<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
ORYX ENERGY COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 1311 23-1743284
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer identification
incorporation or organization) classification code number) no.)
</TABLE>
---------------------
<TABLE>
<S> <C>
EDWARD W. MONEYPENNY
EXECUTIVE VICE PRESIDENT, FINANCE,
13155 NOEL ROAD AND CHIEF FINANCIAL OFFICER
DALLAS, TEXAS 75240-5067 13155 NOEL ROAD
(972) 715-4000 ORYX ENERGY COMPANY
(Address, including zip code, and telephone number, DALLAS, TEXAS 75240-5067
including area code, of Registrant's principal (972) 715-4000
executive offices) (Name, address, including zip code, and telephone
number,
including area code, of agent for service)
</TABLE>
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COPIES TO:
<TABLE>
<S> <C>
EDWARD D. SOPHER, ESQ. JONATHAN R. ROD, ESQ.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. MILBANK, TWEED, HADLEY & MCCLOY
590 MADISON AVENUE 1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10005
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box. [
]
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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 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. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES BEING TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1) FEE(3)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities; Preferred Stock; and Common
Stock......................................... $500,000,000 100% $500,000,000 $149,090.90
====================================================================================================================
</TABLE>
(1) Such amount in U.S. dollars or the equivalent thereof in foreign currencies
as shall result in an aggregate initial offering price of all Securities
equal to $500,000,000.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee.
(3) A filing fee of $2,758 was previously paid by the Registrant with respect to
$8,000,000 of the securities previously registered under the Registrant's
Registration Statement on Form S-3 (File No. 33-45611), resulting in a net
fee of $149,090.90.
---------------------
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included herein also relates to a total of $8,000,000 of securities
currently registered under Registration Statement No. 33-45611.
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
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 AUGUST [ ], 1997.
PROSPECTUS
$500,000,000
ORYX ENERGY COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
Oryx Energy Company (Company) may offer from time to time in one or more
series its unsecured debt securities (Debt Securities). The Debt Securities may
be senior debt securities (Senior Debt Securities), senior subordinated debt
securities (Senior Subordinated Debt Securities) or subordinated debt securities
(Subordinated Debt Securities). The Subordinated Debt Securities may be
convertible into shares of Common Stock, $1.00 par value, of the Company (Common
Stock). The Company may also from time to time offer shares of Common Stock or
Preferred Stock, $1.00 par value, of the Company (Preferred Stock). The
aggregate offering price of the Debt Securities, the Common Stock and the
Preferred Stock offered hereby (Securities) will not exceed $500,000,000. The
Company will offer the Securities to the public from time to time on terms
determined by market conditions.
The Senior Debt Securities will be senior obligations of the Company,
unsecured and unsubordinated to any other existing indebtedness of the Company.
Because the Company is a holding company, the Senior Debt Securities will be
effectively subordinated to the indebtedness (including trade payables) of the
Company's subsidiaries outstanding from time to time.
The Senior Subordinated Debt Securities will be subordinated in right of
payment to all present and future Senior Debt of the Company as defined herein
and senior in right of payment to the Subordinated Debt Securities, including
the Company's outstanding 7 1/2% Convertible Subordinated Debentures Due 2014.
The Subordinated Debt Securities will be subordinated in right of payment
to all present and future Senior Debt of the Company, which as to the
Subordinated Debt Securities is defined to include the Senior Subordinated Debt
Securities.
An accompanying Prospectus Supplement relating to Debt Securities will set
forth the specific terms of the offering and sale of such Debt Securities,
including the specific designation, aggregate principal amount, purchase price,
maturity, interest rate (or manner of calculation thereof), time of payment of
interest, terms for conversion (if any), listing (if any) on a securities
exchange, any terms for mandatory or optional redemption and any other specific
terms of the series of Debt Securities in respect of which this Prospectus is
being delivered (Offered Debt Securities).
The Offered Debt Securities may be issuable in registered definitive form
(Certificated Notes) or may be represented by one or more permanent global
securities (Global Notes), as specified in the applicable Prospectus Supplement.
Except in limited circumstances, owners of beneficial interests in a Global Note
will not be entitled to receive physical delivery of Certificated Notes and will
not be considered the holders thereof. See "Description of Debt
Securities -- Book-Entry System."
The Prospectus Supplement relating to Preferred Stock will set forth the
specific designation, number of shares, rights, preferences, privileges and
restrictions, including dividend rate (or manner of calculation thereof), time
of payment of dividends, liquidation value, terms for conversion (if any),
voting rights, listing (if any) on a securities exchange, any terms for
mandatory or optional redemption and any other specific terms of the series of
Preferred Stock in respect of which this Prospectus is being delivered (Offered
Preferred Stock, and together with Offered Debt Securities and any Common Stock
offered by such Prospectus Supplement, Offered Securities).
The Securities will be sold either through underwriters, dealers or agents,
or directly by the Company. The applicable Prospectus Supplement will set forth
the names of any underwriters or agents involved in the sale of the Offered
Securities, the proposed amounts, if any, to be purchased by underwriters and
the compensation, if any, of such underwriters or agents.
The Common Stock is listed on the New York Stock Exchange.
---------------------
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 Securities unless
accompanied by a Prospectus Supplement.
---------------------
The date of this Prospectus is August [ ], 1997
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THAT INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO ITS DATE.
---------------------
AVAILABLE INFORMATION
The Company (Commission File No. 1-10053) is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (Exchange Act),
and in accordance therewith files reports, proxy and information statements and
other information with the Securities and Exchange Commission (Commission). Such
reports, proxy and information statements and other information can be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at Suite 1400, Northwest Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New
York 10048. Such material may also be accessed electronically by means of the
Commission's home page on the internet at http://www.sec.gov. Copies of such
material can also be obtained from the Public Reference Section of the
Commission in Washington, D.C. 20549 at prescribed rates. In addition, such
material and other information concerning the Company can be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments, supplements and exhibits thereto,
referred to as the Registration Statement) under the Securities Act of 1933, as
amended (Securities Act), with respect to the Securities offered hereby. This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
---------------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following documents filed with the Commission (File No. 1-10053): (i) the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 1996;
(ii) the Quarterly Report on Form 10-Q of the Company for the quarter ended
March 31, 1997 and (iii) the Quarterly Report on Form 10-Q of the Company for
the quarter ended June 30, 1997.
All documents filed by the Company pursuant to Section 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 Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement 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. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits) may be obtained upon
request without charge from the Company, 13155 Noel Road, Dallas, Texas
75240-5067; Attn: Mr. Robert L. Thompson, Comptroller, telephone (972) 715-4000.
2
<PAGE> 4
THE COMPANY
Oryx Energy Company (together with its consolidated subsidiaries, unless
the context otherwise requires, Company) engages in the oil and gas exploration
and production business. The Company has operations in six producing countries
around the world: the onshore and offshore U.S., the U.K. North Sea, Ecuador,
Kazakstan, Australia and Algeria. The Company continues to pursue exploration,
development and selective acquisitions in areas in which it is currently
operating with a view to increasing current production volumes and cash flow
from operations. The Company's business in the United States is conducted
through Sun Energy Partners, L.P. (Partnership), of which the Company is the
Managing General Partner and owns a 98 percent interest.
The Company was incorporated in Delaware in 1971. The Company's principal
executive office is located at 13155 Noel Road, Dallas, Texas 75240-5067 and the
telephone number is (972) 715-4000.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including repayment of existing indebtedness,
capital expenditures and working capital requirements. Any specific allocation
of the net proceeds of an offering of Securities will be described in the
related Prospectus Supplement. The precise amount and timing of sales of the
Securities will be dependent on the Company's capital requirements and market
conditions and the availability and cost of other funds to the Company.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The following table sets forth the consolidated ratios of earnings to fixed
charges and earnings to fixed charges and preferred stock dividend requirements
for the Company for the periods indicated.
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED DECEMBER 31
ENDED ----------------------------------------
JUNE 30, 1997 1996 1995* 1994* 1993* 1992*
------------- ---- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.... 3.17 3.17 1.83 -- -- --
Ratio of earnings to fixed charges and
preferred stock dividend
requirements........................ 3.17 3.17 1.83 -- -- --
</TABLE>
- ---------------
* Earnings were inadequate to cover fixed charges, or fixed charges and
preferred stock dividend requirements, by $97 million for 1994, $147 million
for 1993 and $44 million for 1992.
DESCRIPTION OF THE DEBT SECURITIES
The following sets forth certain general terms and provisions of the
indentures under which the Debt Securities are to be issued. The particular
terms of the Offered Debt Securities will be set forth in the Prospectus
Supplement relating to such Offered Debt Securities.
The Senior Debt Securities may be issued in one or more series under an
indenture dated as of September 15, 1988, as amended and supplemented by the
First Supplemental Indenture dated as of April 1, 1991 (Senior Indenture)
between the Company and The Bank of New York, as trustee (Senior Trustee). The
Senior Subordinated Debt Securities may be issued in one or more series under an
indenture (Senior Subordinated Indenture) between the Company and IBJ Schroder
Bank & Trust Company as trustee (Senior Subordinated Trustee). The Subordinated
Debt Securities may be issued in one or more series under an indenture
(Subordinated Indenture) between the Company and Bank of Montreal Trust Company,
as trustee (Subordinated Trustee).
3
<PAGE> 5
The Senior Indenture, the Senior Subordinated Indenture and the
Subordinated Indenture are sometimes hereinafter collectively referred to as the
Indentures. The Senior Trustee, the Senior Subordinated Trustee and the
Subordinated Trustee are sometimes hereinafter collectively referred to as the
Trustees.
Copies of the Indentures have been filed as exhibits to the Registration
Statement. The following summary of the material provisions of the Indentures is
subject to, and is qualified in its entirety by reference to, all provisions of
the Indentures and the Debt Securities, including the definitions therein of
certain terms.
GENERAL PROVISIONS APPLICABLE TO THE INDENTURES
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued by the Company and provide that Debt Securities
may be issued from time to time in series. Unless otherwise specified in an
applicable Prospectus Supplement with respect to a series of Debt Securities,
the Debt Securities will be issued in registered form in denominations of $1,000
and any multiple thereof. The Debt Securities of any series will be issued
initially as either certificated notes or global notes, as specified in the
applicable Prospectus Supplement. Except as set forth under "Description of the
Debt Securities -- Book-Entry System," global notes will not be issuable as
certificated notes. Principal is to be payable, and the Debt Securities will be
transferable and exchangeable, at the office or agency of the Company maintained
for such purposes in New York City, which initially will be the Corporate Trust
Office of the applicable Trustee; provided that global notes will be
exchangeable only in the manner and to the extent set forth under "Book-Entry
System." The Debt Securities may be transferred, combined or divided without
payment of any charge other than taxes or other governmental charges. Payment of
interest may, at the option of the Company, be made by check mailed to such
registered holders.
Because the Company conducts substantially all of its operations through
its subsidiaries (including the Partnership), the Company's rights and the
rights of its creditors, including the holders of the Debt Securities, to
participate in the distribution of the assets of the subsidiaries of the
Company, including the Partnership, upon any liquidation or reorganization of
any such subsidiary, or otherwise, will be subject to the prior claims of
creditors of such subsidiaries, except to the extent that the Company may itself
be a creditor with recognized claims against any subsidiary. The ability of the
Company to pay principal and interest on the Debt Securities is, to a large
extent, dependent upon the payment to it of distributions, dividends, interest
or other amounts by its subsidiaries (including the Partnership).
The Prospectus Supplement will describe the following terms of the Offered
Debt Securities: (1) the title of the Offered Debt Securities; (2) any limit on
the aggregate principal amount of the Offered Debt Securities; (3) the date or
dates on which the Offered Debt Securities may be issued and are, or will be,
payable; (4) the rate or rates per annum (which may be fixed or variable) at
which the Offered Debt Securities will bear interest or the method by which such
rate or rates shall be determined and the date or dates from which such interest
will accrue; (5) the date or dates on which such interest on the Offered Debt
Securities will be payable and the record dates for the determination of holders
to whom interest is payable on any such interest payment dates; (6) each office
or agency where, subject to the terms of the applicable Indenture, the principal
of, and premium, if any, and any interest on the Offered Debt Securities will be
payable and each office or agency where, subject to the terms of the applicable
Indenture, the Offered Debt Securities may be presented for registration of
transfer or exchange; (7) the period or periods within which, the price or
prices at which, and the terms and conditions, if any, upon which the Offered
Debt Securities may be redeemed at the option of the Company; (8) the
obligation, if any, of the Company to redeem, to repay or purchase the Offered
Debt Securities pursuant to any sinking fund or analogous provisions or at the
option of a holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which the Offered Debt
Securities will be redeemed, repaid or purchased pursuant to any such
obligation; (9) in the case of Subordinated Debt Securities, whether and upon
what terms such Debt Securities will be convertible into Common Stock; (10)
whether the Offered Debt Securities are to be issued with original issue
discount within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended (Code), and the regulations thereunder; (11) any addition to,
or modification or deletion of, any Events of Default or covenants provided for
with respect to the Offered Debt Securities; (12) whether the Offered Debt
Securities are to be issued as certificated notes or global notes; (13) the
currency or currencies
4
<PAGE> 6
(including composite currencies) in which payments on the Offered Debt
Securities are to be made if other than U.S. dollars; and (14) any other
detailed terms and provisions of the Offered Debt Securities which are not
inconsistent with the applicable Indenture. Any such Prospectus Supplement will
also describe any special provisions for the payment of additional amounts with
respect to the Offered Debt Securities.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a discount below their principal amount. Original Issue Discount
Securities means any Debt Securities issued with "original issue discount"
within the meaning of Section 1273(a) of the Code and the regulations
thereunder. United States income tax and other considerations applicable to
Original Issue Discount Securities will be described in the Prospectus
Supplement relating thereto. Original Issue Discount Securities may provide for
the declaration of acceleration of the maturity of an amount less than the
principal amount thereof upon the occurrence of an Event of Default and the
continuation thereof.
