt Securities] to which reference is made
in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Trustee
By ________________________________
Authorized Signature
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<PAGE> 27
[FORM OF REVERSE OF SENIOR DEBT SECURITY]
FINA OIL AND CHEMICAL COMPANY
This [Senior Debt Security] is one of a duly authorized issue of Senior
Debt Securities of the Company issued and to be issued in one or more Series,
and this [Senior Debt Security] is one of the Series of Senior Debt Securities
designated as its [Senior Debt Securities] (herein referred to as the [Senior
Debt Securities]), limited to the aggregate principal amount of
_____________________________________________ Million [Currency of Issue and
Payment] ([$]_ _________________), all issued or to be issued under and
pursuant to an indenture dated as of __________________, 199__ (herein referred
to as the "Indenture"), duly executed and delivered by the Company to Texas
Commerce Bank National Association (referred to herein as the "Trustee"), to
which Indenture and all indentures supplemental thereto (including the Series
Supplement dated as of ________, 199__ which authorizes the [Senior Debt
Securities]) reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Senior Debt Securities of each
particular Series and the terms upon which the Senior Debt Securities of each
Series are, and are to be, authenticated and delivered. All terms used in this
Senior Debt Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. As provided in the Indenture, the Senior
Debt Securities are issuable in Series which may vary as in the Indenture
provided or permitted.
[The indebtedness evidenced by the [Senior Debt Securities] is, to the
extent and in the manner provided in the Indenture and the Series Supplement,
senior in right of payment to certain indebtedness of the Company.]
As provided in the Indenture and subject to certain limitations set
forth therein, the obligations of the Company under the Indenture are
unconditionally guaranteed on an unsecured basis pursuant to the Guarantee
endorsed hereon by FINA, Inc., as Guarantor. The Indenture provides that the
Guarantor shall be released from the Guarantee and that the holder hereof shall
have no further claim against the Guarantor upon compliance with certain
conditions.
In case an Event of Default shall have occurred and be continuing with
respect to the [Senior Debt Securities], the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and its consequences
may be waived by the holders of a majority in aggregate principal amount of the
[Senior Debt Securities] then outstanding. An Event of Default with respect to
the Senior Debt Security of any other Series issued under the Indenture,
including
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<PAGE> 28
the failure to make any payment of principal or interest with respect thereto
when and as due, will not be an Event of Default with respect to the [Senior
Debt Securities].
The Indenture contains provisions permitting the Company, the Guarantor
and the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the [Senior Debt Securities] at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the [Senior Debt
Securities]; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any [Senior Debt Securities], or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable on the redemption thereof,
without the consent of the holder of each [Senior Debt Security] so affected,
or (ii) reduce the aforesaid percentage of [Senior Debt Securities], the
consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of all [Senior Debt Securities]
then outstanding. It is also provided in the Indenture that the holders of a
majority in aggregate principal amount of the [Senior Debt Securities] at the
time outstanding may on behalf of the holders of all the [Senior Debt
Securities] waive any past default under the Indenture and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the [Senior Debt Securities]. Any such consent or waiver
by the holder of this [Senior Debt Security] (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this [Senior Debt Security] and of any [Senior Debt
Security] issued in exchange or substitution herefor, whether or not any
notation of such consent or waiver is made upon this [Senior Debt Security].
No reference herein to the Indenture and no provision of this [Senior
Debt Security] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this [Senior Debt Security] at the place, at
the respective times, at the rate and in the currency herein prescribed.
The [Senior Debt Securities] are issuable in registered form in
denominations of $_____ and any integral multiple of $_____.
[As provided in the Indenture, the [Senior Debt Securities] may be
redeemed, at the option of the Company, as a whole or from time to time in part
(otherwise than through the operation of the Sinking Fund), at any time prior
to maturity, upon the notice referred to below, [on terms specified in the
Series Supplement]. Notwithstanding the foregoing, no such redemption may be
made prior to ___________, 19__, directly or indirectly from or in anticipation
of moneys borrowed by the Company at an interest cost
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<PAGE> 29
which is less than [interest rate of the [Senior Debt Securities] as specified
in the Series Supplement].]
[The [Senior Debt Securities] are entitled to the benefits of a Sinking
Fund, operation of the provisions of which is required to begin on
_________________, 19__ as provided in the Series Supplement. The [Senior Debt
Securities] are subject to redemption (on notice as set forth below) through
the operation of the Sinking Fund at a redemption price equal to the principal
amount thereof, together with accrued interest to the date fixed for
redemption.]
Notice of redemption shall be given by mailing by first-class mail a
notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to the holders of [Senior Debt Securities] to be
redeemed to their last addresses as they shall appear upon the Senior Debt
Security Register for the [Senior Debt Securities], all as provided in the
Indenture.
Upon due presentment for registration of transfer of this [Senior Debt
Security] at any designated office or agency of the Company to be maintained by
the Company pursuant to Section 5.02 of the Indenture, which at all times shall
include an office or agency in the City of Dallas, Texas, a new [Senior Debt
Security] or [Senior Debt Securities] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith, and the [Senior Debt Securities] may in like manner be exchanged for
one or more new [Senior Debt Securities] of other authorized denominations but
of the same aggregate principal amount.
The Company, the Trustee, any paying agent and any Senior Debt Security
Registrar (as defined in the Indenture) for the [Senior Debt Securities] may
deem and treat the registered holder hereof as the absolute owner of this
[Senior Debt Security] (whether or not this [Senior Debt Security] shall be
overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any such Senior Debt Security
Registrar), for the purpose of receiving payment hereof or on account hereof
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent nor any such Senior Debt Security Registrar shall be affected by
any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this [Senior Debt Security], or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Indenture, any indenture supplemental thereto or the Guarantee, against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, the Guarantor or of any successor corporation of
either, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all
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<PAGE> 30
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
____________________
SECTION 2.02. The aggregate principal amount of Senior Debt Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Senior Debt Securities may, at the election of and as authorized by
the Board of Directors, be issued in one or more Series, and a particular
Series shall be designated as the Board of Directors may determine. Each
Senior Debt Security shall bear upon its face the designation so selected for
the Series for which it belongs. All Senior Debt Securities of the same Series
shall be identical in all respects except for the denominations thereof.
Each Series of Senior Debt Securities shall be created by a Series
Supplement authorized by the Board of Directors in establishing the terms and
provisions of such Series. The several Series may differ as between Series, in
respect of any of the following matters: (1) designation of the Series; (2)
the maximum aggregate principal amount of the Series; (3) accrual date; (4)
interest rate; (5) stated maturity of principal; (6) payment dates; (7)
authorized denominations; (8) currency of issue and payment; (9) redemption
dates; (10) provisions relating to redemption of the related Series on an
optional or mandatory basis by the Company or pursuant to a sinking fund; and
(11) any other provisions expressing or referring to the terms and conditions
upon which the Senior Debt Securities of that Series are to be issued under
this Indenture which are not in conflict with the provisions of this Indenture,
or any provisions expressly amending or modifying the terms of this Indenture
with respect to the Series of Senior Debt Securities to which such Series
Supplement relates. Each Series of Senior Debt Securities shall rank equally
in right of payment with other outstanding Series of Senior Debt Securities.
In authorizing issuance of any Series, the Board of Directors shall
determine and specify all matters in respect of the Senior Debt Securities of
such Series set forth in clauses (1) to (11) inclusive and shall also determine
and specify the form of Senior Debt Securities of such Series.
SECTION 2.03. The Senior Debt Securities shall be executed by the
Company and be delivered to the Trustee for authentication, and the Trustee
shall thereupon, or from time to time thereafter, authenticate and deliver said
Senior Debt Securities to and upon the written order of the Company, signed by
its President or a Vice President and by its Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary, without any further action by the Company.
SECTION 2.04. The Senior Debt Securities shall be issuable as
registered Senior Debt Securities without coupons in denominations prescribed
by the terms of the Series Supplement creating the
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particular Series. Each Senior Debt Security shall be dated the date of its
authentication, shall bear interest from the applicable date, and shall be
payable on the dates, as prescribed by the terms of the Series Supplement
creating the particular Series.
The person in whose name any Senior Debt Security is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment date (subject to the provisions of Article Four in the
case of any Senior Debt Security or Senior Debt Securities, or portion thereof,
redeemed on a date subsequent to the record date and on or prior to such
interest payment date), except if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the persons in whose names outstanding
Senior Debt Securities are registered on a subsequent special record date
established by notice given by mail by or on behalf of the Company to the
holders of Senior Debt Securities not less than 15 days preceding such special
record date, which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment. The term "record date" as used with
respect to any interest payment date shall mean the day of the calendar month
prescribed by the terms of the Series Supplement creating the particular Series
preceding the day on which such interest payment date falls or, in the case of
defaulted interest, the close of business on any special record date
established as hereinabove provided.
The principal of, and premium, if any, and interest on, the Senior Debt
Securities shall be payable at the office or agency of the Company designated
for that purpose in the City of [Dallas, Texas,] and any other office or agency
of the Company designated for that purpose; provided, however, that interest
may be payable at the option of the Company by check mailed to the address of
the person entitled thereto as such address shall appear on the Senior Debt
Security Register.
SECTION 2.05. The Senior Debt Securities shall be signed manually or by
facsimile signature on behalf of the Company by its President or a Vice
President under its corporate seal attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Senior Debt
Securities.
Only such Senior Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinabove recited, manually executed
by the Trustee, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any Senior
Debt Security executed by the Company shall be conclusive evidence that the
Senior Debt Security so authenticated has been duly authenticated and delivered
hereunder.
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In case any officer of the Company who shall have signed any of the
Senior Debt Securities shall cease to be such officer before the Senior Debt
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Senior Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Senior Debt Securities had not ceased to be such officer
of the Company; and any Senior Debt Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Senior
Debt Security, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not an officer.
SECTION 2.06. The Senior Debt Securities may be exchanged for a like
aggregate principal amount of Senior Debt Securities of other authorized
denominations of a like Series. Senior Debt Securities to be exchanged shall
be surrendered at any office or agency to be maintained by the Company in
accordance with the provisions of Section 5.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Senior
Debt Security or Senior Debt Securities which the holder making the exchange
shall be entitled to receive.
The Company shall keep or cause to be maintained at said office or
agency a register (herein sometimes referred to as the "Senior Debt Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Senior Debt Securities and shall register
the transfer of Senior Debt Securities as in this Article Two provided. For
the purposes of registration, exchange or registration of transfer of Senior
Debt Securities, the Trustee is hereby appointed Senior Debt Security
Registrar. Upon surrender for registration of transfer of any Senior Debt
Security at said office or agency, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Senior Debt Security or Senior Debt Securities in a like aggregate
principal amount and of a like Series. At all reasonable times the Senior Debt
Security Register shall be open for inspection by the Trustee. No transfer of
any Senior Debt Security shall be valid unless made at said office or agency.
All Senior Debt Securities presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Company and the Trustee, duly executed by
the registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Senior Debt Securities, or issue of new Senior Debt Securities in
case of partial redemption, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
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For the Senior Debt Securities of a Series which has a redemption
provision, the Company shall not be required (i) to issue, register the
transfer of, or exchange any Senior Debt Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Senior Debt Securities selected for redemption and ending on the day of
such mailing, or (ii) to register the transfer of or exchange any Senior Debt
Security so selected for redemption in whole or in part, except the unredeemed
portions of Senior Debt Securities being redeemed in part.
SECTION 2.07. Pending the preparation of definitive Senior Debt
Securities, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Senior Debt Securities (printed, lithographed or
typewritten), of any denomination, and substantially in the form of the
definitive Senior Debt Securities, but with such omissions, insertions and
variations as may be appropriate for temporary Senior Debt Securities, all as
may be determined by the Company. Temporary Senior Debt Securities may be
issued without a recital of any specific redemption prices as prescribed by the
terms of the Series Supplement creating the particular Series and may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Senior Debt Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Senior Debt Securities.
The Company shall execute and furnish definitive Senior Debt Securities of the
same Series as soon as practicable, and thereupon any or all temporary Senior
Debt Securities of such Series may be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Senior Debt Securities a like aggregate
principal amount of definitive Senior Debt Securities of the same Series.
Until so exchanged, the temporary Senior Debt Securities of such Series shall
be entitled to the same benefits under this Indenture as definitive Senior Debt
Securities of the same Series authenticated and delivered hereunder.
SECTION 2.08. In case any temporary or definitive Senior Debt Security
shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and the Trustee shall authenticate and deliver, a new
Senior Debt Security of a like Series, in exchange and substitution for the
mutilated Senior Debt Security or in lieu of and substitution for the Senior
Debt Security destroyed, lost or stolen. In every case, the applicant for a
substituted Senior Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Senior Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Senior
Debt Security and deliver the same upon the request or authorization of the
Company. Upon the issuance of any
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substituted Senior Debt Security, 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 connected therewith, including fees and
expenses of the Trustee. In case any Senior Debt Security which has matured or
is about to mature or has been called for redemption shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substitute
Senior Debt Security of a like Series, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Senior Debt
Security) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as may be required by them to save each
of them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Senior Debt Security and of the ownership thereof.
Every substituted Senior Debt Security issued pursuant to the provisions
of this Section 2.08 upon evidence that any Senior Debt Security is destroyed,
lost or stolen shall, with respect to such Senior Debt Security, constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Senior Debt Security shall be found at any time, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Senior Debt Securities of the same Series duly issued
hereunder. All Senior Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Senior Debt
Securities, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.09. All Senior Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be cancelled by it, and no Senior Debt
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. On request of the Company, the Trustee
shall deliver to the Company cancelled Senior Debt Securities held by the
Trustee; provided, however, that the Trustee may at any time destroy any
cancelled Senior Debt Securities and deliver to the Company a certificate of
such destruction. If the Company shall acquire any of the Senior Debt
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Senior Debt Securities
unless and until the same are delivered to the Trustee or surrendered to the
Trustee for cancellation.
SECTION 2.10. Nothing in this Indenture or in the Senior Debt
Securities, expressed or implied, shall give or be construed to
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give to any person, firm or corporation, other than the parties hereto and the
holders of the Senior Debt Securities of a Series, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the holders of the Senior Debt Securities of such Series.
ARTICLE THREE.
GUARANTEE OF FINA, INC.
SECTION 3.01. Unconditional Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Senior Debt Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of
such Holder, the due and punctual payment of the Company's obligations under
this Indenture (the "Guarantee"). In case of the failure of the Company
punctually to perform or make any such payment, the Guarantor hereby agrees to
cause such payment and performance to be made punctually. All payments
pursuant to the Guarantee by the Guarantor shall be pari passu in right of
payment with all unsecured and unsubordinated indebtedness of the Guarantor.