Book-Entry System
If so specified in the applicable Prospectus Supplement, a series of
Offered Debt Securities may be issued as global notes. Each global note will be
deposited with, or on behalf of, a depositary, which, unless otherwise specified
in the applicable Prospectus Supplement, will be The Depository Trust Company,
New York, New York (Depositary), and registered in the name of a nominee of the
Depositary. Certificated notes will not be exchangeable for global notes and,
except under the circumstances described below, global notes will not be
exchangeable for certificated notes and will not otherwise be issuable as
certificated notes.
The Depositary has advised the Company as follows: The Depositary is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, 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 Exchange Act. The Depositary
holds securities that its participants (Participants) deposit with the
Depositary. The Depositary also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. The Depositary
is owned by a number of its direct participants and by the New York Stock
Exchange, Inc., the American Stock Exchange Inc. and the National Association of
Securities Dealers, Inc. Access to the Depositary Trust Company system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a direct
participant, either directly or indirectly. The Rules applicable to the
Depositary and its Participants are on file with the Commission.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a global note to be deposited with or
on behalf of the Depositary will be represented by a global note registered in
the name of such depositary or its nominee. Upon the issuance of a global note
in registered form, the Depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt Securities
represented by such global note to the accounts of institutions that have
accounts with such depositary or its nominee (participants). The accounts to be
credited shall be designated by the underwriters or agents of such 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 notes
will be limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such global
notes will be shown on, and the transfer of that ownership interest will be
effected only through, records maintained by the Depositary or its nominee for
such global notes. Ownership of beneficial interests in global notes 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 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 note.
5
<PAGE> 7
So long as the Depositary for a global note in registered form, or its
nominee, is the registered owner of such global note, such depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such global note for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in such
global note will not be entitled to have Debt Securities of the series
represented by such global note registered in their names, will not receive or
be entitled to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owner or holders thereof under
the applicable Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by the Depositary or its nominee
will be made to the Depositary or its nominee, as the case may be, as the
registered owner or the holder of the global note representing such Debt
Securities. None of the Company, the Trustee, any paying agent or the registrar
for such 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 note for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of any permanent global
note, the Depositary will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such global note as shown on the records of such
depositary. The Company also expects that payments by participants to owners of
beneficial interests in such global note 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 will be the responsibility of such participants.
A global note may not be transferred except as a whole by the Depositary to
a nominee of such depositary or by a nominee of such depositary to such
depositary or another nominee of such depositary or by such depositary or any
such nominee to a successor of such depositary or a nominee of such successor.
If the Depositary is at any time unwilling or unable to continue as depositary
and a successor depositary is not appointed by the Company within ninety days,
the Company will issue certificated notes in definitive registered form in
exchange for the global note or Notes representing such Debt Securities. In
addition, the Company may at any time and in its sole discretion determine not
to have any Debt Securities in registered form represented by one or more global
notes and, in such event, will issue certificated notes in definitive form in
exchange for the global note or Notes representing such Debt Securities. In any
such instance, an owner of a beneficial interest in a global note will be
entitled to physical delivery in definitive form of certificated notes of the
series represented by such global note equal in principal amount to such
beneficial interest and to have such certificated notes registered in its name.
Consolidation, Merger or Sale
Nothing contained in the Indentures prevents any consolidation or merger of
the Company with or into any other corporation or corporations (whether or not
affiliated with the Company) or any sale or conveyance of all or substantially
all the property of the Company to any other corporation, provided that upon any
such consolidation, merger, sale or conveyance of or by the Company, other than
a consolidation or merger in which the Company is the continuing corporation,
the due and punctual payment of the principal of, and premium, if any, and
interest on, all of the Debt Securities, according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of
the Indentures and the Debt Securities to be performed by the Company, are
expressly assumed by the corporation formed by such consolidation, or into which
the Company shall have been merged, or by the corporation which shall have
acquired such property.
Modification of the Indentures
The Indentures contain provisions permitting the Company and the applicable
Trustee, with the consent of the holders of not less than 66 2/3 percent in
principal amount of the outstanding Debt Securities of each series affected, to
modify the applicable Indenture or any applicable supplemental indenture or the
rights of
6
<PAGE> 8
the holders of the Debt Securities of such series; provided that no such
modification shall without the consent of the holders of each outstanding Debt
Security affected thereby (a) change the fixed date upon which the principal of
or the interest on any Debt Security is due and payable, or reduce the principal
amount thereof or the rate of interest thereon or any amount payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be payable upon a declaration of acceleration of
the maturity thereof, or change the place or places where, or the currency in
which, any Debt Security or any interest thereon is payable, or impair the right
to institute suit for the enforcement of any payment on or after the date on
which such is due (or, in the case of redemption, on or after the date fixed for
redemption) or, in the case of Subordinated Debt Securities, impair the right to
convert such Debt Securities into Common Stock or, in the case of Senior
Subordinated Debt Securities and Subordinated Debt Securities, modify the
provisions of the Senior Subordinated Indenture or the Subordinated Indenture,
respectively, with respect to the subordination of such Debt Securities in a
manner adverse to holders thereof or (b) reduce the aforesaid percentage of Debt
Securities, the consent of the holders of which is required for any modification
of the applicable Indenture or for waiver by the holders of certain of their
rights.
The Indentures also contain provisions permitting the Company and the
applicable Trustee to amend the applicable Indenture in certain circumstances
without the consent of the holders of any Debt Securities to evidence the merger
of the Company, or the replacement of the applicable Trustee and for certain
other purposes.
Events of Default
An Event of Default with respect to Debt Securities of any series is
defined in the Indentures as being: default for 30 days in payment of any
interest of the Debt Securities of such series; default in payment of principal,
including the payment of principal when due pursuant to any redemption
provision, of the Debt Securities of such series; default for 90 days after
written notice in performance of any other covenant in the Indenture applicable
to the Securities of such series; provided, however, that such a default will
not be an Event of Default if it cannot with due diligence be cured within such
90-day period due to causes beyond the control of the Company; default under any
instrument evidencing indebtedness for borrowed money, if indebtedness in excess
of $10,000,000 is thereby accelerated and such acceleration is not rescinded
within 30 days after written notice is given to the Company by the applicable
Trustee or to the Company and the applicable Trustee by the holders of 25
percent or more in aggregate principal amount of the Debt Securities of that
series; certain events of bankruptcy, insolvency, reorganization, receivership
or liquidation involving the Company, the Partnership, Sun Operating Limited
Partnership or Oryx U.K. Energy Company; or any other Event of Default provided
with respect to Debt Securities of that series. The Company will be required to
file with the applicable Trustee annually an officers' certificate as to the
absence of default in performance of certain covenants in the Indentures. The
Indentures provide that the applicable Trustee may withhold notice to the
holders of the Debt Securities of any default (except in payment of principal
of, or interest on, the Debt Securities) if such Trustee considers it in the
interest of the holders of the Debt Securities to do so. The Indentures provide
that, if an Event of Default with respect to the Debt Securities of any series
specified therein shall have happened and be continuing, either the applicable
Trustee or the holders of 25 percent or more in aggregate principal amount of
the Debt Securities of that series may declare the principal amount (or if the
Debt Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of that series of Debt Securities) of
all the Debt Securities and the interest accrued thereon to be due and payable
immediately, but if the Company shall cure all defaults (except the nonpayment
of principal of and accrued interest on Debt Securities which shall be become
due by acceleration) and certain other conditions are met, such declaration may
be annulled and past defaults may be waived by the holders of a majority in
aggregate principal amount of the Debt Securities of that series.
Subject to the provisions of the Indentures relating to the duties of the
Trustees, the Trustees will be under no obligation to exercise any of its rights
or powers under the Indentures at the request or direction on any of the holders
of the Debt Securities, unless such holders shall have offered to the applicable
Trustee reasonable indemnity. Subject to such provision for indemnification, the
holders of a majority in principal amount of the Debt Securities of a particular
series will have the right to direct the time, method and place of
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conducting any proceeding for any remedy available to the applicable Trustee, or
exercising any trust or power conferred on the applicable Trustee with respect
to the Debt Securities of that series, provided that the applicable Trustee
shall have the right to decline to follow any such direction if such Trustee
shall determine that the action so directed conflicts with any law or the
provisions of the applicable Indenture or if such Trustee shall determine that
such action would involve such Trustee in personal liability or would be
prejudicial to holders not taking part in such direction.
Governing Law
The Indentures and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
Concerning the Trustees
The Bank of New York is Senior Trustee under the Senior Indenture and has
been appointed by the Company as Registrar and Paying Agent with regard to the
Senior Debt Securities.
IBJ Schroder Bank & Trust Company is expected to be the Senior Subordinated
Trustee under the Senior Subordinated Indenture and is expected to be appointed
by the Company as Registrar and Paying Agent with regard to the Senior
Subordinated Debt Securities. Affiliates of IBJ Schroder Bank & Trust Company
have other customary banking relationships with the Company.
Bank of Montreal Trust Company is expected to be the Subordinated Trustee
under the Subordinated Indenture and is expected to be appointed by the Company
as Registrar and Paying Agent with regard to the Subordinated Debt Securities.
Affiliates of the Bank of Montreal Trust Company have other customary banking
relations with the Company.
SENIOR INDENTURE PROVISIONS
General
The Senior Debt Securities will be senior obligations of the Company,
unsecured and unsubordinated to any other indebtedness of the Company. Because
the Company is a holding company, the Senior Debt Securities will be effectively
subordinated to the indebtedness (including trade payables) of the Company's
subsidiaries outstanding from time to time. As of June 30, 1997, the Company's
subsidiaries had aggregate indebtedness of $116 million outstanding to third
parties, including approximately $114 million of trade payables. The Senior
Indenture contains no restrictions on the ability of the Company or its
subsidiaries to incur additional indebtedness and except as set forth below, the
Senior Indenture contains no restrictions on the ability of the Company and its
subsidiaries to incur secured indebtedness.
Limitations on Liens
Nothing in the Senior Indenture or the Senior Debt Securities will in any
way limit the amount of indebtedness or securities (other than the Securities)
which may be incurred or issued by the Company or any of its subsidiaries. The
Senior Indenture provides that neither the Company nor any Restricted Subsidiary
(as defined below) will issue, assume or guarantee any notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed (Debt) secured by
a mortgage, lien, pledge or other encumbrance (Mortgage) upon any Restricted
Property (as defined below) without effectively providing that the outstanding
Senior Debt Securities (together with, if the Company so determines, any other
indebtedness or obligation then existing or thereafter created, ranking equally
with the Senior Debt Securities) shall be secured equally and ratably with (or
prior to) such Debt so long as such Debt shall be so secured. This restriction
will not, however, apply to (a) Mortgages on property to secure all or part of
the cost of exploration, drilling or development thereof or all or part of the
cost of altering or repairing equipment used in connection therewith or (in the
case of property which is, in the opinion of the Board of Directors,
substantially unimproved for the use intended by the Company) all or part of the
cost of improvement thereof, or to secure Debt incurred to provide funds for any
such purpose; (b) Mortgages which secure only indebtedness owing by
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a Subsidiary (as defined below) to the Company, or to one or more Subsidiaries,
or to the Company and one or more Subsidiaries; (c) Mortgages on the property of
any corporation or other entity existing at the time such corporation or entity
becomes a Subsidiary; (d) Mortgages on any property to secure Debt or other
indebtedness incurred in connection with the construction, installation or
financing of pollution control or abatement facilities or other forms of
industrial revenue bond financing or Debt issued or guaranteed by the United
States, any State or any department, agency or instrumentality of either; or (e)
any extension, renewal or replacement of any Mortgage referred to in the
foregoing clauses (a) through (d) or of any Mortgage existing on the date of
original issuance of the applicable series of Senior Debt Securities.
Notwithstanding the foregoing, the Company and any one or more Restricted
Subsidiaries may issue, assume or guarantee Debt secured by a Mortgage which
would otherwise be subject to the foregoing restrictions in an aggregate
principal amount which, together with the aggregate outstanding principal amount
of all other Debt of the Company and its Restricted Subsidiaries so secured, and
the aggregate value of the sale and lease-back transactions which would
otherwise be subject to the restrictions described under "Limitation on Sale and
Lease-Back," does not at the time such Debt is incurred exceed ten percent of
the Shareholders' Equity in the Company and its consolidated subsidiaries as
shown in the latest audited consolidated balance sheet of the Company. The
following types of transactions, among others, shall not be deemed to create
Debt secured by Mortgages: (1) the sale or other transfer of crude oil, natural
gas or other petroleum hydrocarbons in place for a period of time until, or in
an amount such that, the transferee will realize therefrom a specified amount
(however determined) of money or such crude oil, natural gas or other petroleum
hydrocarbons or the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment or as an overriding
royalty; and (2) Mortgages required by any contract or statute in order to
permit the Company or a Subsidiary to perform any contract or subcontract made
by it with or at the request of the United States, any State or any department,
agency or instrumentality of either, or to secure partial, progress, advance or
other payments to the Company or any Subsidiary by such governmental unit
pursuant to the provisions of any contract or statute.