SECTION 3.02. Execution and Authentication of Guarantee. To further
evidence the Guarantee set forth in Section 3.01, the Guarantor and the Company
hereby agree that a notation relating to such Guarantee substantially in the
form of Exhibit B shall be endorsed on each Senior Debt Security authenticated
and delivered by the Trustee and executed on behalf of the Guarantor by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any such officer on the Senior Debt
Securities may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of the Senior Debt Security on
which such Guarantee is endorsed or did not hold such offices at the date of
such Guarantee.
The delivery of any Senior Debt Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that the Guarantee set forth in Section 3.01 shall remain in full force
and effect notwithstanding any failure to endorse a Guarantee on any Senior
Debt Security.
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SECTION 3.03. Release of Guarantee.
(a) Upon the consummation of a merger or consolidation of the Guarantor
with or into the Company, or of the Company with or into the Guarantor, in
either case in accordance with the terms of Section 12.01 hereof, the Trustee
shall, at the request of the Company or the Guarantor, execute any documents
reasonably required and reasonably acceptable in form and substance to the
Trustee to evidence the extinguishment of the Guarantee.
(b) Concurrently with the legal defeasance of the Senior Debt
Securities of any Series or the covenant defeasance of the Senior Debt
Securities of any Series under Article Thirteen hereof, the Guarantor shall be
released from all of its obligations under the Guarantees endorsed on the
Senior Debt Securities of such Series and under this Article Three, without any
action on the part of the Trustee or any Holder of the Senior Debt Securities
of such Series.
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND.
SECTION 4.01. Subject to any contrary provisions set forth in the
related Series Supplement, the Company may, at its option, at any time prior to
maturity, redeem all, or from time to time any part, of the Senior Debt
Securities of a Series, otherwise than through the operation of the Sinking
Fund provided for in this Article Four, at the redemption prices and upon the
conditions, if any, applicable thereto, as permitted by the related Series
Supplement for redemption otherwise than through the operation of the Sinking
Fund. The election of the Company to exercise such option shall be evidenced
by an Officers' Certificate.
Unless otherwise specified in the related Series Supplement, the Company
may not, however, redeem any of the Senior Debt Securities of a Series pursuant
to such option prior to the time prescribed by the terms of the Series
Supplement creating the particular Series, directly or indirectly from or in
anticipation of money borrowed having an interest cost to the Company of less
than the interest rate applicable to the Senior Debt Securities of such Series.
In the event the Company shall optionally redeem any Senior Debt Securities of
a Series prior to such time, the Company shall deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with this
requirement.
SECTION 4.02. In case the Company shall desire to exercise such right
to redeem all or, as the case may be, any part of the Senior Debt Securities in
accordance with the right reserved so to do, it shall so notify the Trustee in
writing and it shall give notice of such redemption to holders of the Senior
Debt Securities to be redeemed as hereinafter in this Section 4.02 provided.
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Notice of redemption shall be given to the holders of Senior Debt
Securities to be redeemed as a whole or in part by mailing by first-class mail
a notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Senior Debt Security Register, but failure to give such notice by mail to the
holders of any Senior Debt Security, or any defect therein, shall not affect
the validity of the proceedings for the redemption of any other Senior Debt
Security.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Senior Debt Securities are to be
redeemed, and shall state that payment of the redemption price of the Senior
Debt Securities to be redeemed will be made at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 5.02,
upon presentation and surrender of such Senior Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon will cease to accrue.
If less than all the Senior Debt Securities are to be redeemed, the notice of
redemption shall specify the Senior Debt Securities to be redeemed as a whole
or in part. In case any Senior Debt Security is to be redeemed in part only,
the notice which relates to such Senior Debt Security shall state the portion
of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Senior Debt Security, a new
Senior Debt Security or Senior Debt Securities of a like Series in principal
amount equal to the unredeemed portion thereof will be issued.
If less than all the Senior Debt Securities of a Series are to be
redeemed, the Company shall give the Trustee at least 30 days' written notice
in advance of the date fixed for redemption as to the aggregate principal
amount of Senior Debt Securities of such Series to be redeemed, and thereupon
the Trustee shall select, by random lot, the particular Senior Debt Securities
of such Series to be redeemed in whole or in part and shall thereafter promptly
notify the Company in writing of the numbers of the Senior Debt Securities of
such Series or portions thereof to be redeemed. The selection of Senior Debt
Securities to be redeemed may provide for the selection of portions (equal to
$1,000 (unless otherwise provided in the related Series Supplement) or a
multiple thereof) of the principal of Senior Debt Securities of a denomination
larger than $1,000 (unless otherwise provided in the related Series
Supplement). The Senior Debt Securities (or portions thereof) so selected
shall be deemed duly designated for redemption for all purposes of this
Indenture. For the purposes of such selection, the Company will close the
Senior Debt Security Register with respect to such Series for the purposes of
exchange and transfer of Senior Debt Securities of such Series, for a period
not exceeding 15 days.
SECTION 4.03. If the giving of notice of redemption shall have been
completed as above provided, the Senior Debt Securities or
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portions of Senior Debt Securities specified in such notice shall become due
and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after such date fixed for redemption (unless the
Company shall default in the payment of such Senior Debt Securities at the
redemption price, together with interest accrued to the date fixed for
redemption) interest on the Senior Debt Securities or portions of Senior Debt
Securities so called for redemption shall cease to accrue. On presentation and
surrender of such Senior Debt Securities at the place stated in said notice,
the said Senior Debt Securities shall be paid and redeemed by the Company at
the applicable redemption price, together with interest accrued to the date
fixed for redemption.
Upon presentation of any Senior Debt Security which is redeemed in part
only, the Company shall execute, and the Trustee shall authenticate and
deliver, at the expense of the Company, a new Senior Debt Security or Senior
Debt Securities of a like Series in principal amount equal to the unredeemed
portion of the Senior Debt Security so presented. Prior to the date fixed for
the redemption of any Senior Debt Securities as provided in this Article Four,
the Company shall deposit in trust with the Trustee or with any paying agent,
or if and to the extent that it shall be acting as its own paying agent, the
Company shall set aside, segregate and hold in trust, funds sufficient to
redeem the Senior Debt Securities or portions thereof to be redeemed on such
date, at the applicable redemption price, together with interest accrued to the
date fixed for redemption.
SECTION 4.04. As and for a Sinking Fund for the retirement of Senior
Debt Securities of a Series, if as set forth in the related Series Supplement
the Company so elects to include a Sinking Fund obligation in the terms of the
Senior Debt Securities of a particular Series, the Company covenants that on or
before the applicable date or dates set forth in the Series Supplement, it will
pay to the Trustee a sum in cash sufficient to retire by redemption at the
Sinking Fund redemption price the principal amount of the Senior Debt
Securities of such Series on the date as prescribed by the terms of the Series
Supplement creating the particular Series; provided, however, that in any such
year in which such day is not a business day, such payment shall be made to the
Trustee on the last business day preceding such day. In any year, the Company
may, at its sole option, increase the payment required to be made pursuant to
this Section 4.04 for such year by an amount as prescribed by the terms of such
Series Supplement; provided that such increase shall be an integral multiple of
$1,000 (unless otherwise provided in the related Series Supplement).
All cash paid to the Trustee pursuant to the provisions of this Section
4.04 shall be applied in accordance with the provisions of this Article Four.
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SECTION 4.05. In lieu of making all or any part of any mandatory
Sinking Fund payment as required pursuant to Section 4.04 in cash, the Company
may (a) deliver to the Trustee for cancellation Senior Debt Securities of such
Series theretofore issued and acquired by the Company at any time prior to the
first day of the month next preceding the due date of such payment and not
theretofore made the basis for the reduction of a Sinking Fund payment, or (b)
deliver to the Trustee an Officers' Certificate setting forth the principal
amount of any Senior Debt Securities of such Series theretofore redeemed and
paid pursuant to the provisions of this Article Four (otherwise than through
the operation of the mandatory Sinking Fund), or which have been duly called
for redemption (otherwise than through the operation of the mandatory Sinking
Fund) and the redemption price of which, together with the accrued interest
thereon, shall have been deposited in trust for that purpose, as in this
Article Four provided, and in either case not theretofore made the basis of the
reduction of a Sinking Fund payment; and in each such case the principal amount
of Senior Debt Securities of such Series required by Section 4.04 to be
redeemed shall be reduced to the extent of the principal amount of the Senior
Debt Securities of such Series so delivered or referred to in such certificate.
SECTION 4.06. On or before the applicable date specified in the Series
Supplement of each year in which the Company is obligated to make a Sinking
Fund payment, the Company shall deliver to the Trustee:
(a) An Officer's Certificate stating:
(i) the manner in which the Company will fulfill its
Sinking Fund obligation under this Article Four for that year;
(ii) the amount of cash, if any, which the Company
will pay to the Trustee on or before the next succeeding
Sinking Fund payment date;
(iii) the principal amount of Senior Debt Securities
of such Series, if any, which the Company will surrender to
the Trustee for cancellation in lieu of the payment of cash,
and that such Senior Debt Securities were theretofore issued
and acquired by the Company prior to said Sinking Fund payment
date and have not theretofore been made the basis for the
reduction of a Sinking Fund payment; and
(iv) the principal amount of any Senior Debt
Securities of such Series set forth in a certificate of the
character described in clause (b) of Section 4.05, if any such
certificate is to be concurrently delivered to the Trustee;
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(b) The Senior Debt Securities, if any, referred to in Section
4.06(a)(iii); and
(c) The certificate, if any, referred to in Section 4.06(a)(iv).
SECTION 4.07. On or before the applicable date specified in the
Series Supplement or, if such day is not a business day, on the last business
day preceding such date of each year in which the Company is obligated to make
a Sinking Fund payment, the Company shall pay to the Trustee the amount of
cash, if any, payable on or before such Sinking Fund payment date, after giving
credit for the principal amount of any Senior Debt Securities delivered
pursuant to clause (a) of Section 4.05 or referred to in any certificate
delivered pursuant to clause (b) of Section 4.05, in respect of such Sinking
Fund payment date.
SECTION 4.08. In the event that the amount of cash specified in the
certificate given pursuant to Section 4.06, plus the amount, if any, of cash
then held pursuant to Section 4.10, is in excess of one percent of the required
sinking fund payment, the Trustee shall, as soon as practicable after the
receipt of such certificate, take the action herein specified to call for
redemption, at the Sinking Fund redemption price, on the next succeeding
Sinking Fund payment date, an amount of Senior Debt Securities of such Series
sufficient to exhaust such funds as nearly as may be.
SECTION 4.09. The Senior Debt Securities to be redeemed from time to
time as provided in Section 4.04 or Section 4.08 shall be selected by the
Trustee for redemption in the manner provided in Section 4.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the call of such Senior
Debt Securities, all in the manner and with the effect in this Article Four
specified, except that, in addition to the matters required to be included in
such notice by Section 4.02, such notice shall also state that the Senior Debt
Securities therein designated for redemption are to be redeemed through
operation of the Sinking Fund. Such Senior Debt Securities shall be redeemed
and paid in accordance with such notice in the manner and with the effect
provided in Sections 4.02 and 4.03.
Senior Debt Securities redeemed through operation of the Sinking Fund
are to be redeemed at the redemption price prescribed by the terms of the
Series Supplement creating the particular Series for redemption through
operation of the Sinking Fund, such price being sometimes referred to herein as
the Sinking Fund redemption price.
SECTION 4.10. In the event that at the time of the receipt of the
Officers' Certificate required by Section 4.06 the sum of the amount of cash
required to be paid to the Trustee pursuant to
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Section 4.07 and the amount of cash then in the hands of the Trustee in the
Sinking Fund and not required for payment of Senior Debt Securities previously
called for redemption or purchased through operation of the Sinking Fund, is
one percent of the amount of the required Sinking Fund payment or less, such
moneys shall not, unless requested by the Company, in said Officers'
Certificate, be applied to the redemption of Senior Debt Securities, but shall
be retained by the Trustee in the manner directed by the Company in writing and
added to the Sinking Fund payment to be made in cash on the next succeeding
Sinking Fund payment date, or, upon request of the Company, shall be applied by
the Trustee, to the extent practicable, prior to the next succeeding Sinking
Fund payment date to the purchase of Senior Debt Securities of such Series, by
public or private purchase in the open market or otherwise, at prices
(excluding accrued interest and brokerage commissions) not exceeding the
Sinking Fund redemption price.
SECTION 4.11. All Senior Debt Securities surrendered to or purchased
by the Trustee, pursuant to the provisions of this Article Four, shall be
forthwith cancelled by it, and at the written direction of the Company, such
Senior Debt Securities shall be disposed of by the Trustee, which shall deliver
its certificate of disposition thereof to the Company.
SECTION 4.12. The Trustee shall not redeem any Senior Debt Securities
of a Series with Sinking Fund moneys or mail any notice of redemption of Senior
Debt Securities of a Series during the continuance of any Event of Default with
respect to the Senior Debt Securities of such Series, except that where notice
of redemption of any Senior Debt Securities shall have been mailed prior to the
occurrence of such Event of Default, the Trustee shall redeem such Senior Debt
Securities provided funds are deposited with it for such purpose. Except as
aforesaid, any moneys in the Sinking Fund at such time, and any moneys
thereafter paid into the Sinking Fund, shall during the continuance of an Event
of Default be held as security for the payment of all the Senior Debt
Securities; provided, however, that in case such Event of Default shall have
been waived as permitted by this Indenture or otherwise cured, such moneys
shall thereafter be held and applied in accordance with the provisions of this
Article Four.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTOR.
SECTION 5.01. The Company will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Senior
Debt Securities at the place, at the respective times and in the manner
provided in the Senior Debt Securities.
SECTION 5.02. As long as any of the Senior Debt Securities remain
outstanding, the Company and the Guarantor will maintain in
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the City of Dallas, Texas, an office or agency where the Senior Debt Securities
may be presented for registration of transfer and exchange as in this Indenture
provided, and where the Senior Debt Securities may be presented for payment,
and where notices or demands to or upon the Company and the Guarantor in
respect of the Senior Debt Securities or of this Indenture may be served. Such
an office or agency may also be maintained by the Company and the Guarantor, at
their option, in other locations. Until otherwise designated by the Company
and the Guarantor in a written notice to the Trustee, such office or agency for
purposes of registration of transfer and exchange and presentation for payment
shall be the corporate trust office of the Trustee. In case the Company and
the Guarantor shall fail to maintain such office or agency or shall fail to
give such notice of the location or of any change in the location thereof,
notices or demands may be served at the corporate trust offices of the Trustee.
SECTION 5.03. In order to prevent any accumulation of claims for
interest after maturity thereof, the Company will not directly or indirectly
extend or consent to the extension of the time for the payment of any claim for
interest on any of the Senior Debt Securities of a Series and will not directly
or indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims for interest or in any other manner. No claim for
interest, the time of payment of which shall have been so extended or which
shall have been so purchased or funded, shall be entitled, in case of an Event
of Default with respect to the Senior Debt Securities of such Series hereunder,
to the benefit of this Indenture except after the prior payment in full of the
principal of all the Senior Debt Securities of such Series and premiums, if
any, and of all claims for interest not so extended, purchased or funded;
provided, however, that this Section 5.03 shall not apply in any case where an
extension shall be made pursuant to a plan proposed by the Company to the
holders of all the Senior Debt Securities of such Series then outstanding.