The Senior Indenture contains no limitations on Mortgages on property
acquired or constructed after the date of original issuance of the applicable
series of Senior Debt Securities or property owned which is not Restricted
Property. The term Restricted Property is defined to mean any interest owned on
the date of original issuance of the applicable series of Senior Debt Securities
by the Company or a Subsidiary in property situated in the United States (both
onshore and offshore) classified by such owner as productive of crude oil,
natural gas or other petroleum hydrocarbons in paying quantities as of the date
of issuance of the applicable series of Senior Debt Securities and any shares of
capital stock or indebtedness of a Restricted Subsidiary. The term Restricted
Subsidiary is defined to mean any Subsidiary (as defined below) of the Company
which owns Restricted Property. The term Subsidiary is defined to mean any
corporation, partnership, association, company, business trust or other entity
in which the Company directly or indirectly (i) owns or controls a majority of
the outstanding voting securities having by the terms thereof ordinary voting
power to elect a majority of the board of directors (or other body fulfilling a
substantially similar function) of such entity (irrespective of whether or not
at the time any other class or classes of such voting securities shall have or
might have voting power by reason of the happening of any contingency) or (ii)
in the case of an entity which does not have a board of directors (or other body
fulfilling a substantially similar function) has the authority to control the
policies of such entity (including any partnership of which the Company or a
Subsidiary is a managing general partner).
Limitation on Sale and Lease-Back
The Senior Indenture provides that neither the Company nor any Restricted
Subsidiary will enter into any arrangement with any person (other than the
Company or a Restricted Subsidiary) providing for the leasing to the Company or
a Restricted Subsidiary for a period of more than three years of any Restricted
Property which has been, or is to be, sold or transferred by the Company or such
Restricted Subsidiary to such person or to any person (other than the Company or
a Restricted Subsidiary) to which funds have been or are to be advanced by such
person on the security of the leased property unless either (a) the Company or
such Restricted Subsidiary would be entitled, pursuant to the provisions
described under "Limitations on Liens" above, to incur Debt in a principal
amount equal to or exceeding the value of such sale and lease-back
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transaction, secured by a Mortgage on the property to be leased, without equally
and ratably securing the outstanding Senior Debt Securities, or (b) the Company,
during or immediately after the expiration of four months after the effective
date of such transaction, applies to the voluntary retirement of its
indebtedness maturing by its terms more than one year after the original
creation thereof (Funded Debt) an amount equal to the greater of the net
proceeds of the sale or transfer of the property leased in such transaction or
the fair value in the opinion of the Board of Directors of such property at the
time of entering into such transaction (in either case adjusted proportionately
to reflect the remaining term of the lease), less an amount equal to the sum of
(i) the principal amount of Senior Debt Securities delivered, within four months
after the effective date of such arrangement, to the Trustee for retirement and
cancellation and (ii) the principal amount of other Funded Debt voluntarily
retired by the Company within such four month period excluding retirements of
Senior Debt Securities and other Funded Debt as a result of conversions or
pursuant to mandatory sinking fund or mandatory prepayment provisions or by
payment at maturity.
The Senior Indenture contains no limitations on the sale and lease-back of
property acquired or constructed after the date of original issuance of the
applicable series of Senior Debt Securities or of any property owned which is
not Restricted Property.
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Offered Debt Securities, the covenants applicable to the
Senior Debt Securities would not necessarily afford holders protection in the
event of a highly leveraged transaction, a sale of assets, an incurrence of
additional unsecured debt or other similar transactions involving the Company,
whether or not involving a downgrade in the ratings accorded to the Senior Debt
Securities by any nationally recognized statistical rating organization.
Consolidation, Merger or Sale
In addition to the provisions described above under "General Provisions
Applicable to the Indentures -- Consolidation, Merger or Sale," the Senior
Indenture also provides that if, upon any consolidation or merger of the Company
with or into any other corporation or upon any sale or conveyance of all or
substantially all of its property to any other corporation, any of the property
of the Company or of any Subsidiary would thereupon become subject to any
mortgage, lien or pledge, the Company will before or at the time of such
consolidation, merger, sale or conveyance secure the Senior Debt Securities,
equally and ratably with any other obligations of the Company or any Subsidiary
then entitled thereto, by a direct lien on all such property prior to all liens
other than any liens already existing thereon.
Defeasance
Unless otherwise specified in the Prospectus Supplement with respect to the
Offered Debt Securities of any series, the Company, at its option, (a) will be
Discharged (as defined in the Senior Indenture) from any and all obligations in
respect of any series of Senior Debt Securities (except in each case for certain
obligations to register the transfer or exchange of Senior Debt Securities,
replace stolen, lost or mutilated Senior Debt Securities, maintain paying
agencies and hold moneys for payment in trust) or (b) need not comply with
certain covenants of the Indenture described under "General Provisions
Applicable to the Indentures" and "Senior Indenture Provisions" nor be subject
to the operation of the cross acceleration provisions described under "General
Provisions Applicable to the Indentures -- Events of Default" or to the
provisions relating to redemption of the Senior Debt Securities of such series,
in each case, if the Company irrevocably deposits with the Senior Trustee, in
trust, money or U.S. Government Obligations (as defined in the Senior Indenture)
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal of and interest on the Senior Debt Securities on the dates
such payments are due in accordance with the terms of such series of Senior Debt
Securities. To exercise any such option, the Company is required to deliver to
the Senior Trustee an opinion of counsel or revenue ruling to the effect that
the holders will not recognize income, gain or loss for Federal income tax
purposes as a result of the deposit and related defeasance and will be subject
to Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such defeasance had not occurred, and, in
the case of a Discharge pursuant to clause (a), if the issue of Senior Debt
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Securities is then listed on the New York Stock Exchange, an opinion of counsel
that the deposit and related defeasance would not subject such Senior Debt
Securities to delisting.
SENIOR SUBORDINATED INDENTURE PROVISIONS
General
The Senior Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Senior Subordinated Indenture will not limit the
amount of other indebtedness or securities which may be issued by the Company or
any of its subsidiaries.
Subordination of Senior Subordinated Debt Securities
The Senior Subordinated Debt Securities will rank senior to the Company's
outstanding 7 1/2% Convertible Subordinated Debentures Due 2014 and any other
Subordinated Debt Securities hereinafter issued, but will be subordinated and
subject, to the extent and in the manner set forth in the Senior Subordinated
Indenture, in right of payment to the prior payment in full of all Senior Debt
(as defined below) of the Company. No payment of principal (including redemption
and sinking fund payments) of, premium, if any, or interest on, the Senior
Subordinated Debt Securities may be made if any Senior Debt is not paid when
due, any applicable grace period with respect to such default has ended and such
default has not been cured or waived, or if the maturity of any Senior Debt has
been accelerated because of a default. During the continuance of any other event
of default with respect to Senior Debt for which maturity may be accelerated
immediately and if the Senior Subordinated Trustee has received written notice
on behalf of holders of such Senior Debt, the Company may not for 90 days from
receipt of such notice do anything which would be prohibited (as set out in the
immediately preceding sentence) if any Senior Debt has not been paid; however,
if the maturity of any such Senior Debt is not accelerated within 90 days
following the due date of any payments prevented by such default and notice, the
Company may resume payments on the Senior Subordinated Debt Securities. If
payment of the Senior Subordinated Debt Securities is accelerated because of an
Event of Default, prompt notice must be given to holders of Senior Debt, and the
Company may not pay the Senior Subordinated Debt Securities until 30 days after
the acceleration occurs (if any Senior Debt remains outstanding) and thereafter
may pay the Senior Subordinated Debt Securities only if the Senior Subordinated
Indenture otherwise permits. Upon any distribution of assets of the Company to
creditors upon any dissolution, winding-up, liquidation or reorganization,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Debt must be paid in full before the holders of the
Senior Subordinated Debt Securities are entitled to receive or retain any
payment. The rights of the holders of the Senior Subordinated Debt Securities
will be subrogated to the rights of the holders of Senior Debt to receive
payments or distributions applicable to Senior Debt until all amounts owing on
the Senior Subordinated Debt Securities are paid in full. By reason of such
subordination, in the event of insolvency, creditors of the Company who are
holders of Senior Debt may recover more, ratably, than the holders of the Senior
Subordinated Debt Securities, and creditors of the Company who are not holders
of Senior Debt or the Senior Subordinated Debt Securities or the Subordinated
Debt Securities may recover less, ratably, than holders of Senior Debt and may
recover more, ratably, than the holders of the Senior Subordinated Debt
Securities.
"Senior Debt" with respect to the Senior Subordinated Debt Securities will
be defined to mean the principal of, premium, if any, interest on, and any other
payment due pursuant to any of the following, whether outstanding at the date of
execution of the Senior Subordinated Indenture or thereafter incurred, created
or assumed:
(a) all indebtedness of the Company for money borrowed (including any
indebtedness secured by a mortgage or other lien which is (i) given to
secure all or part of the purchase price of property subject thereto,
whether given to the vendor of such property or to another or (ii) existing
on property at the time of acquisition thereof) and indebtedness of the
Company evidenced by notes, debentures, bonds or other securities sold by
the Company for money;
(b) all lease obligations of the Company which are capitalized on the
books of the Company in accordance with generally accepted accounting
principles;
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(c) all indebtedness of others of the kinds described in the preceding
clause (a) and all lease obligations of others of the kind described in the
preceding clause (b) assumed by or guaranteed in any manner by the Company
or in effect guaranteed by the Company through an agreement to purchase,
contingent or otherwise;
(d) all obligations of the Company with respect to letters of credit
issued in connection with indebtedness of others of the kind described in
the preceding clause (a) or leased obligations of the kind described in the
preceding clause (b); and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in either of the preceding clauses (a) and (c), all
renewals or extensions of lease obligations of the kinds described in
either of the preceding clauses (b) and (c) and all renewals or extensions
of obligations with respect to letters of credit of the kind described in
the preceding clause (d);
unless, in the case of any particular indebtedness, lease obligation, renewal,
extension, refunding or obligations with respect to letters of credit, the
instrument or lease creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, lease,
obligation, renewal, extension or refunding is not superior in right of payment
to or is pari passu with the Senior Subordinated Debt Securities or is
subordinate in right of payment to the Senior Subordinated Debt Securities.
Senior Debt with respect to the Senior Subordinated Debt Securities shall not
include any obligations on account of the Company's 7 1/2% Convertible
Subordinated Debentures Due 2014 or the Company's Subordinated Debt Securities
as to which the Senior Subordinated Securities are Senior Debt.
At June 30, 1997, Senior Debt with respect to the Senior Subordinated Debt
Securities totalled $968 million (not including accrued interest). The Senior
Subordinated Indenture does not limit the amount of Senior Debt which the
Company may incur.
Anti-Layering. The Senior Subordinated Indenture will provide that the
Company shall not incur any indebtedness which is subordinate or junior in right
of payment to any Senior Debt unless such indebtedness constitutes indebtedness
which is junior to, or pari passu in right of payment with, the Senior
Subordinated Debt Securities.
SUBORDINATED INDENTURE PROVISIONS
General
The Subordinated Debt Securities will be unsecured, subordinated
obligations of the Company. The Subordinated Indenture will not limit the amount
of other indebtedness or securities which may be issued by the Company or any of
its subsidiaries.
Conversion Rights
The Prospectus Supplement relating to the Offered Debt Securities will
provide whether any Subordinated Debt Securities will be convertible into shares
of Common Stock at any time on or prior to the maturity date of such
Subordinated Debt Securities and if so the initial conversion price at which
such Subordinated Debt Securities will be so convertible, except that if a
Subordinated Debt Security or portion thereof is earlier called for redemption,
the conversion right with respect thereto will terminate at the close of
business on the date fixed for redemption and will be lost if not exercised
prior to that time. Fractional shares of Common Stock will not be delivered upon
conversion, but a cash adjustment will be paid in respect of such fractional
interests based on the then current market price (as defined in the Subordinated
Indenture) of Common Stock on the last business day prior to the date of
conversion.
The conversion price will be subject to adjustment upon certain events,
including (i) the issuance of Common Stock as a dividend or distribution on the
Common Stock; (ii) subdivisions or combinations of Common Stock; (iii) the
issuance to all holders of Common Stock of rights or warrants (expiring within
60 days after the record date for determining shareholders entitled to receive
them) entitling them to subscribe for or purchase Common Stock at less than the
then current market price (as defined in the
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Subordinated Indenture); and (iv) the distribution to all holders of Common
Stock or capital stock (other than Common Stock), evidences of indebtedness of
the Company, assets (excluding regular periodic cash dividends at a rate which
is substantially consistent with past practice, including past practice with
respect to increases in dividends), or rights or warrants to subscribe for or
purchase securities of the Company (excluding the dividends, distributions,
rights and warrants mentioned above).
Subordinated Debt Securities surrendered for conversion between a record
date for payment of interest and the next succeeding interest payment date
(unless such Subordinated Debt Securities are subject to redemption on a
redemption date in that period) must be accompanied by payment of an amount
equal to the interest thereon which is to be paid on such interest payment date.