SECTION 5.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 8.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 5.05. (a) The Trustee is appointed the initial paying agent.
If the Company shall appoint a paying agent other than the Trustee, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of
this Section 5.05:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, and interest
on the Senior Debt Securities of a Series (whether such sums have been
paid to it by the Company or by any other obligor on the Senior Debt
Securities) in trust for the benefit of the holders of the Senior Debt
Securities of such Series,
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(2) that it will give the Trustee written notice of any
default by the Company (or by any other obligor on the Senior Debt
Securities of any Series) in making any payment of the principal of or
premium, if any, or interest on the Senior Debt Securities of a Series
when the same shall be due and payable, and
(3) that it will, 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.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest on
the Senior Debt Securities of a Series, set aside, segregate and hold in trust
for the benefit of the holders of the Senior Debt Securities of such Series a
sum sufficient to pay such principal and premium, if any, or interest so
becoming due. The Company will promptly notify the Trustee in writing of any
failure by it to take such action or the failure by any other obligor on the
Senior Debt Securities of such Series to make any payment of the principal of
or premium, if any, or interest on the Senior Debt Securities of such Series
when the same shall be due and payable.
(c) Anything in this Section 5.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 5.05 is subject
to the provisions of Section 13.03 and 13.04.
SECTION 5.06. On or before the 90th day after the end of the
Company's fiscal year beginning with the fiscal year ended December 31, 199__,
the Company will file with the Trustee a certificate (which need not comply
with Section 15.07) from its principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture.
SECTION 5.07. So long as any of the Senior Debt Securities are
outstanding, the Guarantor will not, and will not permit any Restricted
Subsidiary to, pledge, mortgage, hypothecate or grant a security interest in,
or permit any mortgage, pledge, security interest or other lien upon, any
property or assets owned by the Guarantor or any Restricted Subsidiary to
secure any Indebtedness, without making effective provision whereby the Senior
Debt
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Securities then outstanding shall (so long as such other Indebtedness shall be
so secured) be equally and ratably secured with any and all such other
Indebtedness and any other indebtedness similarly entitled to be equally and
ratably secured; provided, however, that this restriction shall not apply to
nor prevent the creation or existence of:
(a) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets created at the time of the
acquisition of such property or assets by the Guarantor or any
Restricted Subsidiary or within one year after such time to secure all
or a portion of the purchase price of such property or assets;
(b) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets existing thereon at the time
of the acquisition thereof by the Guarantor or any Restricted
Subsidiary (whether or not the obligations secured thereby are assumed
by the Guarantor or any Subsidiary);
(c) any mortgage, pledge, security interest, lien or
encumbrance upon any property or assets, whenever acquired, of any
corporation or other entity that becomes a Restricted Subsidiary after
the date hereof, provided that (i) the instrument creating such
mortgage, pledge, security interest, lien or encumbrance shall be in
effect prior to the time such corporation or other entity becomes a
Restricted Subsidiary and (ii) such mortgage, pledge, security
interest, lien or encumbrance shall only apply to properties or assets
owned by such corporation or other entity at the time it becomes a
Restricted Subsidiary or thereafter acquired by it from sources other
than the Guarantor or another Restricted Subsidiary;
(d) any mortgage, pledge, security interest, lien or
encumbrance arising from or in connection with a conveyance by the
Guarantor or a Restricted Subsidiary of any production payment with
respect to oil, gas, natural gas, carbon dioxide, sulphur, helium,
coal, metals, minerals, steam, timber or other natural resources;
(e) any mortgage, pledge, security interest, lien or
encumbrance in favor of the Guarantor or any wholly-owned Subsidiary;
(f) any mortgage, pledge, security interest, lien or
encumbrance created or assumed by the Guarantor or a Restricted
Subsidiary in connection with the issuance of debt securities the
interest on which is excludable from gross income of the holder of
such security pursuant to the Internal Revenue Code of 1986, as
amended, for the purpose of financing, in whole or in part, the
acquisition or construction of property or assets to be used by the
Guarantor or a Subsidiary;
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(g) any extension, renewal or refunding of any mortgage,
pledge, security interest, lien or encumbrance permitted by the
foregoing subparagraphs (a) through (f) above on substantially the
same property or assets theretofore subject thereto; or
(h) any mortgage, pledge, security interest, lien or
encumbrance securing any Indebtedness in an amount which, together
with all other Indebtedness secured by a mortgage, pledge, security
interest, lien or encumbrance that is not otherwise permitted by the
provisions of this Section 5.07, does not at the time of the
occurrence of the Indebtedness so secured exceed [15%] of Consolidated
Net Tangible Assets.
In case the Guarantor or any Restricted Subsidiary shall propose to
pledge, mortgage, hypothecate or grant a security interest in any property or
assets owned by the Guarantor or any Restricted Subsidiary to secure any
Indebtedness other than as permitted by subdivisions (a) to (h), inclusive, of
this Section 5.07, the Guarantor will prior thereto give written notice thereof
to the Trustee, and the Guarantor will, or will cause such Restricted
Subsidiary to, prior to or simultaneously with such pledge, mortgage,
hypothecation or grant of security interest, by supplemental indenture executed
to the Trustee (or to the extent legally necessary to another trustee or
additional or separate trustee), in form satisfactory to the Trustee,
effectively secure (for so long as such other Indebtedness shall be so secured)
each Series of Senior Debt Securities then outstanding equally and ratably with
such Indebtedness and with any other indebtedness similarly entitled to be
equally and ratably secured. Such supplemental indenture shall contain the
provisions concerning the possession, control, release and substitution of
mortgaged and pledged property and securities and other appropriate matters
which are required by the Trust Indenture Act of 1939 (as in effect at the date
of execution of such supplemental indenture) to be included in a secured
indenture qualified under the Trust Indenture Act of 1939, and may also contain
such additional and amendatory provisions permitted by the Trust Indenture Act
of 1939 as the Guarantor and the Trustee shall deem advisable or appropriate or
as the Trustee shall deem necessary in connection with such pledge, mortgage,
hypothecation or grant of security interest.
For the purpose of this Section 5.07, the term "security interest"
shall include the interest of the lessor under a lease with a term of three
years or more that should be, in accordance with generally accepted accounting
principles, recorded as a capital lease, and any such lease of property or
assets not acquired from the Guarantor or any Restricted Subsidiary in
contemplation of such lease shall be treated as though the lessee had purchased
such property or assets from the lessor.
SECTION 5.08. The Guarantor will not enter into and will not permit a
Restricted Subsidiary to enter into any Sale and Leaseback Transaction with
respect to any Principal Property owned by the
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Guarantor or such Restricted Subsidiary on the date of this Indenture, unless
(a) such Sale and Leaseback Transaction involves a lease for a term of not more
than three years; (b) such Sale and Leaseback Transaction is between the
Guarantor or such Restricted Subsidiary and a Subsidiary; (c) the Guarantor or
such Restricted Subsidiary would be entitled to incur indebtedness secured by a
mortgage, pledge or other lien or encumbrance on such Principal Property
involved in such Sale and Leaseback Transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Leaseback Transaction pursuant
to clause (h) of Section 5.07 without equally and ratably securing the Senior
Debt Securities of any applicable Series pursuant to such covenant; or (d) the
proceeds of such Sale and Leaseback Transaction are at least equal to the fair
market value thereof (as determined in good faith by the Board of Director of
the Guarantor) and the Guarantor applies an amount equal to the greater of the
net proceeds of such sale or the Attributable Debt with respect to such Sale
and Leaseback Transaction within 180 days of such sale to either (or a
combination of) (i) the retirement (other than the mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of
long-term debt of the Guarantor or a Restricted Subsidiary (other than
long-term debt that is subordinated to the Senior Debt Securities) or (ii) the
purchase, construction or development of other comparable property.
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND
REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee within 60 days after each interest
payment date and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all 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 the Senior Debt
Securities of any Series obtained since the date as of which the next previous
list, if any, was furnished with respect to such Series; but so long as the
Trustee is the Senior Debt Security Registrar no such list shall be required to
be furnished. Any such list may be dated as of a date not more than 15 days
prior to the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 6.02. (a) The Trustee shall preserve, in as current a form as
reasonably practicable, all information as to the names and addresses of the
holders of Senior Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 6.01 and (2) received by it in the
capacity of Senior Debt Security Registrar or of paying agent (if so acting)
hereunder.
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The Trustee may destroy any list furnished to it pursuant to Section 6.01 upon
receipt of a new list so furnished.
(b) In case three or more holders of Senior Debt Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Senior Debt Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other holders of Senior Debt Securities of a particular Series
(in which case the applicants must all hold Senior Debt Securities of such
Series) or with holders of all Senior Debt Securities with respect to their
rights under this Indenture or under the Senior Debt Securities, and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number of
holders of Senior Debt Securities of such Series or all Senior Debt
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 6.02, and as to
the approximate cost of mailing to such holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information the Trustee shall, upon the written request of such
applicants, mail to each holder of such Series or all Senior Debt Securities,
as the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of Senior
Debt Securities of such Series or all Senior Debt Securities, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity for a
hearing upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after
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notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all holders of Senior Debt Securities of such Series or all
Senior Debt Securities, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of the Senior Debt Securities, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Senior Debt Security
Registrar should be held accountable or liable by reason of the disclosure of
any such information as to the names and addresses of the holders of Senior
Debt Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was derived,
that such disclosure shall not be deemed to be a violation of any existing law
or any law hereafter enacted to the fullest extent specified in Section 312(c)
of the Trust Indenture Act of 1939, and that the Trustee shall not be held
accountable or liable by reason of mailing any material pursuant to a request
made under said subsection (b) or for taking any action in good faith under
said subsection (b).
SECTION 6.03. (a) The Company and the Guarantor covenant and agree to
file with the Trustee, within 15 days after the Company and the Guarantor is
required to file the same with the Securities and Exchange 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 said Commission may from
time to time by rules and regulations prescribe) which the Company and the
Guarantor may be required to file with said Commission pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934; or, if the Company or
the Guarantor is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such 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.
(b) The Company and the Guarantor covenant and agree to file with the
Trustee and the Securities and Exchange Commission, in accordance with the
rules and regulations prescribed from time to time by said Commission, such
additional information, documents and reports with respect to compliance by the
Company and the Guarantor with the conditions and covenants provided for in the
Indenture as may be required from time to time by such rules and regulations.
(c) The Company and the Guarantor covenant and agree to transmit by
mail to (i) the holders of Senior Debt Securities as
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their names and addresses appear on the Senior Debt Security Register for each
Series of Senior Debt Securities, (ii) such holders of Senior Debt Securities
of a Series as have, within the two years preceding such transmission, filed
their names and addresses with the Trustee for that purpose, and (iii) to all
holders of Senior Debt Securities of a Series whose names and addresses have
been furnished to or received by the Trustee pursuant to Section 6.01 and
Section 6.02, the following: (1) within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company and the Guarantor pursuant to subsections (a) and
(b) of this Section 6.03 as may be required by rules and regulations prescribed
from time to time by the Securities and Exchange Commission, and (2) within 120
days after the end of each fiscal year of the Company and the Guarantor, copies
of audited financial statements, on a consolidated basis if applicable,
including balance sheets, statements of operations, statements of shareholders'
equity and statements of changes in financial position, together with the
respective reports of independent certified public accountants relating
thereto.
SECTION 6.04. (a) Within 60 days after May 15 of each year commencing
with the year 199__, so long as any Senior Debt Securities of a particular
Series are outstanding hereunder, the Trustee shall transmit to the holders of
each such Series as hereinafter in this Section 6.04 provided, a brief report
dated as of such May 15, with respect to any of the following events which may
have occurred within the previous twelve months (but if no such event has
occurred within such period, no report needs to be transmitted):
(1) any change to its eligibility under Section 8.09, and its
qualifications under Section 8.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 8.08(c);
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Senior Debt Securities of
such Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Senior Debt Securities of such Series outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company and the Guarantor (or by any other
obligor on the Senior Debt Securities) to the
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Trustee in its individual capacity, on the date of such report, with a
brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in paragraphs (2), (3), (4) or (6) of
subsection (b) of Section 8.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any change to any release, or release and substitution, of
property subject to the lien of this Indenture (and consideration
therefor, if any) not previously reported;
(7) any additional issue of Senior Debt Securities not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Senior Debt Securities
except action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section
7.07.
(b) The Trustee shall transmit to the holders of a Series, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 6.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Senior Debt Securities of
such Series, on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection (b), except that the
Trustee shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10 percent or less of the
principal amount of Senior Debt Securities of such Series outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 6.04 shall be transmitted by mail
to (i) all holders of Senior Debt Securities of a Series, as the names and
addresses of such holders appear upon the Senior Debt Security Register, (ii)
such holders of Senior Debt Securities of a Series as have, within the two
years preceding such transmission, filed their names and addresses with the
Trustee for that purpose, and (iii) to all holders of Senior Debt Securities of
a Series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 6.01 and Section 6.02.
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(d) A copy of each such report shall, at the time of such transmission
to holders, be filed by the Trustee with each stock exchange upon which the
Senior Debt Securities are listed and also with the Securities and Exchange
Commission. The Company agrees to notify the Trustee when and as the Senior
Debt Securities of any Series become listed on any stock exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR
DEBT SECURITIES IN EVENT OF DEFAULT.