Subject to the foregoing, no payments or adjustments will be made upon
conversion on account of accrued interest on the Subordinated Debt Securities or
for any dividends or distributions on any shares of Common Stock delivered upon
conversion. No adjustment of the conversion price will be required to be made in
any case until cumulative adjustments amount to one percent of such price. The
Company reserves the right to make such reductions in the conversion price, in
addition to those required in the foregoing provisions, as the Company in its
discretion shall determine to be advisable in order that certain stock-related
distributions hereafter made by the Company to its stockholders shall not be
taxable.
Except as stated above, the conversion price will not be adjusted for the
issuance of Common Stock, or any securities convertible into or exchangeable for
Common Stock or carrying the right to purchase any of the foregoing, in exchange
for cash, property or services.
If at any time the Company makes a distribution of property to its
stockholders which would be taxable to such stockholders as a dividend for
federal income tax purposes (e.g. distributions of evidences of indebtedness or
assets of the Company but generally not stock dividends or rights to subscribe
to capital stock) and, pursuant to the antidilution provisions of the
Subordinated Indenture, the conversion price of the Subordinated Debt Securities
is reduced, such reduction may be deemed to be the receipt of taxable income by
holders of the Subordinated Debt Securities.
Subordination of Subordinated Debt Securities
The Subordinated Debt Securities will rank pari passu with the Company's
outstanding 7 1/2% Convertible Subordinated Debentures Due 2014, but will be
subordinated and subject, to the extent and in the manner set forth in the
Subordinated Indenture, in right of payment to the prior payment in full of all
Senior Debt (as defined below) of the Company. No payment of principal
(including redemption and sinking fund payments) of, premium, if any, or
interest on, the Subordinated Debt Securities may be made if any Senior Debt is
not paid when due, any applicable grace period with respect to such default has
ended and such default has not been cured or waived, or if the maturity of any
Senior Debt has been accelerated because of a default. During the continuance of
any other event of default with respect to Senior Debt for which maturity may be
accelerated immediately and if the Subordinated Trustee has received written
notice on behalf of holders of such Senior Debt, the Company may not for 90 days
from receipt of such notice do anything which would be prohibited (as set out in
the immediately preceding sentence) if any Senior Debt has not been paid;
however, if the maturity of any such Senior Debt is not accelerated within 90
days following the due date of any payments prevented by such default and
notice, the Company may resume payments on the Subordinated Debt Securities. If
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, prompt notice must be given to holders of Senior Debt, and the
Company may not pay the Subordinated Debt Securities until 30 days after the
acceleration occurs (if any Senior Debt remains outstanding) and thereafter may
pay the Subordinated Debt Securities only if the Subordinated Indenture
otherwise permits. Upon any distribution of assets of the Company to creditors
upon any dissolution, winding-up, liquidation or reorganization, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Debt must be paid in full before the holders of the
Subordinated Debt Securities are entitled to receive or retain any payment. The
rights of the holders of the Subordinated Debt Securities will be subrogated to
the rights of the holders of Senior Debt to receive payments or distributions
applicable to Senior Debt until all amounts owing on the Subordinated Debt
Securities are paid in full. By reason of such subordination, in the
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event of insolvency, creditors of the Company who are holders of Senior Debt may
recover more, ratably, than the holders of the Subordinated Debt Securities, and
creditors of the Company who are not holders of Senior Debt or the Senior
Subordinated Debt Securities or the Subordinated Debt Securities may recover
less, ratably, than holders of Senior Debt and may recover more, ratably, than
the holders of the Subordinated Debt Securities.
"Senior Debt" with respect to the Subordinated Debt Securities will be
defined to mean the principal of, premium, if any, interest on, and any other
payment due pursuant to any of the following, whether outstanding at the date of
execution of the Subordinated Indenture or thereafter incurred, created or
assumed:
(a) all indebtedness of the Company for money borrowed (including any
indebtedness secured by a mortgage or other lien which is (i) given to
secure all or part of the purchase price of property subject thereto,
whether given to the vendor of such property or to another or (ii) existing
on property at the time of acquisition thereof) and indebtedness of the
Company evidenced by notes, debentures, bonds or other securities sold by
the Company for money;
(b) all lease obligations of the Company which are capitalized on the
books of the Company in accordance with generally accepted accounting
principles;
(c) all indebtedness of others of the kinds described in the preceding
clause (a) and all lease obligations of others of the kind described in the
preceding clause (b) assumed by or guaranteed in any manner by the Company
or in effect guaranteed by the Company through an agreement to purchase,
contingent or otherwise;
(d) all obligations of the Company with respect to letters of credit
issued in connection with indebtedness of others of the kind described in
the preceding clause (a) or leased obligations of the kind described in the
preceding clause (b); and
(e) all renewals, extensions or refundings of indebtedness of the
kinds described in either of the preceding clauses (a) and (c), all
renewals or extensions of lease obligations of the kinds described in
either of the preceding clauses (b) and (c) and all renewals or extensions
of obligations with respect to letters of credit of the kind described in
the preceding clause (d);
unless, in the case of any particular indebtedness, lease obligation, renewal,
extension, refunding or obligations with respect to letters of credit, the
instrument or lease creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, lease,
obligation, renewal, extension or refunding is not superior in right of payment
to or is pari passu with the Subordinated Debt Securities. Senior Debt with
respect to the Subordinated Debt Securities shall not include any obligations on
account of the Company's outstanding 7 1/2% Convertible Subordinated Debentures
Due 2014, which shall rank pari passu with the Subordinated Debt Securities.
At June 30, 1997, Senior Debt with respect to the Subordinated Debt
Securities totalled $968 million (not including accrued interest). The
Subordinated Indenture does not limit the amount of Senior Debt which the
Company may incur.
DESCRIPTION OF CAPITAL STOCK
The Company has 272,740,606 authorized shares of stock, consisting of (i)
250,000,000 shares of Common Stock having a par value of $1.00 per share, (ii)
7,740,606 shares of Cumulative Preference Stock (Preference Stock) having a par
value of $1.00 per share, and (iii) 15,000,000 shares of Preferred Stock having
a par value of $1.00 per share. At June 30, 1997, there were 105,415,076 shares
of Common Stock outstanding. There are two series of Preference Stock
designated, none of which were outstanding at June 30, 1997. Of the Series A
Preference Stock, 120,000 shares were designated and reserved for issuance upon
exercise of the Stock Purchase Rights (Rights). The Preferred Stock was
authorized by vote of the shareholders on May 5, 1992 and there are currently no
shares of Preferred Stock designated or outstanding. In addition, on June 30,
1997 the Company had reserved for issuance 5,111,438 shares of Common Stock on
14
<PAGE> 16
conversion of the outstanding 7 1/2% Convertible Subordinated Debentures Due
2014 and 2,709,978 shares of Common Stock upon the exercise of outstanding
management options.
The following summary description of the Company's capital stock is subject
to the detailed provisions of the Company's Restated Certificate of
Incorporation (Certificate), a copy of which has been filed as an exhibit to the
Registration Statement.
COMMON STOCK
Voting. Each share of Common Stock entitles its record owner to one vote on
all matters submitted to the stockholders for action. The stockholders are not
entitled to cumulative voting rights in the election of directors.
Dividends. Subject to the rights of holders of any class of Preference
Stock or Preferred Stock, the holders of Common Stock are entitled to share
ratably in dividends in such amount as may be declared by the Company's Board of
Directors (Board) from time to time out of funds legally available therefor. The
payment of dividends on the Common Stock is restricted under the Company's
Revolving Credit and Term Loan Agreement to no more than $1.20 per share
annually, and is prohibited in the event of a default under such agreement.
Business Combinations with Interested Stockholders. The Company is covered
by Section 203 of the Delaware General Corporation Law which provides that a
corporation shall not engage in any business combination with an "interested
stockholder" for a period of three years following the date that such
stockholder became an interested stockholder unless (1) prior to such date the
board of directors of the corporation approved either the business combination
or the transaction which resulted in the stockholder becoming an interested
stockholder, (2) upon consummation of such transaction, the interested
stockholder owned at least 85 percent of the voting stock of the corporation
outstanding at the time, excluding certain shares owned by directors, officers
and employees of the corporation, or (3) on or subsequent to such date the
business combination is approved by the board of directors and authorized at a
meeting of stockholders by the affirmative vote of the holders of at least
two-thirds of the outstanding voting stock other than the interested
stockholder. "Interested stockholder" is defined as any person that is the owner
(by itself or with affiliates) of 15 percent or more of the outstanding voting
stock of the corporation.
Fair Price Provision. Under the Certificate, a business combination
involving the Company and a related person (defined as a holder of more than ten
percent of the voting stock of the Company) must provide that the price paid all
stockholders in such a transaction will be at least equal in value to the
highest price per share previously paid by the related person in acquiring any
of its shares of voting stock unless such transactions has been approved by: (1)
holders of at least 75 percent of the outstanding shares of voting stock held by
shareholders other than related persons; or (2) two-thirds of the Continuing
Directors (defined as the directors of the Company serving immediately prior to
the time the related person acquired its ten percent interest). As a practical
matter, if a business combination is not approved by the Continuing Directors, a
vote of 75 percent of the outstanding shares of voting stock held by
shareholders other than the related persons may not be obtainable. The
provisions described in this paragraph may only be changed, amended, altered or
repealed by the affirmative vote of at least 75 percent of the votes entitled to
be cast by the stockholders.
Prevention of Greenmail. The Certificate prohibits the Company from
purchasing or agreeing to purchase any of its equity securities, at a price in
excess of fair market value, from any holder of five percent or more of any
class of voting stock (excluding any person who held such amounts on November 1,
1988 and who was also a holder of five percent of the outstanding shares of Sun
Company, Inc. common stock on July 6, 1988) who has beneficially owned such
securities for less than two years. However, such a transaction may be
consummated if approved by holders of at least a majority of the Company's
voting stock, excluding such five percent holder. This stockholder approval
requirement, however, would not apply to any acquisition by the Company of its
equity securities (i) as part of a tender or exchange offer available on the
same terms to all other holders of securities of the same class as such
securities, (ii) as part of an open market purchase program, and not the result
of a privately negotiated transaction, or (iii) as the result of the redemption
of securities which have terms providing for such redemption. The provisions
described in this paragraph may
15
<PAGE> 17
only be changed, amended, altered or repealed by the affirmative vote of at
least 75 percent of the votes entitled to be cast by the stockholders (excluding
any shares held by any holder of five percent or more of the Common Stock).
Board of Directors. The Certificate provides that (i) the Board is
classified into three classes, (ii) the number of directors comprising the Board
is to be fixed from time to time by the Board at not less than five nor more
than 11, which number is presently fixed at nine, and (iii) the term of office
of each class expires in consecutive years so that only one class is elected in
each year. The provisions described in this paragraph may only be changed,
amended, altered or repealed by the affirmative vote of at least 75 percent of
the votes entitled to be cast by the stockholders. Because the Board is
classified, under Section 141 of the Delaware General Corporation Law
stockholders may remove directors only for cause.
Liquidation Rights. The holders of Common Stock are entitled to receive pro
rata the assets of the Company legally available for distribution to such
stockholders upon liquidation or dissolution.
Other. The shares of Common Stock presently outstanding are, and any shares
of Common Stock to be offered under a Supplemental Prospectus to this Prospectus
will be validly issued, fully paid and nonassessable. The Common Stock is not
redeemable and has no preemptive, exchange or conversion rights.
Transfer Agent and Registrar. The Transfer Agent and Registrar of the
Common Stock is Chase Mellon Shareholder Services, LLC, New York, New York.
PREFERRED STOCK
The Board is authorized by the Certificate to issue Preferred Stock in one
or more series and to fix for each such series such qualifications, privileges,
limitations, options, conversion rights, and other special rights as are stated
and adopted by the Board and as are permitted by the Certificate and the
Delaware General Corporation Law, including the designation and number of shares
issuable, the dividend rate, voting rights, conversion rights, redemption and
sinking fund provisions, and liquidation values of each such series. The
particular terms of any series of Offered Preferred Stock will be set forth in
the Prospectus Supplement relating to such Offered Preferred Stock.
Subject to the rights of holders of any class of Preference Stock, the
holders of Preferred Stock are entitled to receive dividends, when and as
declared by the Board out of funds legally available for that purpose. As to
dividends and rights upon liquidation, dissolution or winding up, the Preferred
Stock will rank junior and subordinate to any series of Preference Stock and
prior to the Common Stock.
PREFERENCE STOCK
The Board is authorized by the Certificate to issue Preference Stock in one
or more series and to fix for each such series such qualifications, privileges,
limitations, options, conversion rights, and other special rights as are stated
and adopted by the Board and as are permitted by the Certificate and the
Delaware General Corporation Law, including the designation and number of shares
issuable, the dividend rate, voting rights, conversion rights, redemption and
sinking fund provisions, and liquidation values of each such series.
Holders of Preference Stock are entitled to receive, when and as declared
by the Board out of assets legally available for that purpose, annual cumulative
dividends payable in quarterly installments. Unless full cumulative dividends on
the Preference Stock have been paid, no dividend may be declared or paid on, or
other distributions made upon, Preferred Stock or Common Stock, nor may any
Preferred Stock or Common Stock be redeemed or purchased by the Company.