SECTION 7.01. In case one or more of the following Events of Default
with respect to the Senior Debt Securities of a Series shall have occurred and
be continuing, that is to say:
(a) default in the payment of any installment of interest upon
any of the Senior Debt Securities of such Series as and when the same
shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any of the Senior Debt Securities of such Series or of any
Sinking Fund payment as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor duly
to observe or perform any other of the covenants or agreements on the
part of the Company or the Guarantor in the Senior Debt Securities or
in this Indenture contained for a period of 60 days after the date on
which written notice (such written notice to state it is a "Notice of
Default" hereunder) of such failure, requiring the Company to remedy
the same, shall have been given to the Company or the Guarantor by the
Trustee, or to the Company, the Guarantor and the Trustee by the
holders of at least 25 per cent in principal amount of the Senior Debt
Securities of such Series at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or the Guarantor
in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or the Guarantor or for any
substantial part of their respective property or ordering the winding
up or liquidation of their respective affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Company or the Guarantor shall commence a voluntary
case under any applicable bankruptcy, insolvency or
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other similar law now or hereafter in effect, or shall consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or the Guarantor or for any substantial part
of their respective property, or make any general assignment for the
benefit of creditors, or shall fail generally to pay their respective
debts as they become due, or corporate action shall be taken by the
Company or the Guarantor in furtherance of any such action; or
(f) default or event of default under any of the Private
Placement Notes, which default or event of default shall have resulted
in all or part of the Indebtedness evidenced by the Private Placement
Notes becoming or being declared due and payable prior to the date on
which such Indebtedness otherwise would have become due and payable,
without each such acceleration having been rescinded or annulled
within a period of 15 days after there shall have been given by
certified or registered mail to the Company and the Guarantor by the
Trustee, or to the Company, the Guarantor and the Trustee by the
holders of at least 25% in aggregate principal amount of the Senior
Debt Securities of such Series then outstanding, a written notice
specifying each such default and acceleration and requiring the
Company or the Guarantor to cause each such default and acceleration
to be rescinded or annulled; or
(g) any other Event of Default specially provided with
respect to the Senior Debt Securities of such Series;
then, and in each and every such case, unless the principal of all the Senior
Debt Securities of such Series shall have already become due and payable,
either the Trustee or the holders of not less than 25 per cent in aggregate
principal amount of the Senior Debt Securities of such Series then outstanding
hereunder, by notice in writing to the Company and the Guarantor (and to the
Trustee if given by holders of Senior Debt Securities), may, and at the request
of the holders of not less than 25 per cent in aggregate principal amount of
the Senior Debt Securities of such Series then outstanding hereunder, the
Trustee by notice in writing to the Company and the Guarantor shall, declare
the principal of all the Senior Debt Securities of such Series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the said
Senior Debt Securities of such Series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at anytime after the principal of the Senior Debt Securities of such Series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company and the Guarantor shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Senior Debt
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Securities of that Series and the principal of and premium, if any, on any and
all such Senior Debt Securities which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to
the extent that payment of such interest is enforceable under applicable law,
upon overdue installments of interest, at the rate borne by the Senior Debt
Securities of that Series to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of its negligence or bad
faith, and any and all defaults under the Indenture, other than the nonpayment
of the principal of Senior Debt Securities of that Series which shall have
become due by acceleration, shall have been remedied -- then, and in every such
case, the holders of a majority in aggregate principal amount of the Senior
Debt Securities of such Series then outstanding, by written notice to the
Company and the Guarantor and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then, and in every such case, the
Company, the Guarantor, the Trustee and the holders of the Senior Debt
Securities of such Series shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Guarantor and the Trustee and the holders of the Senior Debt
Securities of such Series shall continue as though no such proceedings had been
taken.
The Trustee shall not be charged with notice of any default or Event
of Default under subsections (c), (d) or (e) of this Section 7.01 unless the
Trustee shall have actually received (at its corporate trust office) written
notice thereof from the Company, the Guarantor or any holder of Senior Debt
Securities describing said default or Event of Default.
SECTION 7.02. The Company covenants that (1) in case default shall be
made in the payment of any installment of interest on any of the Senior Debt
Securities of a Series, as and when the same shall become due and payable, and
such default, shall have continued for a period of 60 days, or (2) in case
default shall be made in the payment of the principal of or premium, if any, on
any of the Senior Debt Securities of a Series or of any Sinking Fund payment
when the same shall have become payable, whether upon maturity of the Senior
Debt Securities of such Series or upon redemption or upon declaration or
otherwise then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Senior Debt Securities of such
Series, the whole amount that then shall have become due and payable on all
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such Senior Debt Securities of such Series for principal and premium, if any,
or interest, or both, as the case may be, with interest upon the overdue
principal and premium, if any, and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest at
the rate borne by the Senior Debt Securities of such Series; and, in addition
thereto, such further amount as shall be sufficient to cover reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company, the Guarantor or any other
obligor upon the Senior Debt Securities and collect in the manner provided by
law out of the property of the Company, the Guarantor or other obligor upon the
Senior Debt Securities wherever situated the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company, the Guarantor or any other obligor upon the
Senior Debt Securities under the Federal bankruptcy laws, as now or hereafter
constituted, or any other Federal or State bankruptcy, insolvency or similar
laws relative to the Company, the Guarantor or to such other obligor, its
creditors or its property, or in case a receiver or trustee shall have been
appointed for its property, or in case of any other judicial proceedings
relative to the Company, the Guarantor or other obligor upon the Senior Debt
Securities, its creditors or its property, the Trustee irrespective of whether
the principal of any Senior Debt 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 pursuant to the provisions of this
Section 7.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and premium, if any, and interest owing and unpaid in
respect of the Senior Debt 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 reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
holders of Senior Debt Securities allowed in any judicial proceedings relative
to the Company, the Guarantor or other obligor upon the Senior Debt Securities,
its creditors or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the holders of Senior Debt
Securities and of the Trustee on their behalf; and any receiver, assignee,
liquidator, sequestrator or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Senior Debt Securities to make payments to
the Trustee, and, in the
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event that the Trustee shall consent to the making of payments directly to the
holders of Senior Debt Securities, to pay to the Trustee such amount as shall
be sufficient to cover reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due to
the Trustee under Section 8.06.
All rights of action and of asserting claims under this Indenture, or
under any of the Senior Debt Securities, may be enforced by the Trustee without
the possession of any of the Senior Debt Securities, or the production thereof
in any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Senior Debt Securities.
In case of a default of which the Trustee has or is deemed to have
notice hereunder occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specified enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the trustee by this Indenture or by law.
SECTION 7.03. Any moneys collected by the Trustee pursuant to Section
7.02 shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or premium, if any, or interest, upon presentation of the several Senior Debt
Securities, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel, and any other amounts due to the
Trustee under this Indenture, including without limitation amounts due
under Section 8.06;
SECOND: In case the principal of the Senior Debt Securities
of a Series shall not have become due, to the payment of interest on
the Senior Debt Securities, in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Senior Debt
Securities of such Series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
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THIRD: In case the principal of the Senior Debt Securities of
a Series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Senior Debt
Securities of such Series for principal, and premium, if any, and
interest, with interest on the overdue principal, and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by
the Senior Debt Securities of such Series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid on the Senior Debt Securities of such Series, then to the
payment of such principal, and premium, if any, and interest, without
preference or priority of principal, and premium, if any, over
interest, or of interest over principal, and premium, if any, or of
any installment of interest over any other installment of interest, or
of any Senior Debt Security of such Series over any other Senior Debt
Security of such Series, ratably to the aggregate of such principal,
and premium, if any, and accrued and unpaid interest.
SECTION 7.04. No holder of any Senior Debt Security of a Series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceedings at law or in equity or in bankruptcy or
otherwise, upon or under or with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of
default in respect of such Series and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount of the Senior Debt Securities of such Series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.06; it being understood and intended, and being
expressly covenanted by the taker and holder of every Senior Debt Security of
such Series with every other such taker and holder and the Trustee, that no one
or more holders of Senior Debt Securities of a Series shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of the holders of any other of such
Senior Debt Securities of such Series, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Senior Debt Securities of such Series. For
the protection and enforcement of the provisions of this Section 7.04, each and
every holder of such Series and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
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Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Senior Debt Security to receive payment of the
principal of, and premium, if any, and interest on, such Senior Debt Security,
on or after the respective due dates expressed in such Senior Debt Security, or
to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
SECTION 7.05. All powers and remedies given by this Article Seven to
the Trustee or to the holders of Senior Debt Securities shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or such holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any holder of any of the Senior Debt Securities
to exercise any right or power accruing upon any default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the holders of Senior Debt
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by such holders.
SECTION 7.06. The holders of a majority in aggregate principal amount
of the Senior Debt Securities of a Series at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding of
any remedy available to the Trustee with respect to the Senior Debt Securities
of such Series, or exercising any trust or power conferred on the Trustee with
respect to such Series; provided, however, that the Trustee shall be entitled
to receive indemnity or security reasonably satisfactory to it prior to
following such direction or taking such action, and providing further that
subject to the provisions of Section 8.01 the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a responsible officer or officers,
determine that the action so directed would be unduly prejudicial to the
holders of the Senior Debt Securities of such Series not taking part in such
direction or would involve the Trustee in personal liability. Prior to the
declaration of the maturity of the Senior Debt Securities of any Series as
provided in Section 7.01, the holders of a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding may on
behalf of the holders of all of the Senior Debt Securities of such Series waive
any past default hereunder and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Senior Debt Securities of such Series or in respect of a covenant or provision
hereof which under Section 11.02 cannot be modified or amended without the
consent of the holder of each Senior Debt Security so
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affected. In the case of any such waiver, the Company, the Trustee and the
holders of the Senior Debt Securities of such Series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a Series of which the Trustee has or is deemed to
have knowledge hereunder, give to the holders of such Series, in the manner and
to the extent provided in subsection (c) of Section 6.04, notice of all such
defaults, unless such default shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section 7.07
being hereby defined to be any event or events, as the case may be, specified
in clause (a), (b), (c), (d) and (e) of Section 7.01, not including periods of
grace, if any, provided for therein and irrespective of the giving of the
written notice specified in clause (c) of Section 7.01); provided, however,
that, except in the case of default in the payment of the principal of, or
premium, if any, or interest on, any of the Senior Debt Securities, or in the
payment of any Sinking Fund installment, 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 and/or responsible officers, of
the Trustee in good faith determines that the withholding of such notice is in
the interests of the holders of such Series.
SECTION 7.08. All parties to this Indenture agree, and each holder of
any Senior Debt 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 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, 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 7.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any holder of Senior
Debt Securities, or group of holders of Senior Debt Securities, holding in the
aggregate more than 10 percent in aggregate principal amount of the Senior Debt
Securities of a Series then outstanding, or to any suit instituted by any
holder of Senior Debt Securities for the enforcement of the payment of the
principal of, or premium, if any, or interest on, any Senior Debt Security, on
or after the due date expressed in such Senior Debt Security.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
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SECTION 8.01. The Trustee, prior to the occurrence of an Event of
Default with respect to the Senior Debt Securities of a particular Series and
after the curing or waiver of all Events of Default with respect to the Senior
Debt Securities of a particular Series which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Senior Debt
Securities of any Series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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 wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Senior Debt Securities of a particular Series and after the curing of all
Events of Default with respect to the Senior Debt Securities of any Series
which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations 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 the part of the
Trustee, the 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 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) 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
(c) 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 not less than a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
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conferred upon the Trustee, under this Indenture relating to such Series.
None of the provisions contained in 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 there is reasonable ground for believing
that the repayment of such funds is not reasonably assured to it or at the
option of the Trustee indemnity reasonably satisfactory to the Trustee against
such risk or liability has not been provided.
Whether or not herein 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
8.01.
SECTION 8.02. Except as otherwise provided in Section 8.01:
(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, consent, direction,
approval, order, bond, debenture, 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, direction, order or demand of the
Company or the Guarantor mentioned herein shall be sufficiently
evidenced by an instrument signed in the name of the Company or the
Guarantor by the Chairman of the Board, President or any Vice
President and the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors of the Company or the Guarantor may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company or the Guarantor;
(c) 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;
(d) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the holders of Senior Debt
Securities, pursuant to the provisions of this Indenture, unless such
holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby;
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(e) 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;
(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,
consent, order, discretion, approval, bond, debenture 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; and
(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
(other than an employee of the Trustee) appointed by it with due care
hereunder.
SECTION 8.03. The recitals contained herein and in the Senior Debt
Securities (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company and the Guarantor, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of
the Senior Debt Securities. The Trustee shall not be accountable for the use
or application by the Company of any of the Senior Debt Securities or of the
proceeds thereof.
SECTION 8.04. The Trustee or any paying agent or Senior Debt Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Senior Debt Securities with the same rights it would have if it were
not Trustee, paying agent or Senior Debt Security Registrar.
SECTION 8.05. Subject to the provisions of Section 13.04, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any paying agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the
Company to pay thereon. So long as no Event of Default with respect to the
Senior Debt Securities of any Series shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its President or any Vice President or
its Treasurer or an Assistant Treasurer.
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SECTION 8.06. The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
If any property other than cash shall at any time be subject to a lien
in favor of the holders of Senior Debt Securities, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon, provided that the Trustee shall be under no affirmative duty to make
such advances. The Company also covenants to indemnify the Trustee, its
directors, officers, employees or agents for, and to hold each of them harmless
against, any loss, liability or expense incurred without negligence,
intentional wrongdoing or bad faith on the part of the Trustee, its directors,
officers, employees or agents, arising out of or in connection with the
acceptance or administration of this trust, the offering, issuance or sale of
the Debt Securities or any or all other transactions contemplated hereunder,
including the reasonable cost and expenses of defending against any claim of
liability in the premises. The obligations of the Company under this Section
8.06 to compensate the Trustee, its directors, officers, employees or agents
and to pay or reimburse the Trustee, its directors, officers, employees or
agents for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. The Trustee shall give the Company prompt notice of
any action commenced against it in respect of which indemnity may be sought
hereunder. The Trustee's failure to so notify the Company, after the receipt
by the Trustee at its Corporate Trust Office of written notification of such
action, shall relieve the Company from any liability under this Indenture with
respect to such action. In any such action the Company, by written notice to
the Trustee, may assume the defense thereof with counsel of the Trustee's
choosing, who shall be subject to the approval of the Company; and such
approval shall not be unreasonably withheld by the Company. In no event shall
the Company be required to indemnify or reimburse the Trustee hereunder in
respect of any claim settled or compromised without its consent. In no event
shall the Company be liable for the fees and expenses, which in all cases must
be reasonable under the circumstances, of more than one counsel in connection
with any one action. Such additional indebtedness shall be secured by a lien
prior to that of the Senior Debt Securities upon all property and funds held or
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collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Senior Debt Securities of any Series.
SECTION 8.07. Except as otherwise provided in Section 8.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 8.08. (a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section 8.08, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect specified in
Section 8.10, such resignation to become effective upon the appointment of a
successor trustee and such successor's acceptance of such appointment, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10
days after the expiration of such 90 day period, transmit notice of such
failure to the holders of Senior Debt Securities in the manner and to the
extent provided in subsection (c) of Section 6.04.