Subject to certain conditions, the Company may redeem all or any part of
the Preference Stock then outstanding.
If the equivalent of six quarterly dividends on the Preference Stock are
unpaid, the number of directors of the Company will be increased by two, and the
holders of the Preference Stock, voting as a class, will be entitled to select
the additional two directors until all dividends in arrears have been paid or
declared and set aside for payment. At such time, the additional two directors
will cease to serve as directors and the number of directors will decrease by
two.
16
<PAGE> 18
The affirmative vote or consent of holders of at least two-thirds of
outstanding shares of Preference Stock is necessary for the Company to alter or
change certain preferences or rights or to create any class of stock ranking
prior to or on a parity with the Preference Stock.
RIGHTS
On September 11, 1990, the Board declared a dividend distribution of one
Stock Purchase Right on each outstanding share of Common Stock, payable
September 28, 1990 to holders of record of the Common Stock on that date. The
Rights are also issuable upon the issuance of additional shares of Common Stock
prior to the time the Rights are redeemed or expire. Accordingly, the Rights
will also be issued to holders of Common Stock purchased in an offering of
Common Stock under a Prospectus Supplement. Initially, the Rights are
represented by the certificates for the Common Stock and will trade only with
the Common Stock. The Rights will expire September 11, 2000 unless earlier
redeemed by the Company. Unless the Rights are earlier redeemed, if the Company
is (i) acquired in a merger or other business combination transaction or (ii) 50
percent or more of the Company's assets or earning power is sold or transferred
or if a person or group (with certain exceptions relating to affiliates of the
Company) acquires beneficial ownership of 20 percent or more of the outstanding
Common Stock (collectively, Acquisition Events), each Right will entitle its
holder (other than such a person or group) to purchase, at the then current
exercise price, a number of shares of the acquiring Company's common stock, or
of the Common Stock of the Company, as the case may be, that would have a market
value of twice the exercise price. In addition, unless the Rights are earlier
redeemed, if a person or group is determined by the Board to have intentions
toward the Company that are not in the long-term best interests of the Company
or the Company's stockholders and that person or group has or acquires
beneficial ownership of a percentage of common stock of the Company in excess of
the ownership limitation applicable to such person or group (which cannot be
less than 10 percent) as set by the Board (Triggering Event), each Right will
entitle its holder (other than such person or group) to purchase, at the then
current exercise price, a number of shares of the Common Stock of the Company
that would have a market value equal to twice the exercise price multiplied by a
fraction, the numerator of which is 20 percent and the denominator of which is
the applicable ownership limitation. Alternatively, upon the occurrence of the
foregoing, the Company can, at its discretion, exchange the Rights for one-half
the number of shares for which the Rights would otherwise have been exercisable.
With the approval of the Board (but in certain circumstances only with the
consent of certain directors who were in office on September 10, 1990, or whose
nomination or election as a director was approved by such directors) the Company
can redeem the Rights at any time, at a redemption price of $.01 per share,
subject to adjustment, before the occurrence of an Acquisition Event or a
Triggering Event.
The Rights may have certain anti-takeover effects. However, the Board
believes that the Rights will assist in countering takeover tactics the Board
deems unfair and enhance its ability to negotiate with any potential acquiror of
the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in four ways: (i)
through agents, (ii) through underwriters, (iii) through dealers and (iv)
directly to certain purchasers.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the offer
or sale of the Securities in respect of which this Prospectus is delivered, will
be named, and any commissions payable by the Company to such agent set forth, in
the Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment. Agents may be entitled under agreements which may be entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act.
17
<PAGE> 19
If any underwriters are utilized in the sale, the Company will enter into
an underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Prospectus Supplement, which will be used by the underwriters to make
resales of the Securities in respect of which this Prospectus is delivered to
the public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and to reimbursement by the
Company for certain expenses.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale. Dealers
may be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and to reimbursement by the
Company for certain expenses.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Offered Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement and the Prospectus Supplement will set forth the commission payable
for solicitation of such offers.
Certain of the underwriters, agents or dealers and their associates may be
customers or engage in transactions with and perform services for the Company in
the ordinary course of business.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the Company
by Akin, Gump, Strauss, Hauer & Feld, L.L.P., New York, New York, and for any
underwriters, dealers or agents by Milbank, Tweed, Hadley & McCloy, New York,
New York.
INDEPENDENT ACCOUNTANTS
The consolidated balance sheets as of December 31, 1996 and 1995, and the
consolidated statements of income, cash flows and changes in shareholders'
equity for each of the three years in the period ended December 31, 1996,
incorporated by reference in this Prospectus, have been included herein in
reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of that firm as experts in auditing and accounting.
With respect to the unaudited interim financial information for the periods
ended June 30 and March 31, 1997 and 1996, incorporated by reference in this
Prospectus, the independent accountants have reported that they have applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate reports included in the Company's
Quarterly Reports on Form 10-Q for the six-month and three-month periods ended
June 30 and March 31, 1997, respectively and incorporated by reference herein,
state that they did not audit and they do not express an opinion on the interim
financial information. Accordingly, the degree of reliance on their reports on
such information should be restricted in light of the limited nature of the
review procedures applied. The accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their reports on the
unaudited interim financial information because such reports are not "reports"
or "parts" of the Registration Statement prepared or certified by the
accountants within the meaning of Section 7 and 11 of the Securities Act.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Except for the Securities and Exchange Commission registration fees, all
expenses in connection with the offering, which will be paid by the Registrant,
are estimated as follows:
<TABLE>
<S> <C>
SEC Registration Fee...................................................... $148,757
Printing and Engraving Expenses........................................... 15,000
Legal Fees and Expenses................................................... 50,000
Accountant's Fees and Expenses............................................ 15,000
Blue Sky Fees and Expenses................................................ 20,000
Trustee's Fees............................................................ 15,000
Rating Agency Fees........................................................ 50,000
Miscellaneous............................................................. 27,586
--------
Total........................................................... $365,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. Under Section 145 of the General
Corporation Law of the State of Delaware, the Registrant has the power to
indemnify its officers and directors, subject to certain limitations.
Reference is made to Article Eight of the Registrant's Certificate of
Incorporation previously filed as Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1 (File No. 33-28494) filed with the Commission on May 3,
1989 and to Article VII, Section 1 of the Registrant's Bylaws previously filed
as Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (File No.
33-33361) filed with the Commission on February 6, 1990.
The Registrant is covered by insurance the general effect of which is to
provide (a) coverage for the Registrant with respect to amounts that it is
required or permitted to pay to officers or directors under the indemnification
provisions described above in this Item 15 and (b) coverage for the officers and
directors of the Registrant for liabilities (including certain liabilities under
the federal securities laws) incurred by such persons in their capacities as
officers or directors for which they are not indemnified by the Registrant.
Pursuant to the General Corporation Law of the State of Delaware, the
Registrant's Certificate of Incorporation limits the personal liability of the
directors of the Registrant for monetary damages (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law or (iv) for any transactions from which the director derived an improper
personal benefit.
The foregoing summaries are necessarily subject to the complete text of the
statute, Certificate of Incorporation, Bylaws, insurance contracts and
agreements referred to above and are qualified in their entirety by reference
thereto.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- -------------------- ------------------------------------------------------------------------
<C> <S>
*1.1 -- Form of Underwriting Agreement (Debt Securities)
*1.2 -- Form of Underwriting Agreement (Equity Securities)
**3 -- Restated Certificate of Incorporation of the Registrant
</TABLE>
II-1
<PAGE> 21
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- -------------------- ------------------------------------------------------------------------
<C> <S>
***4.1 -- Indenture relating to Senior Debt Securities dated as of September
15, 1988 by and between The Bank of New York and the Registrant
****4.2 -- First Supplemental Indenture dated as of April 1, 1991 by and between
The Bank of New York and the Registrant
4.3 -- Form of Senior Debt Security (included in Indenture -- Exhibit 4.1)
*4.4 -- Form of Indenture relating to Senior Subordinated Debt Securities by
and between IBJ Schroder Bank & Trust Company and the Registrant
*4.5 -- Form of Senior Subordinated Debt Security (included in
Indenture -- Exhibit 4.4)
+++4.6 -- Form of Indenture relating to Subordinated Debt Securities by and
between the Bank of Montreal Trust Company and the Registrant
+++4.7 -- Form of Subordinated Debt Security (included in Indenture -- Exhibit
4.6)
+4.8 -- Rights Agreement dated as of September 11, 1990 between the
Registrant and Manufacturers Hanover Trust Company
++4.9 -- Specimen of Common Stock Certificate
*5 -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*12 -- Computation of Consolidated Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividend Requirements
for the Six Months Ended June 30, 1997 and each of the Five Years in
the Period Ended December 31, 1996
*15 -- Coopers & Lybrand L.L.P. Awareness Letter
*23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
their opinion filed as Exhibit 5)
*24 -- Powers of Attorney
*25.1 -- Statement as to Eligibility of the Senior Trustee under the Senior
Indenture (Bound Separately)
*25.2 -- Statement as to Eligibility of the Senior Subordinated Trustee under
the Senior Subordinated Indenture (Bound Separately)
*25.3 -- Statement as to Eligibility of the Subordinated Trustee under the
Subordinated Indenture (Bound Separately)
</TABLE>
- ---------------
* Filed herewith.
** Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1992.
*** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 33-24214) filed with the Commission on September 8,
1988.
**** Incorporated by reference to the Registrant's Amendment No. 2 on Form S-3
(File No. 33-33361) filed with the Commission on June 29, 1990.
+ Incorporated by reference to the Registrant's Form 8-A, filed on September
19, 1990.
++ Incorporated by reference to the Registrant's Registration Statement on
Form S-3 (File No. 33-36799) filed with the Commission on September 19,
1990.
+++ Incorporated by reference to the Registrant's Post-effective Amendment No.
1 on Form S-3 (File No. 33-45611) filed with the Commission on February 22,
1993.
II-2
<PAGE> 22
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, unless the information required to be included
in such post-effective amendment is contained in periodic reports filed
by Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 and incorporated herein by reference;
(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, unless the information required to be
included in such post-effective amendment is contained in periodic
reports filed by Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 and incorporated herein by
reference. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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;
(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; and
(4) For purposes of determining any liability under the Securities Act
of 1933, each filing of Registrant's annual report pursuant to Section
13(a) or Section 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 and 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; and
(5) For the purposes of determining any liability under the Securities
Act of 1933:
(i) The information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in the form of prospectus filed by the Registration pursuant
to Rule 424(b)(1) or (4) or 487(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
(ii) Each post-effective amendment that contains a form of
prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15
II-3
<PAGE> 23
above, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore unenforceable. In the event
a claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant by such director, officer
or controlling person in connection with the Securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-4
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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, on
the 8th day of August, 1997.
ORYX ENERGY COMPANY
By: /s/ EDWARD W. MONEYPENNY
----------------------------------
Edward W. Moneypenny
Executive Vice President, Finance
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ ------------------
<S> <C> <C>
ROBERT L. KEISER* Chairman of the Board, Chief
- ------------------------------------------ Executive Officer, President
Robert L. Keiser and Director (principal
executive officer)
JERRY W. BOX* Executive Vice President and
- ------------------------------------------ Chief Operating Officer
Jerry W. Box and Director
/s/ EDWARD W. MONEYPENNY Executive Vice President,
- ------------------------------------------ Finance, and Chief Financial
Edward W. Moneypenny Officer and Director
(principal financial officer)
ROBERT L. THOMPSON* Comptroller (principal
- ------------------------------------------ accounting officer)
Robert L. Thompson
WILLIAM E. BRADFORD* Director
- ------------------------------------------
William E. Bradford
SYLVIA A. EARLE* Director August 8, 1997
- ------------------------------------------
Sylvia A. Earle
DAVID C. GENEVER-WATLING* Director
- ------------------------------------------
David C. Genever-Watling
ROBERT B. GILL* Director
- ------------------------------------------
Robert B. Gill
DAVID S. HOLLINGSWORTH* Director
- ------------------------------------------
David S. Hollingsworth
CHARLES H. PISTOR, JR.* Director
- ------------------------------------------
Charles H. Pistor, Jr.
PAUL R. SEEGERS* Director
- ------------------------------------------
Paul R. Seegers
IAN L. WHITE-THOMSON* Director
- ------------------------------------------
Ian L. White-Thomson
</TABLE>
*By: EDWARD W. MONEYPENNY
-------------------------------
Edward W. Moneypenny
Attorney-in-Fact
II-5
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ---------- -----------------------------------------------------------------------------------
<C> <S> <C>
*1.1 -- Form of Underwriting Agreement (Debt Securities)
*1.2 -- Form of Underwriting Agreement (Equity Securities)
**3 -- Restated Certificate of Incorporation of the Registrant
***4.1 -- Indenture relating to Senior Debt Securities dated as of September
15, 1988 by and between The Bank of New York and the Registrant
****4.2 -- First Supplemental Indenture dated as of April 1, 1991 by and between
The Bank of New York and the Registrant
4.3 -- Form of Senior Debt Security (included in Indenture -- Exhibit 4.1)
*4.4 -- Form of Indenture relating to Senior Subordinated Debt Securities by
and between IBJ Schroder Bank & Trust Company and the Registrant
*4.5 -- Form of Senior Subordinated Debt Security (included in
Indenture -- Exhibit 4.4)
+++4.6 -- Form of Indenture relating to Subordinated Debt Securities by and
between the Bank of Montreal Trust Company and the Registrant
+++4.7 -- Form of Subordinated Debt Security (included in Indenture -- Exhibit
4.6)
+4.8 -- Rights Agreement dated as of September 11, 1990 between the
Registrant and Manufacturers Hanover Trust Company
++4.9 -- Specimen of Common Stock Certificate
*5 -- Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*12 -- Computation of Consolidated Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividend Requirements
for the Six Months Ended June 30, 1997 and each of the Five Years in
the Period Ended December 31, 1996
*15 -- Coopers & Lybrand L.L.P. Awareness Letter
*23.1 -- Consent of Coopers & Lybrand L.L.P.