(c) For the purposes of this Section 8.08 the Trustee shall be
deemed to have a conflicting interest if a default or an Event of Default
exists with respect to the Senior Debt Securities of any Series and if:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are outstanding
or is trustee for more than one outstanding "series of securities" (as
hereafter defined) issued under a single indenture (including, without
limitation, this Indenture) of the Company unless such other indenture
is a collateral trust indenture under which the only collateral
consists of Senior Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph any other Series of Senior Debt Securities issued under this
Indenture, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities,
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of the Company are outstanding if (i) this Indenture and such other
indenture or indentures (and all series of securities issuable
thereunder) are wholly unsecured and rank equally, and such other
indenture or indentures (and such series) are specifically described
in this Indenture or are hereafter qualified under the Trust Indenture
Act of 1939, unless the Securities and Exchange Commission shall have
found and declared by order pursuant to subsection (b) of Section 305
or subsection (c) of Section 307 of the Trust Indenture Act of 1939
that differences exist between the provisions of this Indenture (or
such series) and the provisions of such other indenture or indentures
(or such series) which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture or such other indenture or indentures, or (ii)
the Company shall have sustained the burden of proving, on application
to the Securities and Exchange Commission and after opportunity for
hearing thereon, that the trusteeship under this Indenture and such
other indenture, or under more than one outstanding series under a
single indenture, is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under one of such indentures or with respect to such series;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company; (B) if
and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the Company; and
(C) the Trustee may be designated by the Company, or by any
underwriter for the Company, to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee
whether under an indenture or otherwise;
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(5) 10 percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20 percent or more
of such voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10 percent or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any two or
more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5 percent or more of
the voting securities, or 10 per cent or more of any other class of
security, of the Company, not including the Senior Debt Securities
issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10 percent
or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5 per cent or more of the
voting securities of any person who, to the knowledge of the Trustee,
owns 10 percent or more of the voting securities of, or controls
directly or indirectly, or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10 per cent or more of
any class of security of any person who, to the knowledge of the
Trustee, owns 50 per cent or more of the voting securities of the
Company;
(9) the Trustee owns on the date of default upon the
Senior Debt Securities of any Series or any anniversary of such
default while such default upon the Senior Debt Securities of such
Series remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25 per cent or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection (c). As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities do not exceed 25
percent of such voting securities or 25 per cent of any such class of
security. Promptly after the dates
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of any such default upon the Senior Debt Securities of any Series and
annually in each succeeding year that the Senior Debt Securities of
such Series remain in default, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned capacities
as of such dates. If the Company fails to make payment in full of
principal of or interest on any of the Senior Debt Securities when and
as the same become due and payable, and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of its holdings
of such securities in any of the above-mentioned capacities as of the
date of the expiration of such 30 day period, and after such date,
notwithstanding the foregoing provisions of this paragraph (9), all
such securities so held by the Trustee, with sole or joint control
over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (c); or
(10) Except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 8.13(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c) and Section 7.06,
the term "series of securities" or "series" means a series, class or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another series; provided,
that "series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and are
wholly unsecured.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds
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as collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
Except as above provided, the word "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in general, any
interest or instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or interim certificate for, receipt
for, guarantee of or warrant or right to subscribe to or purchase, any of the
foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered for sale or has sold for the
Company in connection with, the distribution of any security of the
Company outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently
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entitled to vote in the direction or management of the affairs of a
person.
(5) The term "Company" shall mean any obligor upon the Senior
Debt Securities.
(6) The term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentage of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance with the
following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section 8.08 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of
such person as entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are entitled to cast
in the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer of
the same class.
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise.
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(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise.
(iv) Securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 8.09. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $10,000,000, 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
aforesaid supervising or examining authority, then for the purposes of this
Section 8.09, 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. Neither the Company nor any person directly
or indirectly controlling, controlled by or under common control with the
Company shall serve as Trustee under this Indenture or any Series Supplement.
In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 8.09, the Trustee shall resign immediately in
the manner and with the effect specified in Section 8.10.
SECTION 8.10. (a) The Trustee may at any time resign with respect to
one or more or all Series of Senior Debt Securities by giving written notice by
first-class mail of such resignation to the Company. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
by written instrument in duplicate executed by order of the Board of Directors
of the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted
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appointment 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, or any holder who has been a bona fide
holder of a Senior Debt Security or Senior Debt Securities of the applicable
Series for at least six months may, subject to the provisions of Section 8.08,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee. Any resignation of the Trustee shall be subject to the provisions of
subparagraph (d) hereof.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 8.08 with respect to any Series of Senior
Debt Securities after written request therefor by the Company or by
any holder who has been a bona fide holder of a Senior Debt Security
or Senior Debt Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.09 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, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.08, any holder who has been a bona fide
holder of a Senior Debt Security or Senior Debt Securities of such Series for
at least six months 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 the applicable Series and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee with respect to the
applicable Series and appoint a successor trustee.
(c) The Company may also remove the Trustee, pursuant to the
procedures set forth in Section 8.10(b) hereof, if the Company has given 60
days written notice to the Trustee and the holders of the applicable Series of
Senior Debt Securities and has delivered to
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the Trustee and such holders of Senior Debt Securities an Officers' Certificate
stating:
(1) the reasons for such removal;
(2) that such removal will in no way be detrimental to
the interests of such holders of Senior Debt
Securities; and
(3) the identity of the successor trustee to be
appointed;
provided that (i) such successor trustee shall have a combined capital and
surplus of at least $20,000,000, (ii) the rating assigned to the debt
obligations of such successor trustee by the rating agency or agencies rating
any such debt obligations shall be no lower than the rating assigned, at the
time of appointment of the Trustee being replaced, to the debt obligations of
the Trustee being replaced, and (iii) such successor trustee shall be
independent and shall be eligible to act as Trustee pursuant to Sections 8.08
and 8.09 hereof; and, provided further that if after receiving such notice, the
holders of a majority in principal amount of the outstanding Senior Debt
Securities of the applicable Series shall notify the Trustee that they are
opposed to such removal, the Company shall not be entitled to remove the
Trustee pursuant to this Section 8.10(c) and the Company shall not be entitled
to exercise its rights pursuant to this Section 8.10(c) for six months after
such notice by the holders of Senior Debt Securities.
(d) The holders of a majority in aggregate principal amount of the
Senior Debt Securities of any Series at the time outstanding may at any time
remove the Trustee with respect to the Senior Debt Securities of such Series
and appoint a successor trustee of the applicable Series of Senior Debt
Securities by delivery to the Trustee so removed, to the successor trustee so
appointed and to the Company, the evidence provided for in Section 9.01 of the
action taken by the holders of the Senior Debt Securities.
(e) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.11.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of the applicable Series of Senior Debt Securities as their names and
addresses appear in the Senior Debt Security Register. Each notice shall
include the name of the successor trustee and the address of its principal
corporate trust office. If the Company fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the
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successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 8.11. Any successor trustee appointed as provided in Section
8.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any
applicable Series shall become effective and such successor trustee without any
further act, deed or conveyance shall become vested with all the rights,
powers, duties and obligations of its predecessor, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the right and powers of the Trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 8.06.
If a successor trustee is appointed with respect to the Senior Debt
Securities of one or more (but not all) Series, the Company, the predecessor
trustee and each successor trustee with respect to the Senior Debt Securities
of any applicable Series shall execute and deliver an agreement supplemental
hereto which shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor trustee with respect to the Senior Debt Securities of any Series as
to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and 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 agreement shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be a trustee of a trust or trusts under separate Indentures.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
SECTION 8.12. 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 or conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
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Trustee hereunder, provided such corporation shall be qualified under the
provisions of Section 8.08 and eligible under the provisions of Section 8.09,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Senior Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and deliver
such Senior Debt Securities so authenticated; and in case at that time any of
the Senior Debt Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Senior Debt Securities either in the name of
any predecessor hereunder or in the name of the successor trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Senior Debt Securities or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate Senior
Debt Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 8.13. (a) Subject to the provisions of subsection (b) of this
Section 8.13, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company on the Senior Debt Securities
within three months prior to a default, as defined in subsection (c) of this
Section 8.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the Senior
Debt Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section 8.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
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Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
8.13 would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Senior Debt Securities and the holders of
other indenture securities in such manner that the Trustee, the holders of
Senior Debt Securities and the holders of other indenture securities realize,
as a result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or
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in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of the
receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee, the
holders of Senior Debt Securities and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law, but after crediting thereon receipts on account of
the indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other Federal
or State bankruptcy, insolvency or similar law, whether such distribution is
made in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which said bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, the
holders of Senior Debt Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof, or (ii) in lieu
of such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee, the holders of Senior Debt Securities and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
months' period; and
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(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereof, if notice of such advance and of the
circumstances surrounding the making thereof is given to the holders
of Senior Debt Securities at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 8.13.
(c) As used in this Section 8.13:
(1) The term "default" shall mean any failure to make payment in
full of the principal of or interest on any of the Senior Debt Securities or
upon the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains
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provisions substantially similar to the provisions of subsection (a) of this
Section 8.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising form the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(5) The term "Company" shall mean any obligor upon the Senior Debt
Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 9.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Senior
Debt Securities of a Series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
holders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of the Senior Debt Securities of such Series voting in
favor thereof at any meeting of holders duly called and held in accordance with
the provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
SECTION 9.02. Subject to the provisions of Section 9.01 and Section
9.05, proof of the execution of any instrument by a holder or his agent or
proxy and proof of the holding by any person of any of the Senior Debt
Securities of a Series shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or
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other officer of any jurisdiction within the United States of America
authorized to take acknowledgments of deeds to be recorded in such
jurisdiction, that the person executing such instrument acknowledged to him the
execution thereof, by an affidavit of a witness to such execution sworn to
before any such notary or other such officer or by any other method or in any
other manner as shall be acceptable to the Trustee. If such execution is by an
officer of a corporation or association or a member of a partnership on behalf
of such corporation, association or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority.
The ownership of Senior Debt Securities of a Series shall be proved by
the Senior Debt Security Register or by a certificate of the Senior Debt
Security Registrar thereof.
The Trustee shall not be bound to recognize any person as a holder
unless and until his title to the Senior Debt Securities held by him is proved
in the manner in this Article Nine provided.
The Trustee may require such additional proof of any matter referred
to in this Section 9.02 as it shall deem necessary.
The record of any holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. The Company, the Guarantor, the Trustee, any paying
agent and any Senior Debt Security Registrar may deem and treat the person in
whose name any Senior Debt Security shall be registered in the Senior Debt
Security Register as the absolute owner of such Senior Debt Security (whether
or not such Senior Debt Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Company or any Senior Debt Security Registrar) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Guarantor, nor the Trustee nor any paying agent nor any Senior
Debt Security Registrar shall be affected by any notice to the contrary. All
such payments so made to any such registered holder for the time being, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Senior Debt Security.
SECTION 9.04. In determining whether the holders of the requisite
aggregate principal amount of Senior Debt Securities of a Series have concurred
in any direction, consent or waiver under this Indenture, Senior Debt
Securities of such Series which are owned by the Company, or any other obligor
on the Senior Debt Securities of such Series or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, or any other obligor on the Senior Debt Securities of
such Series shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be
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protected in relying on any such direction, consent or waiver only Senior Debt
Securities of such Series which the Trustee knows are so owned shall be so
disregarded. Senior Debt Securities of such Series so owned which have been
pledged in good faith may be regarded as outstanding for the purposes of this
Section 9.04, if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Senior Debt Securities and that the pledgee is
not a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company, or any such other obligor.
Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officers' Certificate listing and identifying all Senior Debt Securities of
such Series, if any, known by the Company to be owned or held by or for the
account of any of the above described persons; and, subject to the provisions
of Section 8.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Senior Debt Securities of such Series not listed therein are
outstanding for the purposes of any such determination.
SECTION 9.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 9.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Senior Debt
Securities of a Series specified in this Indenture in connection with such
action, any holder of a Senior Debt Security of such Series the serial number
of which is shown by the evidence to be included in the Senior Debt Securities
of such Series the holders of which have consented to such action may, by
filing written notice with the Trustee at its office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such Senior
Debt Security. Except as aforesaid, any such action taken by the holder of any
Senior Debt Security shall be conclusive and binding upon such holder and upon
all future holders and owners of such Senior Debt Security, and of any Senior
Debt Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Senior Debt
Security. Any action taken by the holders of the percentage in aggregate
principal amount of the Senior Debt Securities of a Series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Senior Debt Securities of such
Series.
ARTICLE TEN.
MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 10.01. A meeting of holders of Senior Debt Securities of any
or all Series may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company, the Guarantor or
to the Trustee, or to give any directions to the Trustee, or
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to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
holders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee with respect to one or more or
all Series and appoint a successor trustee pursuant to the provisions
of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Senior Debt Securities of any or all Series under any other
provision of this Indenture or under applicable law.
SECTION 10.02. The Trustee may at any time call a meeting of holders
of Senior Debt Securities to take any action specified in Section 10.01, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the holders of any or all 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 mailed to such holders of Senior Debt Securities at
their addresses as shown by the Senior Debt Security Register not less than 20
nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors, shall have requested the Trustee to call
a meeting of holders of any or all Series, or the holders of at least 10 per
cent in aggregate principal amount of the Senior Debt Securities of the Series
then outstanding with respect to which a meeting is proposed to be called shall
have requested the Trustee to call a meeting of the holders of the applicable
Series, to take any action authorized in Section 10.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or the holders
of Senior Debt Securities of the applicable Series in the amount above
specified may determine the time and the place for such meeting and may call
such meeting by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. To be entitled to vote at any meeting of holders of
Senior Debt Securities of any or all Series a person shall (a) be a holder of
one or more Senior Debt Securities with respect to which such meeting was
called, or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more Senior Debt Securities with respect to which such meeting
was called. The only persons who shall be entitled to be present
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or to speak at any meeting of holders of Senior Debt Securities of any or all
Series shall be the persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 10.05. 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 Senior Debt Securities, in regard to
proof of the holding of Senior Debt Securities 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 Senior Debt Securities shall be proved in the
manner specified in Section 9.02 and the appointment of any proxy shall be
proved in the manner specified in said Section 9.02 or by having the signature
of the person executing the proxy witnessed or guaranteed by any bank, banker
or trust company.
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 as provided in Section 10.03, in which case the Company
or the holders 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 holders of a majority in
aggregate principal amount of the Senior Debt Securities represented at the
meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each holder
or proxy shall be entitled to one vote for each $1,000 (unless otherwise
provided in the related Series Supplement) principal amount of Senior Debt
Securities of the Series entitled to vote held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Senior Debt 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 other than by virtue of Senior Debt Securities of the Series
entitled to vote held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other holders. Any meeting
of holders duly called pursuant to the provisions of Section 10.02 or 10.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of holders of Senior Debt Securities of any or all
Series, the presence of persons holding or representing Senior Debt Securities
of the applicable Series in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the
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persons holding or representing a majority of the Senior Debt Securities of the
applicable Series represented at the meeting may adjourn such meeting with the
same effect as though a quorum had been present.
SECTION 10.06. The vote upon any resolution submitted to any meeting
of holders shall be by written ballots on which shall be subscribed the
signatures of the holders or proxies and the serial number or numbers of the
Senior Debt Securities 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 in duplicate of the proceedings of
each meeting of holders 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 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 mailed as provided in Section 10.02.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other 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.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Each of the Company and the Guarantor, when authorized
by resolutions of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof) for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company or the Guarantor or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of the
Company or the Guarantor pursuant to Article Twelve;
(b) to add to the covenants of either of the Company or the
Guarantor such further covenants, restrictions, conditions or provisions as its
Board of Directors, and the Trustee shall consider to be for the protection of
the holders of any Series of Senior Debt Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any of such
additional covenants, restrictions, conditions or provisions a default or an
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Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the holders of a majority in aggregate
principal amount of the Senior Debt Securities of a Series to waive such
default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided that such action
shall not adversely affect the interests of the holders of the Senior Debt
Securities; and
(d) to set forth the terms of any Series that has not theretofore
been authorized by a Series Supplement.
The Trustee is hereby authorized to join with the Company and the
Guarantor in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company, the Guarantor and the Trustee
without the consent of the holders of any of the Senior Debt Securities at the
time outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. With the consent (evidenced as provided in Section
9.01) of the holders of not less than a majority in aggregate principal amount
of the Senior Debt Securities of each Series to be affected at the time
outstanding, each of the Company and the Guarantor, when authorized by
resolutions of its Board of Directors, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Senior Debt Securities of such Series;
provided,
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however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Senior Debt Securities, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, without the consent of the
holder of each Senior Debt Security so affected, (ii) reduce the aforesaid
percentage of Senior Debt Securities of any Series, the consent of the holders
of which is required for any such supplemental indenture, without the consent
of the holders of all Senior Debt Securities of such Series then outstanding,
(iii) modify any of the provisions of this Section or Section 7.06, 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 Senior Debt Security affected thereby, or (iv) modify or waive
compliance with any provision of the Guarantee that adversely affects the
rights of any holder of Senior Debt Securities of any Series, other than the
merger or consolidation of the Company and the Guarantor with or into one
another (regardless of which shall be the resulting or surviving corporation),
without the consent of the holder of each Senior Debt Security affected
thereby.
Upon the request of the Company, accompanied by a copy of resolutions
of its and the Guarantor's Board of Directors certified by the Secretary or an
Assistant Secretary of the Company and the Guarantor authorizing the execution
of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the holders as aforesaid, the Trustee shall join
with the Company and the Guarantor in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the holders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section 11.02, the Company shall mail to the holders to which such supplemental
indenture relates a notice, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 11.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven, this Indenture shall be and
be deemed to be modified and amended in accordance therewith with respect to
each Series of Senior Debt Securities affected thereby or all Senior Debt
Securities, as the case may be, and the respective rights, limitations of
rights,
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obligations, duties and immunities under this Indenture of the Trustee, the
Company, the Guarantor and the holders of Senior Debt Securities of each Series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
The Trustee, subject to the provisions of Section 8.01, may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article Eleven and that all conditions
precedent thereto have been met.
SECTION 11.04. Senior Debt Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven or after any action taken at a meeting of holders of Senior
Debt Securities pursuant to Article Ten, 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 or as to any such action. New
Senior Debt Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture or reflecting such
action may be prepared by the Company, and such Senior Debt Securities may be
authenticated by the Trustee and delivered in exchange for the Senior Debt
Securities then outstanding.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 12.01. (a) Nothing contained in this Indenture or in any of
the Senior Debt Securities shall prevent any consolidation or merger of the
Company or the Guarantor with or into any other corporation or corporations or
successive consolidations or mergers in which the Company or the Guarantor or
their respective successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of the property of either of the Company or the
Guarantor as an entirety or substantially as an entirety to any other
corporation authorized to acquire and operate the same; provided, however, and
the Company and the Guarantor each hereby covenants and agrees, that any such
consolidation, merger, sale or conveyance shall be upon the condition that (a)
immediately after such consolidation, merger, sale or conveyance, the
corporation (whether the Company, the Guarantor or such other corporation)
formed by or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall not be in default in the performance
or observance of any of the terms, covenants and conditions of this Indenture
to be kept or performed by the Company or the Guarantor; (b) the corporation
(if other than the Company or the Guarantor) formed by or surviving any such
consolidation or merger, or to which such sale or conveyance shall
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have been made, shall be a corporation organized under the laws of the United
States of America or any state thereof; and (c) the due and punctual payment of
the principal of (and premium, if any) and interest on all of the Senior Debt
Securities, according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be
performed, or observed by the Company or the Guarantor, as the case may be,
shall be expressly assumed by the corporation formed by such consolidation, or
into which the Company or the Guarantor shall have been merged, or by the
corporation which shall have acquired such property, by supplemental indenture,
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation formed by such consolidation, or into which the Company or the
Guarantor shall have been merged, or by the corporation which shall have
acquired such property.
SECTION 12.02. In case of any such consolidation, merger, sale or
conveyance in accordance with Section 12.01, such successor corporation shall
succeed to and be substituted for the Company or the Guarantor, as the case may
be, with the same effect as if it had been named herein as a party, and the
Company and the Guarantor, as the case may be (including any intervening
successor to either hereunder), shall be relieved of any further obligation
under this Indenture and the Senior Debt Securities; provided, however, that in
the case of a sale or conveyance of the property of the Company or the
Guarantor, as the case may be (including any such intervening successor), in
connection with which there is no plan providing for the complete liquidation
of the Company or the Guarantor, as the case may be (including any such
intervening successor), the Company or the Guarantor, as the case may be
(including any such intervening successor), shall continue to be liable on its
obligations under this Indenture and the Senior Debt Securities to the extent,
but only to the extent, of liability to pay the principal of and premium, if
any, and interest on the Senior Debt Securities at the time, places and rate,
and in the coin or currency, prescribed in this Indenture and the Senior Debt
Securities. Any such successor corporation to the Company thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company any or all of the Senior Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of any such successor corporation, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Senior Debt Securities which
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Senior Debt Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. Any such successor corporation to the Guarantor
thereupon may cause to be signed the Guarantee appearing on any or all of the
Senior Debt Securities issuable hereunder which theretofore shall not have been
signed by the Guarantor and delivered to the Trustee. All the Senior Debt
Securities so issued shall in all respects have the same legal rank and benefit
under
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this Indenture as the Senior Debt Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Senior
Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Senior Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. The Trustee, subject to the provisions of Sections 8.01
and 8.02, may receive an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Article Twelve and that all conditions
precedent herein provided relating to such transaction have been complied with.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 13.01. The Company may terminate its obligation under the
Senior Debt Securities of a Series and this Indenture with respect to such
Senior Debt Securities, except those obligations referred to in the immediately
succeeding paragraph, if at any time (a) the Company shall have delivered to
the Trustee for cancellation all Senior Debt Securities of any Series
theretofore authenticated and delivered (other than any Senior Debt Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08) and the Company shall have paid
or caused to be paid all sums payable by it hereunder, or (b) if 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
the Senior Debt Securities of such Series for that purpose, money or direct
non-callable obligations of, or non-callable obligations 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, as verified in a Certificate of a Firm of Independent
Public Accountants, without consideration of any reinvestment of such interest,
to pay principal of and interest or sinking funds on the outstanding Senior
Debt Securities of such Series to maturity or redemption as the case may be,
provided that the Trustee or any paying agent shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest and said sinking fund
with respect to the Senior Debt Securities of such Series. The Company may
make an irrevocable deposit pursuant to this Section 13.01 only if at such time
the
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Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, (ii) does not require registration by the deposit referred to above
under the Investment Company Act of 1940, as amended, and (iii) will not be an
event whereby holders of such Senior Debt Securities will recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 shall
survive until the Senior Debt Securities of such Series are no longer
outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and
13.05 shall survive.
After any such irrevocable deposit, the Trustee upon request shall (i)
acknowledge in writing the discharge of the Company's obligations under the
Senior Debt Securities of such Series and this Indenture except for those
surviving obligations specified above, (ii) execute, deliver and file
termination statements, releases and other instruments of satisfaction, release
and discharge with respect to such released security interest and (iii) assign,
transfer and deliver to the Company all the Trustee's rights and interest in
and to that portion of the trust estate so released.
SECTION 13.02. Subject to the provisions of Section 13.04, all moneys
or U.S. Government Obligations deposited with the Trustee pursuant to Section
13.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent), to the holders of the particular Senior Debt Securities of the
applicable Series, for the payment or redemption of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest and premium, if any, and
Sinking Fund payments.
SECTION 13.03. In connection with the satisfaction and discharge of
this Indenture with respect to the Senior Debt Securities of any Series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such Series of Senior Debt Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 13.04. Any moneys deposited with the Trustee or any paying
agent for the payment of the principal of and premium, if
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any, or interest on Senior Debt Securities of any Series and not applied but
remaining unclaimed by the holders of Senior Debt Securities of such Series for
three years after the date upon which such payment shall have become due, shall
be held uninvested and without liability for interest and shall be repaid to
the Company by the Trustee or by such paying agent on demand; and the holder of
any of the Senior Debt Securities of the applicable Series entitled to receive
such payment shall thereafter look only to the Company for the payment thereof
and all liability of the Trustee or any paying agent with respect to such
moneys shall thereupon cease; provided, however, that the Trustee or such
paying agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two successive
weeks (in each case on any day of the week) in an authorized newspaper a notice
that said moneys have not been so applied and that after a date named therein
any unclaimed balance of said moneys then remaining will be returned to the
Company.
SECTION 13.05. If the Trustee is unable to apply any money or U.S.
Government Obligations in accordance with Section 13.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Senior Debt Securities of
any Series affected thereby shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01, until such time as the Trustee
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 13.01; provided, however, that if the Company has made
any payment of interest on or principal of any Senior Debt Securities of such
Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Senior Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, the Guarantee or of any Senior Debt Security, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company, the Guarantor or of any successor
corporation of either, either directly or through the Company or the Guarantor,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company, the Guarantor or of any
successor corporation of either, or any of them, because of the
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creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture, the Guarantee
or in the Senior Debt Securities of any Series or implied therefrom; and that
any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture, the
Guarantee or in the Senior Debt Securities of any Series or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such Senior
Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Guarantor shall bind its successors and assigns, whether so
expressed or not.
SECTION 15.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company or the Guarantor shall and may be done and
performed with like force and effect by the like board, committee or officer of
any corporation that shall at that time be the successor of the Company or the
Guarantor, as applicable.
SECTION 15.03. The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers or rights reserved to the Company and thereupon such power or
right so surrendered shall terminate both as to the Company and as to any
successor corporation. The Guarantor by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers or rights reserved to the Guarantor and thereupon such power
or right so surrendered shall terminate both as to the Guarantor and as to any
successor corporation.
SECTION 15.04. Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the Trustee, the
Guarantor or by the holders of Senior Debt Securities to or on the Company
shall be delivered by hand or sent by first-class mail, postage prepaid,
addressed (until another address is filed by the Company with the Trustee), as
follows: Fina Oil and Chemical Company, 8350 N. Central Expressway, Dallas,
Texas 75206, Attention: Vice President and Chief Financial Officer. Any
notice, direction, request or demand by the Company,
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<PAGE> 91
the Trustee or any holder of Senior Debt Securities to or upon the Guarantor
shall be deemed to have been sufficiently given or made, for all purposes, if
delivered by hand or sent by first-class mail, postage prepaid, addressed
(until another address is filed by the Guarantor with the Trustee), as follows:
FINA, Inc., 8350 N. Central Expressway, Dallas, Texas 75206, Attention: Vice
President and Chief Financial Officer. Any notice, direction, request or
demand by the Company, the Guarantor or any holder of Senior Debt Securities to
or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at any corporate trust office of the
Trustee.
SECTION 15.05. Where this Indenture provides for notice to holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each holder affected by such event, at his address as it appears on the Senior
Debt Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular holder shall affect
the sufficiency of such notice with respect to other holders, and any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.
When 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 as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to holders of Senior Debt Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 15.06. This Indenture, each indenture supplemental thereto and
each Senior Debt Security shall be deemed to be a contract made under the laws
of the State of Texas, and for all purposes shall be construed in accordance
with the laws of said State, provided that the rights, duties, immunities and
standard of care of the Trustee shall be governed by and construed in
accordance with the laws of the United States of America.
SECTION 15.07. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent
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<PAGE> 92
(including any covenant compliance with which constitutes a condition
precedent) 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 have been complied with, except that
in the case of any such application or demand as to which the furnishing of
such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(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 such
person, 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 or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.08. In any case where the date of maturity of interest on
or principal of the Senior Debt Securities or the date fixed for redemption of
any Senior Debt Security shall not be a business day then payment of interest
or principal and premium, if any, to the holders need not be made on such date,
but may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
SECTION 15.09. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.10. In case any provision in this Indenture or in the
Senior Debt 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 15.11. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 15.12. Unless specified otherwise in the Series Supplement,
interest on the Senior Debt Securities shall be
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<PAGE> 93
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 15.13. Texas Commerce Bank National Association hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
[Remainder of page intentionally left blank.]
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<PAGE> 94
IN WITNESS WHEREOF, FINA OIL AND CHEMICAL COMPANY has caused this
Indenture to be signed by its President or one of its Vice Presidents, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary, FINA, INC. has caused this Indenture to be
signed by its President or one of its Vice Presidents, and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, and [INDENTURE TRUSTEE] has caused this Indenture to be
signed by one of its duly authorized trust officers and its corporate seal to
be affixed hereunto, and the same to be duly attested, all as of the day and
year first above written.
FINA OIL AND CHEMICAL COMPANY
By:
___________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
________________________________
Linda Middleton,
Secretary
FINA, INC.
By:
___________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
_______________________________
Linda Middleton,
Assistant Secretary
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Trustee
By: ___________________________________
Title:_________________________________
ATTEST:
_______________________________
[Name and title]
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<PAGE> 95
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA
OIL AND CHEMICAL COMPANY, a Delaware corporation, and that they executed the
same as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________,
199__.
________________________________________
Notary Public in and for the State of
Texas
My commission expires:
________________________________________
(Type or print name)
_____________________
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA,
INC., a Delaware corporation, and that they executed the same as the act of
said corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________,
199__.
________________________________________
Notary Public in and for the State of
Texas
My commission expires:
________________________________________
(Type or print name)
_____________________
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<PAGE> 96
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared [Name of Officers], known to me to be
the persons and officers whose names are subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, a national banking association, and that they
executed the same as the act of said banking association for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of ____________,
199__.
________________________________________
Notary Public in and for the State of
Texas
My commission expires:
________________________________________
(Type or print name)
_____________________
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<PAGE> 97
EXHIBIT B
FORM OF NOTATION ON SENIOR DEBT SECURITY RELATING TO
FINA, INC. GUARANTEE
The Guarantor has unconditionally guaranteed, to the extent set forth
in the Indenture and subject to the provisions in the Indenture, the due and
punctual payment and performance of the obligations of the Company in
connection with the Indenture and each Series of Senior Debt Securities issued
thereunder. In case of the failure of the Company punctually to perform or
make any such payment, the Guarantor hereby agrees to cause such payment and
performance to be made punctually.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
Three of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Guarantee. Capitalized terms used and not defined herein
have the meanings ascribed thereto in the Indenture.