23.2 -- Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
their opinion filed as Exhibit 5)
*24 -- Powers of Attorney
*25.1 -- Statement as to Eligibility of the Senior Trustee under the Senior
Indenture (Bound Separately)
*25.2 -- Statement as to Eligibility of the Senior Subordinated Trustee under
the Senior Subordinated Indenture (Bound Separately)
*25.3 -- Statement as to Eligibility of the Subordinated Trustee under the
Subordinated Indenture (Bound Separately)
</TABLE>
- ---------------
* Filed herewith.
** Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1992.
*** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 33-24214) filed with the Commission on September 8,
1988.
**** Incorporated by reference to the Registrant's Amendment No. 2 on Form S-3
(File No. 33-33361) filed with the Commission on June 29, 1990.
+ Incorporated by reference to the Registrant's Form 8-A, filed on September
19, 1990.
++ Incorporated by reference to the Registrant's Registration Statement on
Form S-3 (File No. 33-36799) filed with the Commission on September 19,
1990.
+++ Incorporated by reference to the Registrant's Post-effective Amendment No.
1 on Form S-3 (File No. 33-45611) filed with the Commission on February 22,
1993.
<PAGE> 1
EXHIBIT 1.1
[Date]
ORYX ENERGY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
From time to time, Oryx Energy Company, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several Underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is
herein referred to as this Agreement. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
The Company proposes to issue from time to time senior debt securities
to be issued pursuant to the provisions of an indenture dated as of September
15, 1988, as amended and supplemented by a first supplemental indenture dated
as of April 1, 1991 (as it may be further supplemented or amended from time to
time, any such amendment or supplement to be identified in the Underwriting
Agreement, the "Senior Indenture") between the Company and The Bank of New
York, as Senior Trustee; senior subordinated debt securities issued pursuant to
the provisions of an indenture between the Company and IBJ Schroder Bank &
Trust Company, as Senior Subordinated Trustee (the "Senior Subordinated
Indenture"); and subordinated debt securities issued pursuant to the provisions
of an indenture between the Company and Bank of Montreal Trust Company, as
Subordinated Trustee (the "Subordinated Indenture").
The debt securities will have varying designations, maturities, rates
and times of payment of interest, selling prices, redemption terms and other
terms. Any such debt securities are herein sometimes collectively referred to
as the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission"), in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations thereunder (herein referred to
collectively as the "Act"), a registration statement including a prospectus
relating to the Securities and has filed or proposes to file with the
Commission a prospectus supplement or supplements specifically relating to the
Offered Securities pursuant to Rule 424 under the Act in the form furnished by
the Company to the Manager or Managers named in the Underwriting Agreement (the
"Manager") or, to the extent not completed at the time of execution of the
Underwriting Agreement, in such form as the Company and the Manager shall have
agreed to at such time. The term Registration Statement means the registration
statement as amended to the date of the Underwriting Agreement. The term Basic
Prospectus means the prospectus included in the Registration Statement. The
term Prospectus means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Offered Securities in the form first used to confirm sales of
the Offered Securities. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include, in
<PAGE> 2
each case, the material, if any, incorporated by reference therein.
The Company and the Underwriters agree as follows:
1. Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Offered Securities as soon after this Agreement is entered
into as in the Manager's judgment is advisable. The terms of the public
offering of the Offered Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Offered Securities
shall be made by certified or official bank check or by wire transfer payable
to the order of the Company drawn in funds specified in the Underwriting
Agreement at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Offered Securities registered in such names and in such denominations
as the Manager shall request not less than two full business days prior to
the date of delivery. The time and date of such payment and delivery with
respect to the Offered Securities are herein referred to as the Closing Date.
3. Certain Covenants of the Company. In further
consideration of the agreements of the Underwriters herein contained, the
Company covenants as follows:
(a) To furnish the Manager, without charge, two signed copies
of the Registration Statement (including exhibits thereto and documents
incorporated therein by reference), as many copies of the preliminary
prospectus as the Manager may reasonably request and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and
amendments thereto as the Manager may reasonably request and to pay all
reasonable costs associated therewith, including all printing and
mailing costs. The Company agrees to timely file the Prospectus pursuant
to Rule 424 and to provide the Manager with evidence of such filing. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement and to file no such proposed amendment
or supplement to which the Manager reasonably objects in writing;
provided that the foregoing shall not apply to amendments or supplements
that relate to securities registered under the Registration Statement
that are not Offered Securities.
(c) If, at any time when a Prospectus relating to the Offered
Securities is required by law to be delivered under the Act, any event
shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements
-2-
<PAGE> 3
therein, in light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Securities
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply with
law. The costs and expenses relating to any such amendment or supplement
shall be borne by the Company in the case of an amendment or supplement
within 9 months of the date of the Agreement and by the Underwriters
thereafter.
(d) The Company agrees to use its best efforts to prevent the
issuance of any stop order by the Commission and, if issued, to notify
you of the issuance thereof and to use its best efforts to obtain as
soon as possible the withdrawal thereof.
(e) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to take reasonable steps 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 reasonably necessary to
complete the distribution of the Offered Securities, and to pay all
reasonable expenses (including fees and disbursements of counsel for the
Underwriters) in connection therewith as well as all fees, if any,
payable in connection with the review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(f) To make generally available to the Company's security
holders as soon as practicable an earnings statement or statements of
the Company which shall satisfy the provisions of Section 11(a) of the
Act.
(g) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any securities of the Company
substantially similar to the Offered Securities other than the Offered
Securities without the prior written consent of the Manager. The
foregoing shall not restrict the Company from borrowings under revolving
credit agreements and lines of credit, the private placement of
securities and issuances of commercial paper or interest rate swaps.
4. Reimbursement of Underwriters' Expenses. If this Agreement
shall be terminated by the Underwriters or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company shall
be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement, with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel itemized in
detail reasonably satisfactory to the
-3-
<PAGE> 4
Company) reasonably incurred by such Underwriters in connection with the
Offered Securities.
5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Offered Securities
hereunder are subject to the conditions:
(a) That, at the Closing Date, the Company shall have
furnished to the Manager an opinion of William C. Lemmer, Vice
President, General Counsel and Secretary of the Company, dated the
Closing Date, in substantially the form set forth as Exhibit A.
(b) That, at the Closing Date, the Company shall have
furnished to the Manager an opinion of Akin, Gump, Strauss, Hauer &
Feld, L.L.P., special counsel for the Company, dated the Closing Date,
in substantially the form set forth as Exhibit B.
(c) That, at the Closing Date, the Manager shall have received
an opinion of Milbank, Tweed, Hadley & McCloy, counsel for the
Underwriters, dated the Closing Date, in substantially the form set
forth as Exhibit C.
(d) That, at the Closing Date, the Company shall have
furnished to the Manager a letter addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Manager, from Coopers & Lybrand L.L.P., independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information relating to the
Company contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(e) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and signed
by an executive officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the Company
contained herein are true and correct in all material respects as
of the Closing Date;
(ii) no stop orders suspending the effectiveness of the
Registration Statement are in effect, and no proceedings for such
purpose are pending before or threatened by the Commission;
(iii) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there has not occurred
any downgrading, nor shall any notice have been given of (A) any
intended or potential downgrading or (B) any review or possible
change that does not indicate the direction of a possible
-4-
<PAGE> 5
change, in the rating accorded any of the Company's securities by
either of Standard & Poor's Ratings Group or Moody's Investors
Service, Inc.;
(iv) there has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the financial condition, or in the business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the
Prospectus exclusive of any supplement or amendment thereto,
whether or not incorporated by reference; and
(v) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing and in accordance with Section 3(a) of
this Agreement.
(f) That the Company shall have performed in all material
respects such of its obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase.
6. Termination of Agreement. If the sale to the Underwriters
of the Offered Securities, as contemplated in this Agreement, is not carried
out by the Underwriters for any reason permitted hereunder or if such sale is
not carried out because the Company shall be unable to comply with any of the
terms hereof, the Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 4 and 9 hereof), and
the Underwriters shall be under no obligation or liability to the Company under
the agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
If the Manager or any group of Underwriters elect to terminate
this Agreement as provided in this Section 6, the Company and each other
Underwriter shall be notified promptly by letter or telegram.
7. Defaulting Underwriters. If any Underwriter or
Underwriters shall default in its or their obligation to take up and pay for
the Offered Securities to be purchased by it or them hereunder and,
(i) the aggregate principal amount of Offered
Securities which the defaulting Underwriters agreed but failed to
purchase is 10% or less of the aggregate principal amount of all
of the Offered Securities, the non-defaulting Underwriters
whether one or more, or the Company, may make arrangements
satisfactory to the Company and the non-defaulting Underwriters
for the purchase of such Offered Securities by other persons,
including any of the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered
Securities which the defaulting Underwriters agreed but failed to
purchase; provided that in no event
-5-
<PAGE> 6
shall the principal amount of Offered Securities which any non-
defaulting Underwriter has agreed to purchase hereunder be
increased by an amount in excess of one-ninth of such principal
amount, without the written consent of the non-defaulting
Underwriter; or
(ii) the aggregate principal amount of the offered
Securities which the defaulting Underwriters agreed but failed to
purchase is more than 10% of the aggregate principal amount of
all of the Offered Securities and arrangements satisfactory to
the non-defaulting Underwriters and the Company for the purchase
of such Offered Securities are not made by the non-defaulting
Underwriters or the Company within thirty-six hours after such
default, the Underwriting Agreement will terminate without
liability on the part of the non-defaulting Underwriters or the
Company.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Offered Securities hereunder unless all of the Offered Securities
are purchased by the Underwriters (or by substituted underwriters selected by
the Manager with the approval of the Company or selected by the Company with
the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 7 with like effect as if
such substituted underwriter had originally been named herein.
8. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission;
(b) (i) each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
-6-
<PAGE> 7
statements therein not misleading, (iii) the Registration Statement and
the Prospectus comply, and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 8(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the 1939 Act of the Senior Trustee,
Senior Subordinated Trustee or Subordinated Trustee, as applicable;
(c) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(d) each of Sun Energy Partners, L.P., Sun Operating Limited
Partnership and Oryx U.K. Energy Company has been duly incorporated or
formed, is validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation and has all consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all declarations and filings with, all federal, state,
local and other governmental authorities, and all courts or other
tribunals necessary to conduct its business as described in the
Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(e) this Agreement has been duly authorized, executed and
delivered by the Company;
(f) Coopers & Lybrand are independent accountants with respect
to the Company as required by the Securities Act and the applicable
rules and regulations thereunder;
(g) the Senior Indenture, Senior Subordinated Indenture or
Subordinated Indenture, as applicable, has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered
by the Company;
-7-
<PAGE> 8
(h) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the Senior Indenture,
Senior Subordinated Indenture or Subordinated Indenture, as applicable,
and delivered to and duly paid for by the Underwriters, will be entitled
to the benefits of the Senior Indenture, Senior Subordinated Indenture
or Subordinated Indenture, as applicable and will be valid and binding
obligations of the Company; and
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Senior Indenture, Senior Subordinated Indenture or Subordinated
Indenture, as applicable and the Offered Securities will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole or to the best of the Company's
knowledge any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or its subsidiaries, that
is material to the Company and its subsidiaries, taken as a whole, and
no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement and the Offered
Securities, except such as may be required by the securities or Blue Sky
laws of the various states.
9. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities, in so far as such losses, claims, damages and
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any Basic Prospectus or any
preliminary prospectus, or arise out of or are based upon any omission, or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by any Underwriter expressly
for use therein. The foregoing indemnity agreement with respect to any Basic
Prospectus or any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
-8-
<PAGE> 9
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to information relating to such Underwriter furnished to the Company in
writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
Basic Prospectus or any preliminary prospectus.
(c) In case any proceeding shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (hereinafter called the
indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the indemnifying party) in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for
all such indemnified parties, and that all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate
firm for the Underwriters and such control persons of Underwriters, such
firm shall be designated in writing by the Manager. In the case of any
such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing
by the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall without the prior
written consent of the indemnified party effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 9 is unavailable to an indemnified party in respect
or any losses, claims, damages or
-9-
<PAGE> 10
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Underwriters from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company of the Underwriters in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company and the
Underwriters 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 or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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
which does not take account of the equitable considerations referred to
in paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, 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 Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Offered Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which 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
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting percentages
determined by the ratio which the original purchase obligation of any
Underwriter appearing in the Underwriting Agreement (or such amount
increased as provided in Section 7 above) bears to the total purchase
obligations of the Underwriters set forth therein.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(3) acceptance of and payment for any of the
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<PAGE> 11
Offered Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities; or (iii) there shall have occurred any
outbreak or escalation of hostilities or any calamity or crisis that, in the
judgment of the Manager, is material and adverse and (b) such event singly or
together with any other such event makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
11. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement
between the parties and shall become effective at such time as each of the
parties shall have signed such counterparts and shall have notified the other
party thereof.
12. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is made
solely for the benefit of the Underwriters and the Company, and the controlling
persons, directors and officers referred to in Section 9 hereof, and their
respective successors, assigns, executors and administrators. No other person
shall acquire or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part
of this Agreement.
-11-
<PAGE> 12
EXHIBIT A
FORM OF OPINION OF
WILLIAM C. LEMMER, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY OF THE COMPANY
______________, 19__
[MANAGER]
as Manager for the several Underwriters
[ADDRESS]
Dear Sirs:
I am General Counsel of Oryx Energy Company, a Delaware corporation (the
"Company"), and in such capacity am familiar with the Underwriting Agreement
dated ____________, 199_ (the "Underwriting Agreement") between you and the
Company, pursuant to which the Underwriters severally agree to purchase from
the Company an aggregate of $ _________ principal amount of [title of
securities] of the Company (the "Notes") issued or to be issued pursuant to an
indenture dated as of [insert appropriate indenture] (the "Indenture") between
the Company and [insert appropriate Trustee], as Trustee (the "Trustee").
I, or persons responsible to me, have examined originals or copies,
certified or otherwise identified to my satisfaction, and such documents,
corporate records, certificates of public officials and other instruments as I
have deemed necessary or advisable for the purpose of rendering this opinion.
Defined terms herein unless otherwise specified shall have the meanings
specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement on Form S-3
(File No. 333-____) relating to up to $500,000,000 aggregate principal amount
of Securities filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), exhibits thereto and documents incorporated by reference therein. Such
Registration Statement is now effective, and together with the exhibits thereto
and documents incorporated by reference therein is herein called the
"Registration Statement". The prospectus constituting a part thereof, in the
form filed with the Commission pursuant to Rule 424 of the rules and
regulations under the Act, together with the prospectus supplement (other than
a preliminary prospectus supplement) specifically relating to the Notes, as
filed with, or mailed for filing to, the Commission pursuant to Rule 424, is
herein called the "Prospectus".
A-1
<PAGE> 13
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect upon
the Company and its subsidiaries, taken as a whole.
(2) Each of the Company, Sun Energy Partners, L.P., Sun Operating
Limited Partnership and Oryx U.K. Energy Inc. (such corporations or
partnerships other than the Company being collectively referred to herein as
the "Subsidiaries") has been duly incorporated or formed and is validly
existing in the jurisdiction of its incorporation or formation, and has all
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, and all courts or other tribunals,
necessary to conduct its business as described in the Prospectus, except to the
extent that the lack of such consents, authorizations, approvals, orders,
certificates or permits could not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(3) The Indenture has been duly authorized, executed and delivered by
the Company.
(4) The Notes have been duly authorized by all necessary corporate
action on the part of the Company.
(5) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(6) The execution, delivery and performance of the Underwriting
Agreement and the Indenture relating to the Notes will not contravene any
provision of applicable law or the Certificate of Incorporation or By-laws or
the agreement of limited partnership of the Company or any Subsidiary or any
material agreement or other material instrument binding upon the Company or any
Subsidiary, or any order or regulation known to me to be applicable to the
Company or any Subsidiary of any court, regulatory body, administrative agency
or governmental body having jurisdiction in the premises, and no consent,
approval or authorization of any governmental body or agency (other than
pursuant to any state securities or Blue Sky law) is required for the
performance of the Underwriting Agreement and the issuance and sale of the
Notes pursuant to the Underwriting Agreement;
(7) The statements (1) in the Registration Statement under Item 15
and (2) in the Company's most recent Annual Report on Form 10-K under
["Business and Properties - Other" and "Legal Proceedings"], and the statements
in the Prospectus with regard to the ownership of the Subsidiaries, in each
case insofar as such statements constitute summaries of
A-2
<PAGE> 14
the legal matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(8) After due inquiry, I do not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries (including the Subsidiaries) is a party or to which any of the
properties of the Company or any of its subsidiaries (including the
Subsidiaries) is subject which is required to be described or of any contract
or other document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required; and
(9) I (a) am of the opinion that (except as to financial statements
included therein, as to which I am not called upon to express any opinion) each
document, if any, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in the Registration
Statement and the Prospectus complied when so filed as to form in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement, and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements and other financial data included therein, as to which I am not
called upon to express any opinion), comply as to form in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended (the
"1939 Act") and the applicable rules and regulations thereunder, (c), believe
that (except as to financial statements and other financial data included
therein, as to which I am not called upon to express any belief, and except for
that part of the Registration Statement that constitutes a Statement of
Eligibility and Qualification (Form T-1) under the 1939 Act) each part of the
Registration Statement when such part became effective or was incorporated by
reference into the Registration Statement did not contain, and as of the date
this opinion is delivered, does not contain, any 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, and (d) believe that
(except as to financial statements and other financial data included therein,
as to which I am not called upon to express any belief, and except for that
part of the Registration Statement that constitutes a Form T-1 heretofore
referred to) the Registration Statement and the Prospectus, as amended or
supplemented, if applicable, do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
I am qualified to practice law in the State of New York and I express no
opinion except as to matters governed by the laws of the State of New York, the
General Corporation Law of the State of Delaware and United States federal
laws.
A-3
<PAGE> 15
EXHIBIT B
FORM OF OPINION OF
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
SPECIAL COUNSEL FOR THE COMPANY
___________________, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for Oryx Energy Company (the "Company") in
connection with the issue and sale to the several underwriters (the
"Underwriters"), for whom you are acting as Manager, named in the Underwriting
Agreement dated __________, 199_ (the "Underwriting Agreement") of $___________
principal amount of [name of security] (the "Offered Securities") of the
Company to be issued pursuant to the indenture dated as of [insert applicable
indenture] and as further amended by the Trust Indenture Reform Act of 1990
(the "Indenture") between the Company and [insert applicable Trustee], as
Trustee. Defined terms herein unless otherwise specified shall have the
meanings specified in the Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such other documents, corporate records, certificates
of public officials and other instruments as we have deemed necessary or
advisable for the purpose of rendering this opinion, including those relating
to the authorization, execution and delivery by the Company of the Indenture
and the Underwriting Agreement and the authorization, issuance and sale of the
Offered Securities by the Company.
We have reviewed the Company's registration statement on Form S-3 (File
No. 333-_____) relating to up to $500,000,000 in the aggregate of debt
securities, Preferred Stock and Common Stock of the Company filed with the
Securities and Exchange Commission (the "Commission") pursuant to the
provisions of the Securities Act of 1933, as amended (the "Act"), and the
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents"). In addition, we have reviewed evidence that the
registration statement was declared effective under the Act and that the
Indenture was qualified under the Trust Indenture Act of 1939 (the "1939 Act").
The registration statement (including the Incorporated Documents) as amended to
the date of the Underwriting Agreement is hereinafter referred to as the
"Registration Statement", and the prospectus included in the Registration
Statement, as supplemented by the final prospectus supplement dated _______
specifically relating to the Offered Securities in the form first filed with
the Commission pursuant to Rule 424 under the Act, and used to confirm sales of
the Offered Securities is hereinafter referred to
B-1
<PAGE> 16
as the "Prospectus", and such term and the term "Registration Statement" each
include the Incorporated Documents.
Based upon the foregoing, we are of the opinion that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (A) may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (B) rights of acceleration and availability of
equitable remedies may be limited by equitable principles of general
applicability, and the Indenture has been duly qualified under the 1939
Act;
(ii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the Underwriting Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms, and will be entitled to the benefits of the Indenture,
except as (A) may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) rights of acceleration and
availability of equitable remedies may be limited by equitable
principles of general applicability; and the terms of the Offered
Securities have been established in conformity with the provisions of
the Indenture.
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the statements in the Prospectus under "Description of
[Offered Securities]" and "Underwriting" (in the Prospectus Supplement),
and "Description of the Debt Securities" (in the Basic Prospectus),
insofar as such statements constitute a summary of the documents
referred to therein, fairly present the information called for with
respect to such documents.
We have not ourselves confirmed the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement or Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our confirmation and verification. On the
basis of such review and discussion, but without independent confirmation or
verification, except as stated, (i) we believe that the Registration Statement
and Prospectus (except for the financial statements and other financial and
statistical data included therein or omitted therefrom, as to which we are not
called upon to express any statement, and except for that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification (Form T-1) under the 1939 Act) on the date of the Underwriting
Agreement did not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading
and that the Prospectus (except as aforesaid) does not on the date hereof
B-2
<PAGE> 17
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii) we are of the
opinion that the Registration Statement and Prospectus (except for the
financial statements and other financial and statistical data included therein
or omitted therefrom, as to which we are not called upon to express an opinion)
comply as to form in all material respects with the Act and the 1939 Act and
the rules and regulations of the Commission thereunder.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York (other than
the state securities or "blue sky" laws of such state), the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware.
This opinion is furnished by us, as counsel to the Company, to
you as Manager for the several Underwriters in connection with the issuance and
sale of the Offered Securities, solely for your benefit. This opinion may not
be relied upon by you for any other purpose or relied upon by or furnished to
any other person without our prior written consent. Notwithstanding the
foregoing, however, [insert applicable Trustee], as Trustee, may rely on our
opinion expressed in subparagraphs (i) and (ii) above.
Very truly yours,
B-3
<PAGE> 18
EXHIBIT C
FORM OF OPINION OF
MILBANK, TWEED, HADLEY & MCCLOY
COUNSEL FOR THE UNDERWRITERS
, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for you in connection with the purchase
by the several Underwriters from Oryx Energy Company (the "Company"), pursuant
to the Underwriting agreement dated ___________________ ___, 199__ between you
and the Company (the "Underwriting Agreement") of $______________ aggregate
principal amount of [name of security] (the "Offered Securities"), issued under
and pursuant to the [insert applicable indenture] (as amended, the "Indenture")
under which [insert applicable Trustee] (the "Trustee").
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee and other documents as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. In our examination of documents we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as originals, the
conformity with original documents of all documents submitted to us as copies
and the authenticity of the originals of such later documents. As to various
questions of fact material to such opinions we have, when relevant facts were
not independently established, relied upon certifications by officers of the
Company, and other appropriate persons and statements contained in the
Registration Statement and Prospectus hereinafter mentioned.
In addition, we attended the closing held today at our offices in
New York, New York, during the course of which the Company delivered the
Offered Securities to your representative at the office of The Depository Trust
Company, New York, New York, in accordance with the Underwriting Agreement,
against payment therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under
C-1
<PAGE> 19
the laws of the State of Delaware and has corporate power to transact
the business in which it is now engaged.
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Registration Statement on Form S-3 with respect to the
Offered Securities, as amended (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933, as amended (the "Act"), has become
effective and remains in effect at this date, and the Prospectus dated
_____________ ___, 199__, including all documents incorporated by
reference pursuant to the requirements of Form S-3 under the Act
constituting a part thereof (the "Basic Prospectus"), as supplemented by
the prospectus supplement dated ______________ ___, 199__ relating to
the Offered Securities (the "Prospectus Supplement") (the Basic
Prospectus as supplemented by the Prospectus Supplement being herein
referred to as the "Prospectus"), may lawfully be used for the purposes
specified in the Act in connection with the offer and sale of the
Offered Securities in the manner therein specified.
4. The Registration Statement and the Prospectus (except the
financial statements and other financial and statistical data included
therein as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of
the Act, the Securities Exchange Act of 1934, as amended, and the Trust
Indenture Act of 1939, as amended (the "1939 Act") and to the applicable
rules and regulations of the Commission under said Acts.
As to the financial statements included in the Prospectus, we
have made no examination of the Company's books of account and we
therefore express no opinion. As to the statements under "Description of
the Debt Securities" in the Basic Prospectus, as supplemented by
statements under "Description of [Offered Securities]" in the Prospectus
Supplement, we are of the opinion that the statements are accurate and
do not omit any material fact required to be stated therein or necessary
to make such statements not misleading. As to other matters we have not
undertaken to determine independently the accuracy or completeness of
the statements contained in the Registration Statement or in the
Prospectus. We have, however, participated in extended conferences with
counsel for and representatives of the Company in connection with the
preparation of the Registration Statement, and we have reviewed all
documents incorporated by reference in the Prospectus pursuant to the
requirements of Form S-3 under the Act and such of the corporate records
of the Company as we deemed advisable. None of the foregoing disclosed
to us any information which gave us reason to believe that the
Registration Statement or the Prospectus (except the financial
statements and other financial and statistical data included therein as
to which we express no opinion) contains on the date hereof any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
C-2
<PAGE> 20
5. The Indenture has been duly authorized, executed and
delivered by the Company and conforms to the statements with respect
thereto contained in the Registration Statement and the Prospectus; is a
legal, valid and binding agreement of the Company enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or enforceability of creditors' rights
generally. The enforceability of the Indenture is subject to the effect
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including without limitation (i) the
possible unavailability of specific performance, injunctive relief or
any other equitable remedy and (ii) concepts of materiality,
reasonableness, good faith and fair dealing. The Indenture has been duly
qualified under the 1939 Act.