FINA, INC. (SEAL)
By:_________________________________
Name:______________________
Title:_____________________
Attest:
By: _______________________________
Name:______________________
Title:_____________________
<PAGE> 1
[Form of June 26, 1996] EXHIBIT (4d)
[Form of Supplemental Indenture. A Supplemental Indenture entered into between
the Company, the Guarantor and the Trustee with respect to each Series of
Senior Debt Securities issued pursuant to the Indenture, in definitive,
executed form, will be filed by the Company with the Commission as an Exhibit
to a current Report on Form 8-K shortly after the closing date for the issuance
of each such Series of Senior Debt Securities.]
FINA OIL AND CHEMICAL COMPANY,
as Issuer
FINA, INC.,
as Guarantor
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
SERIES _____ SUPPLEMENT
Dated as of __________, 199___
to
INDENTURE
Dated as of ___________, 199___
$_______________________
[SENIOR DEBT SECURITIES]
<PAGE> 2
SERIES ______ SUPPLEMENT, dated as of _____________, 199___, between
FINA OIL AND CHEMICAL COMPANY, a Delaware corporation (together with its
successors and assigns as provided in the Indenture referred to below, the
"Company"), FINA, INC., a Delaware corporation (together with its successors
and assigns as provided in the Indenture referred to below, the "Guarantor"),
and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association
(together with its successors in trust thereunder as provided in the Indenture
referred to below, the "Trustee"), as trustee under an Indenture dated as of
__________________, 199___, among the Company, the Guarantor and the Trustee
(the "Indenture").
PRELIMINARY STATEMENT
Section 2.02 of the Indenture provides, among other things, that the
Company, when authorized by its Board of Directors, the Guarantor and the
Trustee may at any time and from time to time enter into an indenture
supplemental to the Indenture for the purpose of authorizing a Series of Senior
Debt Securities and to specify certain terms of such Series of Senior Debt
Securities. The Board of Directors of the Company has duly authorized the
creation of a Series of Senior Debt Securities with an aggregate principal
amount of $___________________ to be known as the Company's [Senior Debt
Securities], (the "[Senior Debt Securities]") , and the Company, the Guarantor
and the Trustee are executing and delivering this Series _____ Supplement in
order to provide for the [Senior Debt Securities].
SECTION 1. Designation.
The [Senior Debt Securities] shall be designated as the Company's
[Senior Debt Securities].
SECTION 2. Date of [Senior Debt Securities].
The [Senior Debt Securities] which are authenticated and delivered by
the Trustee to or upon the order of the Company on the Closing Date for the
[Senior Debt Securities] shall be dated __________________, _____. All other
[Senior Debt Securities] which are authenticated after the Closing Date for any
other purpose under the Indenture shall be dated the date of their
authentication. For the purposes of this Section 2, "Closing Date" shall mean
the date on which the [Senior Debt Securities] are first executed,
authenticated and delivered.
SECTION 3. Aggregate Principal Amount.
The aggregate principal amount of [Senior Debt Securities] that may be
authenticated and delivered under the Indenture and this Series _____
Supplement is limited to $_____________________.
SECTION 4. Interest Rate.
The [Senior Debt Securities] shall bear interest at the rate of
______% per annum.
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<PAGE> 3
SECTION 5. Interest Payment Dates.
The interest payment dates for the [Senior Debt Securities] are
[_________________], commencing on ___________________, 199___.
SECTION 6. Record Date.
The record date with respect to an interest payment date shall be the
_____ day of the calendar month preceding the month in which such interest
payment date falls, or in the case of defaulted interest, the close of business
on any special record date.
SECTION 7. Denominations of [Senior Debt Securities].
The [Senior Debt Securities] are issuable in denominations of
$_______________ and any integral thereof.
SECTION 8. Currency of Issuance and Payments.
The [Senior Debt Securities] shall be issued in the currency of
________________ and shall be paid in such currency.
[SECTION 9. Redemption Date and Price.
The [Senior Debt Securities] may be redeemed [in full] [in whole or in
part] at the Company's option at _____% of the principal amount thereof, plus
accrued interest, if redeemed prior to ________________, 199___, and at the
following prices (expressed as percentages of the principal amount) if redeemed
during the twelve month period beginning ________ of the years indicated below,
together in each case with interest accrued to the redemption date:
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
19___ $_________________
19___ $_________________
</TABLE>
Beginning ________________, 19__, the Company may redeem the [Senior
Debt Securities] at 100% of the principal amount thereof together with interest
accrued to the redemption date.]
[SECTION 10. Sinking Fund.
As and for a Sinking Fund for the retirement of the [Senior Debt
Securities], the Company covenants that on or before _____________, 19___, and
annually on or before _____________ of each year thereafter to and including
______________, ________, it will pay to the Trustee a sum in cash sufficient
to retire by redemption at a Sinking Fund redemption price set forth below, on
the next succeeding ______________, $_________________ principal amount of the
[Senior Debt Securities]; provided, however, that in any such year in which
_________________ is not a business day,
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<PAGE> 4
such payment shall be made to the Trustee on the last business day preceding
such _____________________. In any year, the Company may, at its sole option,
increase the payment required to be made pursuant to this Section 10 for such
year by an amount not to exceed $______________; provided that such increase
shall be an integral multiple of $____________.
The Sinking Fund redemption price will be equal to the principal
amount of the [Senior Debt Securities] to be redeemed pursuant to this Section
10, together with accrued interest to the date fixed for redemption.]
SECTION 11. Form of [Senior Debt Securities].
The [Senior Debt Securities] shall be in the form attached hereto as
Exhibit A.
SECTION 12. Maturity Date.
The [Senior Debt Securities] will mature and be payable in accordance
with their terms on __________________, 19___.
SECTION 13. Book-Entry Matters.
Pursuant to Section 2.02 of the Indenture, the following provisions
shall apply to the [Senior Debt Securities], notwithstanding anything to the
contrary in the Indenture:
(a) The [Senior Debt Securities] will be issued in fully
registered form only. However, except as provided in paragraphs (d),
(e) and (f) of this Section 13, the registered owner of all of the
[Senior Debt Securities] initially shall be The Depository Trust
Company ("DTC") or its nominee, and such [Senior Debt Securities]
initially shall be registered in the name of DTC or its nominee.
Payment of the principal of or interest on [Senior Debt Securities]
registered in the name of DTC or its nominee shall be made in the
manner and at the address(es) specified in the Letter of
Representations, dated ____________, 199__, from the Company and the
Trustee to DTC, a copy of which is attached hereto as Exhibit B. DTC
(and any successor securities depository) and its (or their)
participating institutions (collectively "Participants") shall
maintain a book- entry registration and transfer system with respect
to ownership of beneficial interests in the [Senior Debt Securities]
(the "Book-Entry System").
(b) The [Senior Debt Securities] shall be initially
issued in the form of a separate, single, authenticated, fully
registered [Senior Debt Security] (the "Global Security") which (i)
pursuant to Section 2.01 of the Indenture, need not be in the form of
a lithographed or engraved certificate, but may be typewritten or
printed on ordinary paper or such paper as the Trustee may reasonably
request, (ii) shall represent and be denominated in an amount equal to
100% of the aggregate principal amount of the [Senior Debt Securities]
issued under
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<PAGE> 5
this Series _____ Supplement, (iii) shall be executed by the Company
and authenticated by the Trustee in accordance with the provisions of
the Indenture, and delivered by the Trustee to DTC or its nominee or
an approved custodian for DTC (which may include the Trustee), (iv)
shall be registered in the Senior Debt Security Register in the name
of Cede & Co., as nominee of DTC, and (v) shall contain the following
legend on the face thereof:
Unless this [Senior Debt Security] is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered holder hereof, Cede & Co., has an
interest herein.
Unless and until it is exchanged in whole or in part for [Senior Debt
Securities] in definitive certificated form, the Global Security
representing the [Senior Debt Securities] may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to
DTC or another nominee of DTC or by DTC or any such nominee to a
successor securities depository or a nominee of any such successor
securities depository.
(c) The Trustee and the Company may treat DTC or its
nominee, or any successor securities depository or nominee thereof
(collectively, the "Depository"), as the sole and exclusive owner of
the [Senior Debt Securities] registered in its name for the purposes
of payment of the principal of or interest on the [Senior Debt
Securities], giving any notice permitted or required to be given to
holders of the [Senior Debt Securities] under the Indenture or this
Series _____ Supplement, registering the transfer of the [Senior Debt
Securities], obtaining any consent or other action to be taken by
holders of the [Senior Debt Securities] and for all other purposes
whatsoever, and neither the Trustee nor the Company shall be affected
by any notice to the contrary. Neither the Company nor the Trustee
shall have any responsibility or obligation to any Participant, any
person claiming a beneficial ownership interest in the [Senior Debt
Securities] under or through the Depository or any Participant, or any
other person which is not shown on the Senior Debt Security Register
as being a holder of the [Senior Debt Securities], with respect to (i)
the accuracy of any records maintained by the Depository or any
Participant; (ii) the payment by the Depository to any Participant of
any amount in respect of the
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<PAGE> 6
principal of or interest on the [Senior Debt Securities]; or (iii) the
payment by any Participant to any owner of a beneficial ownership
interest in the [Senior Debt Securities] in respect of the principal
of or interest on the [Senior Debt Securities]. The Trustee shall pay
all principal of and interest on the [Senior Debt Securities] only to
or upon the order of the registered holder or holders of the [Senior
Debt Securities], as shown in the Senior Debt Security Register, and
all such payments shall be valid and effective to fully satisfy and
discharge the Company's obligations with respect to the principal of
and interest on the [Senior Debt Securities] to the extent of the sum
or sums so paid. No person other than a holder of the [Senior Debt
Securities], as shown in the Senior Debt Security Register, shall
receive an authenticated [Senior Debt Security] evidencing the
obligation of the Company to make payment of the principal of and
interest on the [Senior Debt Securities] pursuant to the Indenture and
this Series ____ Supplement. Upon delivery by DTC to the Trustee of
written notice to the effect that DTC has determined to substitute a
new nominee for Cede & Co., and subject to the provisions of the
Indenture and this Series _____ Supplement, the word "Cede & Co.", as
used in this Series _____ Supplement, shall refer to each new nominee
of DTC.
(d) In the event that after the occurrence of an Event of
Default that has not been cured or waived, holders of a majority in
aggregate principal amount of the beneficial interests in the [Senior
Debt Securities], as reflected in the books and records of the
Depository, notify the Trustee, through the Depository or any
Participant, that the continuation of the Book-Entry System is no
longer in the best interests of such holders of beneficial interests
in the [Senior Debt Securities], then the Trustee shall notify the
Depository and the Company, and the Depository will notify the
Participants of the availability through the Depository of definitive
certificated [Senior Debt Securities]. In such event, the Company
shall execute, and the Trustee, upon receipt of a written order of the
Company, signed by its President or a Vice President and by its
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary (an
"Issuer Order"), for the authentication and delivery of definitive
certificated [Senior Debt Securities], will authenticate and deliver
[Senior Debt Securities] in definitive certificated form, in any
authorized denominations, all pursuant to the provisions of the
Indenture, to the person or persons specified to the Trustee in
writing by the Depository in the aggregate principal amount of the
Global Security and in exchange for such Global Security.
(e) If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository for the
[Senior Debt Securities] or if at any time the Depository shall no
longer be registered as a clearing agency in good standing under the
Securities Exchange Act of 1934, as
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<PAGE> 7
amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to the [Senior Debt
Securities]. If a successor Depository for the [Senior Debt
Securities] is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive certificated [Senior
Debt Securities], will authenticate and deliver [Senior Debt
Securities] in definitive certificated form, in any authorized
denominations, all pursuant to the provisions of the Indenture, to the
person or persons specified to the Trustee in writing by the
Depository in the aggregate principal amount of the Global Security
and in exchange for such Global Security.
(f) The Company may at any time and in its sole
discretion determine that the [Senior Debt Securities] shall no longer
be represented by a Global Security. In such event the Company will
execute, and the Trustee, upon receipt of an Issuer Order for the
authentication and delivery of definitive certificated [Senior Debt
Securities], will authenticate and deliver [Senior Debt Securities] in
definitive certificated form, in any authorized denominations, all
pursuant to the provisions of the Indenture, to the person or persons
specified to the Trustee in writing by the Depository in the aggregate
principal amount of the Global Security and in exchange for such
Global Security.
(g) Upon the exchange of a Global Security for [Senior
Debt Securities] in definitive certificated form, in authorized
denominations, such Global Security shall be cancelled by the Trustee.
(h) Whenever the Depository requests the Company and the
Trustee to do so, the Trustee and the Company will cooperate with the
Depository in taking appropriate action after reasonable notice to (i)
make available one or more separate Global Securities evidencing the
[Senior Debt Securities] to any Participant having [Senior Debt
Securities] credited to its account at the Depository, or (ii) arrange
for another Depository to maintain custody of the Global Security or
Securities evidencing the [Senior Debt Securities].
(i) In connection with any notice or other communication
to be provided to holders of the [Senior Debt Securities] pursuant to
the Indenture and this Series _____ Supplement by the Company or the
Trustee with respect to any consent or other action to be taken by
holders of the [Senior Debt Securities], the Company or the Trustee,
as the case may be, shall establish a record date for such consent or
other action and give the Depository notice of such record date not
less than 15 calendar days in advance of such record date to the
-6-
<PAGE> 8
extent possible. Such notice to the Depository shall be given only so
long as a Depository or its nominee is the sole record holder of the
[Senior Debt Securities].
SECTION 14. Confirmation of FINA, Inc. Guarantee.
The Guarantor hereby acknowledges and confirms that its Guarantee with
respect to each Series of Senior Debt Securities, on the terms and subject to
the conditions set forth in Article Three of the Indenture, shall be fully
applicable to the [Senior Debt Securities].
SECTION 15. Certain Defined Terms.
All terms used in this Series _____ Supplement which are defined in
the Indenture, either directly or by reference therein, have the respective
meanings assigned to them therein, except to the extent such terms are defined
in this Series _____ Supplement or the context clearly requires otherwise.
SECTION 16. Counterparts.
This Series _____ Supplement may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 17. Governing Law.
This Series _____ Supplement and each [Senior Debt Security] issued
hereunder shall be deemed to be a contract made under the laws of the State of
Texas, and for all purposes shall be construed in accordance with the laws of
said State, provided that the rights, duties, immunities and standard of care
of the Trustee shall be governed by and construed in accordance with the laws
of the United States of America.
SECTION 18. Acceptance of Trusts.
Texas Commerce Bank National Association hereby accepts the trusts in
this Series _____ Supplement declared and provided, upon the terms and
conditions herein and in the Indenture set forth.
SECTION 19. Ratification of Indenture.
As supplemented by this Series _____ Supplement, the Indenture is in
all respects ratified and confirmed and the Indenture as so supplemented by
this Series _____ Supplement shall be read, taken and construed as one and the
same instrument.
[Insert additional provisions as necessary]
-7-
<PAGE> 9
IN WITNESS WHEREOF, the Company, the Guarantor and the Trustee have
caused this Series _____ Supplement to be duly executed by their respective
officers thereunto duly authorized and their respective seals duly attested to
be hereunto affixed all as of the day and year first above written.
FINA OIL AND CHEMICAL COMPANY
[SEAL]
By:_____________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
___________________________________
Linda Middleton,
Secretary
FINA, INC.
[SEAL]
By:_____________________________________
Yves Bercy,
Vice President, Chief Financial
Officer and Treasurer
ATTEST:
___________________________________
Linda Middleton,
Assistant Secretary
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
[SEAL]
By:_____________________________________
Name:___________________________________
Title:__________________________________
ATTEST:
___________________________________
[Name & Title]
-8-
<PAGE> 10
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA
OIL AND CHEMICAL COMPANY, a Delaware corporation, and that they executed the
same as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19_____.
____________________________________
Notary Public in and for the
State of Texas
My commission expires:
_____________________________________
[Type or print name]
___________________________
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Yves Bercy and Linda Middleton, known to
me to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said FINA,
INC., a Delaware corporation, and that they executed the same as the act of
said corporation for the purposes and consideration therein expressed, and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19_____.
____________________________________
Notary Public in and for the
State of Texas
My commission expires:
____________________________________
[Type or print name]
___________________________
-9-
<PAGE> 11
STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared __________________, known to me to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, a national banking association, and that he executed the
same as the act of said banking association for the purposes and consideration
therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____ day of
_______________________, 19___.
____________________________________
Notary Public in and for the State of
Texas
My commission expires:
____________________________________
[Type or print name]
___________________________
-10-
<PAGE> 1
EXHIBIT (5a)
FINA OIL AND CHEMICAL COMPANY
FINA, INC.
FINA PLAZA
DALLAS, TEXAS 75206
June 26, 1996
FINA, Inc.
FINA Plaza
Dallas, Texas 75206
Fina Oil and Chemical Company
FINA Plaza
Dallas, Texas 75206
RE: SENIOR DEBT SECURITIES AND GUARANTEE
Gentlemen and Ladies:
I am Senior Vice President, Secretary and General Counsel of FINA,
Inc., a Delaware corporation ("FINA"), and the Senior Vice President and
General Counsel of Fina Oil and Chemical Company, a Delaware corporation and a
direct, wholly-owned subsidiary of FINA ("FOCC" and, collectively with FINA,
the "Registrants"), and have acted in such capacities in connection with the
proposed issuance and sale by FOCC of up to $125,000,000 aggregate principal
amount of senior debt securities ("Senior Debt Securities") and the guarantee
of FINA applicable thereto (the "Guarantee"), to certain underwriters to be
named later (the "Underwriters"), such sales to be made in accordance with the
terms of an Underwriting Agreement (the "Underwriting Agreement") to be entered
into by and between FOCC and a representative or representatives of the
Underwriters (the "Representative"), in substantially the form filed as an
Exhibit to the Registration Statement (as such term is hereinafter defined),
and a Pricing Agreement (the "Pricing Agreement") with respect to each series
of Senior Debt Securities to be entered into by and between FOCC and the
Representative, on behalf of itself and the other Underwriters, if any, named
therein, in substantially the form filed as an Exhibit to the Registration
Statement.
Each series of Senior Debt Securities will be issued under and the
Guarantee of FINA applicable thereto will be set forth in an Indenture (the
"Indenture") to be entered into by and among FINA, as guarantor, FOCC, as
issuer, and Texas Commerce Bank National Association, as trustee (the
"Trustee"), relating to FOCC's series of Senior Debt Securities and FINA's
Guarantee, a form of which Indenture is filed as an Exhibit to the Registration
Statement, as supplemented by a Supplemental Indenture (the "Supplemental
Indenture") with respect to the Senior Debt Securities of each particular series
to be entered into by and among FINA, as guarantor, FOCC, as issuer, and the
Trustee, in substantially the form filed as an Exhibit to the Registration
Statement.
<PAGE> 2
FINA, Inc.
Fina Oil and Chemical Company
June 26, 1996
Page 2
As Senior Vice President, Secretary and General Counsel of FINA, and
Senior Vice President and General Counsel of FOCC, I have participated in and
am familiar with the corporate proceedings of the Registrants relating to the
preparation of the Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "Commission") on this date (the "Registration
Statement"), providing for the registration of the Senior Debt Securities, and
the Guarantee applicable thereto, for offering and sale to the Underwriters
from time to time under the Securities Act of 1933, as amended (the "1933
Act"), and Rule 415 promulgated thereunder.
In connection with the foregoing, I have researched such questions of
law and examined the originals or copies of the Registration Statement and the
forms of the Underwriting Agreement, Pricing Agreement, Indenture and
Supplemental Indenture filed as Exhibits to the Registration Statement, and
such corporate records, agreements or other instruments of the Registrants and
other instruments and documents as I have deemed relevant and necessary to
require as a basis for the opinions hereinafter expressed. As to various
questions of fact material to such opinions, I have, where relevant facts were
not independently established by me, relied upon statements of other officers
of the Registrants, whom I believe to be responsible.
Based upon the foregoing and in reliance thereon, I advise you that in
my opinion when (i) the series of Senior Debt Securities to be sold by FOCC to
the Underwriters and the other matters relating thereto shall have been approved
by the Board of Directors of FOCC (or a duly appointed and authorized committee
thereof), (ii) the Guarantee by FINA of the Senior Debt Securities of such
series and the other matters relating thereto shall have been approved by the
Board of Directors of FINA (or a duly appointed and authorized committee
thereof), (iii) the Registration Statement shall have become effective under the
1933 Act, (iv) the Underwriting Agreement, Pricing Agreement, Indenture and
Supplemental Indenture with respect to such series of Senior Debt Securities
shall have been authorized, executed and delivered by the parties thereto in
substantially the forms filed as Exhibits to the Registration Statement, and (v)
the Senior Debt Securities of such series shall have been issued, executed,
authenticated, delivered and sold in accordance with the provisions of the
Indenture and the Underwriting Agreement, Pricing Agreement and Supplemental
Indenture relating thereto, (A) the Senior Debt Securities of such series will
be validly issued and will constitute valid and binding obligations of FOCC,
enforceable against FOCC in accordance with their terms, except as enforcement
thereof may be limited by (I) equitable principles which may limit the
availability of certain equitable remedies (such as specific performance) in
certain instances, (II) applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws related to or affecting creditors' rights generally,
and (III) a holding or judicial determination by a court of competent
jurisdiction that such obligations violate public policy of the State of Texas;
and (B) the Guarantee of FINA with respect to such series of Senior Debt Series
will by duly authorized and will constitute the valid and binding obligation of
FINA, enforceable against FINA in accordance with the terms set forth in the
Indenture, except as enforcement thereof may be limited by equitable principles
which may limit the availability of certain equitable securities (such as
specific performance) in certain instances and applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws related to or affecting
creditors' rights generally.
<PAGE> 3
FINA, Inc.
Fina Oil and Chemical Company
June 26, 1996
Page 3
The opinions expressed above are subject to the qualification that I
am a member of the Bar of the State of Texas and such opinions are limited to
the laws of the State of Texas, the laws of the United States of America and,
to the extent relevant to the opinion expressed above, the General Corporation
Law of the State of Delaware (based solely upon a reading of such statute and
without consideration of any judicial or administrative interpretations
thereof).
I hereby consent to the reference to me under the caption "Legal
Opinions" in the Prospectus included in the Registration Statement and to the
filing of this opinion as Exhibit (5a) to the Registration Statement. The
foregoing, however, shall not constitute an admission by me that I am an expert
as provided for in Sections 7 and 11 of the 1933 Act.
Very truly yours,
Cullen M. Godfrey,
Senior Vice President
and General Counsel of
Fina Oil and Chemical Company
and
Senior Vice President,
Secretary and General Counsel of
FINA, Inc.
<PAGE> 1
EXHIBIT (12a)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
FINA, INC. CONSOLIDATED
<TABLE>
<CAPTION>
For the Three
Months Ended
March 31, For the Fiscal Years Ended December 31,
--------------- -------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------ ------ ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Net pre-tax earnings 57,558 51,438 161,078 152,357 96,115 20,110 53,563
Fixed charges 13,878 15,832 61,561 56,010 69,106 71,743 87,199
Adjustment for Capitalized
Interest (1,192) (1,350) (7,873) (2,422) (3,234) (2,702) (12,371)
------ ------ ------- ------- ------- ------- -------
Earnings as adjusted (A) 70,244 65,920 214,766 205,945 161,987 89,151 128,391
Fixed charges:
Interest expense 10,930 13,308 50,707 47,023 58,190 61,762 79,178
Rents under leases representative
of an interest factor(1) 2,948 2,524 10,854 8,987 10,916 9,981 8,021
------ ------ ------- ------- ------- ------- -------
Fixed charges as adjusted (B) 13,878 15,832 61,561 56,010 69,106 71,743 87,199
Ratio of earnings to fixed
charges: (A) divided by (B) 5.1 4.2 3.5 3.7 2.3 1.2 1.5
</TABLE>
- --------------------------------------------------------------------------------
FOCC CONSOLIDATED
<TABLE>
<CAPTION>
For the Three
Months Ended
March 31, For the Fiscal Years Ended December 31,
--------------- --------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------ ------ ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Net pre-tax earnings 41,055 50,384 152,824 145,819 100,147 17,818 53,901
Fixed charges 13,843 15,801 61,420 55,863 68,747 71,557 86,852
Adjustment for Capitalized
Interest (1,184) (1,335) (7,788) (2,371) (3,198) (2,663) (12,269)
------ ------ ------- ------- ------- ------- -------
Earnings as adjusted (A) 53,714 64,850 206,456 199,311 165,696 86,712 128,484
Fixed charges:
Interest expense 10,928 13,307 50,706 47,021 58,182 61,717 79,005
Rents under leases representative
of an interest factor(1) 2,915 2,494 10,714 8,842 10,565 9,840 7,847
------ ------ ------- ------- ------- ------- -------
Fixed charges as adjusted (B) 13,843 15,801 61,420 55,863 68,747 71,557 86,852
Ratio of earnings to fixed
charges: (A) divided by (B) 3.9 4.1 3.4 3.6 2.4 1.2 1.5
</TABLE>
(1) Management of the Company believes approximately one-third of rental and
lease expense is representative of the interest component of rent expense.
<PAGE> 1
EXHIBIT (23a)
INDEPENDENT AUDITORS' CONSENT
We consent to the use of our reports included herein and incorporated
herein by reference and to the reference to our firm under the headings "Summary
of Selected Financial Data" and "Experts" in the Prospectus. Our report refers
to a change in 1995 in the method of accounting for long-lived assets to adopt
the provisions of the Financial Accounting Standards Board's Statement of
Financial Accounting Standard No. 121.
KPMG Peat Marwick LLP
Dallas, Texas
June 26, 1996
<PAGE> 1
EXHIBIT (25a)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
F O R M T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)____.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
ORGANIZED UNDER THE LAWS OF 75-1992896
THE UNITED STATES OF AMERICA (I.R.S. employer
(State of incorporation identification no.)
if not a National Bank)
P.O. BOX 2320 75221-2320
DALLAS, TEXAS (Zip Code)
(Address of principal executive offices)
LEE BOOCKER
TEXAS COMMERCE BANK N A
600 TRAVIS
HOUSTON, TEXAS 77002
(713) 216-2448
(Name, address and telephone
number of agent for service)
--------------------------------------------
FINA OIL AND CHEMICAL COMPANY
FINA, INC
(Exact name of obligors as specified in their charters)
DELAWARE 75-0990403
DELAWARE 13-1820692
(States or other jurisdictions of (I.R.S. employer
incorporation or organization) identification nos.)
FINA PLAZA
DALLAS, TEXAS 75206
(Address of each obligor's principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES, VARIOUS SERIES
(Title of the indenture securities)
1
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
-------------------------------------------------------------
<TABLE>
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank Dallas, Texas
Federal Deposit Insurance Corporation Washington, D.C.
National Bank Examiners Dallas, Texas
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility:
<TABLE>
<S> <C>
Exhibit 1. A copy of the Articles of Association of the Trustee as now in effect.
Exhibit 2. A copy of the certificate of authority of the Trustee to commence business.
Exhibit 3. A copy of the authorization of the Trustee to exercise corporate trust powers.
Exhibit 4. A copy of the existing bylaws of the Trustee.
Exhibit 5. Not Applicable.
Exhibit 6. The consents of the United States institutional trustees required by Section 321(b) of
the Trust Indenture Act of 1939.
Exhibit 7. A copy of the latest report of condition of the Trustee published pursuant to law or
the requirements of its supervising or examining authority.
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable.
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Exhibit 1. Incorporated by reference to exhibit bearing the same designation and previously filed
with the Securities and Exchange Commission as exhibit to the Form S-3 File No.
333-02927.
Exhibit 2. Incorporated by reference to exhibit bearing the same designation and previously filed
with the Securities and Exchange Commission as exhibit to the Form S-3 File No.
333-02927.
Exhibit 3. Incorporated by reference to exhibit bearing the same designation and previously filed
with the Securities and Exchange Commission as exhibit to the Form S-3 File No.
333-02927.
Exhibit 4. Incorporated by reference to exhibit bearing the same designation and previously filed
with the Securities and Exchange Commission as exhibit to the Form S-3 File No.
333-02927.
Exhibit 6. Filed herewith.
Exhibit 7. Incorporated by reference to exhibit bearing the same designation and previously filed
with the Securities and Exchange Commission as exhibit to the Form S-3 File No.
333-02927.
</TABLE>
The answer to Item 2 is based in part on information provided or
confirmed by the obligor. The accuracy and completeness of such information is
hereby disclaimed by the Trustee.
3
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Dallas, and State of Texas, on the 26th day of June 1996.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JOHN G. JONES
-------------------------------------
Name: John G. Jones
Title: Vice President and Trust Officer
4
<PAGE> 5
EXHIBIT 6
Texas Commerce Bank National Association, as a condition to
qualification under the Trust Indenture Act of 1939, consents that reports of
examinations by federal, state, territorial, or district authorities may be
furnished by such authorities to the Securities and Exchange Commission of the
United States upon request of said Commission for said reports, as provided in
Section 321 of said Trust Indenture Act of 1939.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JOHN G. JONES
-------------------------------------
Name: John G. Jones
Title: Vice President and Trust Officer
Date: June 26, 1996
5