6. The Offered Securities conform to the terms of the
Underwriting Agreement and to the statements with respect thereto
contained in the Registration Statement and the Prospectus and, assuming
due execution thereof by the Company and due authentication and delivery
by the Trustee, have been duly authorized, executed, authenticated and
delivered and duly issued for value by the Company and (subject to the
qualifications stated in paragraph 5 above) are legal, valid and binding
obligations of the Company and entitled to the benefits afforded by the
Indenture.
We have also examined the opinions dated the date hereof of
William C. Lemmer, Vice President, General Counsel and Secretary of the
Company, and Akin, Gump, Strauss, Hauer & Feld, L.L.P., special counsel for the
Company, delivered in accordance with the provisions of Sections 5(a) and 5(b),
respectively, of the Underwriting Agreement, which opinions are in form
satisfactory to us.
We do not express any opinion as to matters governed by any laws
other than the laws of the State of New York, the Federal laws of the United
States and the General Corporation Law of the State of Delaware.
Very truly yours,
C-3
<PAGE> 21
UNDERWRITING AGREEMENT
[DESCRIPTION OF SECURITIES]
[DATE]
Oryx Energy Company
13155 Noel Road
Dallas, Texas 75221-5067
Dear Sirs:
We (the "Underwriters") understand that Oryx Energy Company, a
Delaware corporation (the "Company"), proposes to issue and sell $_________
aggregate principal amount of its ______________ Notes due _________________
(the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell all of the Offered
Securities, and each of the Underwriters agrees, severally and not jointly, to
purchase the respective principal amount of Offered Securities set forth
opposite its name below, in each case at a purchase price of ______% of the
principal amount of such Securities, plus accrued interest, if any, from
_____________ to the date of payment and delivery.
<TABLE>
<CAPTION>
Principal
Amount of
Name Securities
---- ----------
<S> <C>
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $
==========
</TABLE>
The Underwriters will pay for such Offered Securities by wire
transfer of Federal or similar same day funds, upon delivery of the Offered
Securities at the offices of Milbank, Tweed, Hadley & McCloy at 10:00 a.m. (New
York time) on _____________ or at such other time, not later than 10:00 a.m.
(New York time) on such date as shall be jointly designated by the Underwriters
and the Company (the "Closing Date").
<PAGE> 22
The Offered Securities shall have the terms set forth in the
Prospectus dated _________________ (the "Prospectus"), and the Prospectus
Supplement dated ______________ (the "Prospectus Supplement"), including the
following:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
All provisions of the document entitled Oryx Energy Company
Underwriting Agreement Standard Provisions (Debt) dated ________________, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein, except to the extent that such provisions are amended or
supplemented by this Agreement.
C-5
<PAGE> 23
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[Underwriter]
By:
---------------------------------
Name:
Title:
Accepted:
ORYX ENERGY COMPANY
By:
---------------------------------
Name: Edward W. Moneypenny
Title: Executive Vice President,
Finance, Chief Financial
Officer and Treasurer
C-6
<PAGE> 1
EXHIBIT 1.2
[Date]
ORYX ENERGY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (EQUITY)
From time to time, Oryx Energy Company, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the issuance and sale of designated securities to the several
Underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time common stock and
preferred stock. Such equity securities will, if other than common stock, have
varying liquidation values, rates and times of payment of dividends, selling
prices, conversion terms (including whether they may be converted at the option
of the holder thereof into newly-issued shares (the "Conversion Shares") of the
Company's Common Stock, par value $1.00 per share), redemption terms and other
terms. Any such equity securities and any Conversion Shares are herein
sometimes collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange Commission
(the "Commission"), in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (herein referred to
collectively as the "Act"), a registration statement including a prospectus
relating to the Securities and has filed or proposes to file with the
Commission a prospectus supplement or supplements specifically relating to the
Offered Securities pursuant to Rule 424 under the Act in the form furnished by
the Company to the Manager or Managers named in the Underwriting Agreement (the
"Manager") or, to the extent not completed at the time of execution of the
Underwriting Agreement, in such form as the Company and the Manager shall have
agreed to at such time. The term Registration Statement means the registration
statement as amended to the date of the Underwriting Agreement. The term Basic
Prospectus means the prospectus included in the Registration Statement. The
term Prospectus means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Offered Securities in the form first used to confirm sales of
the Offered Securities. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Registration Statement",
"Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include, in
1
<PAGE> 2
each case, the material, if any, incorporated by reference therein.
The Company and the Underwriters agree as follows:
1. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement is entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Offered Securities shall
be made by certified or official bank check or by wire transfer payable to the
order of the Company in funds specified in the Underwriting Agreement at the
time and place set forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Manager
shall request not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery with respect to the
Offered Securities are herein referred to as the Closing Date.
3. Certain Covenants of the Company. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants
as follows:
(a) To furnish the Manager, without charge, two signed copies
of the Registration Statement (including exhibits thereto and documents
incorporated therein by reference), as many copies of the preliminary
prospectus as the Manager may reasonably request and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and
amendments thereto as the Manager may reasonably request and to pay all
reasonable costs associated therewith, including all printing and
mailing costs. The Company agrees to timely file the Prospectus pursuant
to Rule 424 and to provide the Manager with evidence of such filing. The
terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement and to file no such proposed amendment
or supplement to which the Manager reasonably objects in writing;
provided, that the foregoing shall not apply to amendments or
supplements that relate to securities registered under the Registration
Statement that are not Offered Securities.
(c) If, at any time when a Prospectus relating to the Offered
Securities is required by law to be delivered under the Act, any event
shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements
2
<PAGE> 3
therein, in light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Offered Securities
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply with
law. The costs and expenses relating to any such amendment or supplement
shall be borne by the Company in the case of an amendment or supplement
within 9 months of the date of the Agreement and by the Underwriters
thereafter.
(d) The Company agrees to use its best efforts to prevent the
issuance of any stop order by the Commission and, if issued, to notify
you of the issuance thereof and to use its best efforts to obtain as
soon as possible the withdrawal thereof.
(e) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to take reasonable steps 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 reasonably necessary to
complete the distribution of the Offered Securities, and to pay all
reasonable expenses (including fees and disbursements of counsel for the
Underwriters) in connection therewith as well as all fees, if any,
payable in connection with the review of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc.
(f) To make generally available to the Company's security
holders as soon as practicable an earnings statement or statements of
the Company which shall satisfy the provisions of Section 11(a) of the
Act.
(g) That, without the prior written consent of the Manager, it
will not offer, sell, contract to sell or otherwise dispose of any
securities of the Company which are substantial similar to the
Securities or any securities convertible into or exercisable or
exchangeable for Common Stock during the Lock-Up Period specified in the
Underwriting Agreement, other than (i) the Offered Securities to be sold
hereunder; (ii) the Common Stock issuable upon conversion of the Offered
Securities or conversion of any other existing securities convertible
into Common Stock or upon exercise of any existing options to purchase
Common Stock; and (iii) options or shares of Common Stock sold or issued
pursuant to any existing employee benefit plan or arrangement of the
Company or any of its subsidiaries.
(h) To use its best efforts to obtain the listing of the
Offered Securities on any securities exchange or automated quotation
system on which the Company's equity securities of the same class as the
Offered Securities are listed and to pay all costs and expense
associated therewith.
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<PAGE> 4
4. Reimbursement of Underwriters' Expenses. If this Agreement
shall be terminated by the Underwriters or any of them, because of any failure
or refusal on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company shall
be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement, with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel itemized in
detail reasonably satisfactory to the Company) reasonably incurred by such
Underwriters in connection with the Offered Securities.
5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Offered Securities
hereunder on the First Closing Date or the Option Closing Date, as the case may
be, are subject to the conditions:
(a) That, at such Closing Date, the Company shall have
furnished to the Manager an opinion of William C. Lemmer, Vice
President, General Counsel and Secretary of the Company, dated the
Closing Date, in substantially the form set forth as Exhibit A.
(b) That, at such Closing Date, the Company shall have
furnished to the Manager an opinion of Akin, Gump, Strauss, Hauer &
Feld, L.L.P., special counsel for the Company, dated the Closing Date,
in substantially the form set forth as Exhibit B.
(c) That, at such Closing Date, the Manager shall have
received an opinion of Milbank, Tweed, Hadley & McCloy, counsel for the
Underwriters, dated the Closing Date, in substantially the form set
forth as Exhibit C.
(d) That, at such Closing Date, the Company shall have
furnished to the Manager a letter addressed to the Underwriters and
dated such Closing Date, in form and substance satisfactory to the
Manager, from Coopers & Lybrand, independent public accountants,
containing (or confirming as of a later date) statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Company contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
(e) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and signed
by an executive officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the Company
contained herein are true and correct in all material respects as
of such Closing Date;
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<PAGE> 5
(ii) no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission;
(iii) subsequent to the execution and delivery of this
Agreement and prior to such Closing Date, there has not occurred
any downgrading, nor shall any notice have been given of (A) any
intended or potential downgrading or (B) any review or possible
change that does not indicate the direction of a possible change,
in the rating accorded any of the Company's securities by either
of Standard & Poor's Ratings Group or Moody's Investors Service,
Inc.; and
(iv) there has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the financial condition, or in the business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the
Prospectus exclusive of any supplement or amendment thereto,
whether or not incorporated by reference; and
(v) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing and in accordance with Section 3(a) of
this Agreement.
(f) That the Company shall have performed in all material
respects such of its obligations under this Agreement as are to be
performed by the terms hereof at or before the time of purchase.
6. Termination of Agreement. If the sale to the Underwriters
of the Offered Securities, as contemplated in this Agreement, is not carried
out by the Underwriters for any reason permitted hereunder or if such sale is
not carried out because the Company shall be unable to comply with any of the
terms hereof, the Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 4 and 9 hereof), and
the Underwriters shall be under no obligation or liability to the Company under
the agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
If the Manager or any group of Underwriters elect to terminate
this Agreement as provided in this Section 6, the Company and each other
Underwriter shall be notified promptly by letter or telegram.
7. Defaulting Underwriters. If, on the First Closing Date or
the Option Closing Date (if any is specified in the Underwriting Agreement), as
the case may be, any Underwriter or Underwriters shall default in its or their
obligation to take up and pay for the Offered Securities to be purchased by it
or them hereunder on such date and,
(i) the aggregate number of Offered Securities which
the defaulting
5
<PAGE> 6
Underwriters agreed but failed to purchase is 10% or less of the
aggregate number of Firm Shares to be purchased hereunder, the
non-defaulting Underwriters, whether one or more, or the Company,
may make arrangements satisfactory to the Company and the non-
defaulting Underwriters for the purchase of such Offered
Securities by other persons, including any of the non-defaulting
Underwriters, but if no such arrangements are made by the First
Closing Date or the Option Closing Date, as the case may be, the
non-defaulting Underwriters shall be obligated severally, in the
proportions that the number of Firm Shares set forth opposite
their respective names in the Underwriting Agreement bears to the
aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, to purchase the Offered
Securities which the defaulting Underwriters agreed but failed to
purchase on such date; provided that in no event shall the number
of Offered Securities which any non-defaulting Underwriter has
agreed to purchase hereunder be increased by an amount in excess
of one-ninth of such number, without the written consent of the
non-defaulting Underwriter; or
(ii) the aggregate number of Offered Securities which
the defaulting Underwriters agreed but failed to purchase on such
date is more than 10% of the aggregate number of Firm Shares to
be purchased hereunder and arrangements satisfactory to the non-
defaulting Underwriters and the Company for the purchase of such
Offered Securities are not made by the non-defaulting
Underwriters or the Company within thirty-six hours after such
default, the Underwriting Agreement will terminate without
liability on the part of the non-defaulting Underwriters or the
Company.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Offered Securities hereunder unless all of the Firm Shares are
purchased by the Underwriters (or by substituted underwriters selected by the
Manager with the approval of the Company or selected by the Company with the
Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the First Closing Date or the Option Closing Date, as the
case may be, for a period not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any underwriter substituted under this Section 7 with like effect as if
such substituted underwriter had originally been named herein.
8. Representations and Warranties. The Company represents and
warrants
6
<PAGE> 7
to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any 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,
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 8(b)
do not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter expressly for
use therein.
(c) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(d) each of Sun Energy Partners, L.P., Sun Operating Limited
Partnership and Oryx U.K. Energy Company has been duly incorporated or
formed and is validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation and has all consents,
authorizations, approvals, orders, certificates and permits of and from,
and has made all declarations and filings with, all federal, state,
local and other governmental authorities, and all courts or other
tribunals necessary to conduct its business as described in the
Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
7
<PAGE> 8
(e) this Agreement has been duly authorized, executed and
delivered by the Company;
(f) Coopers & Lybrand are independent accountants with respect
to the Company as required by the Securities Act and the applicable
rules and regulations thereunder;
(g) the Company has authorized and outstanding capital stock
as set forth under "Description of Capital Stock" in the Prospectuses,
which capital stock is validly issued, fully paid and non-assessable and
conforms in all material respects to the descriptions contained therein;
(h) the Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance
of such Offered Securities will not be subject to any preemptive or
similar rights;
(i) the Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights; and
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement have
been authorized by all necessary corporate action and will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or to
the best of the Company's knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or its subsidiaries, that is material to the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization
or order of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the securities or Blue
Sky laws of the various states.
9. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities, in so far as such losses, claims, damages and
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any Basic Prospectus or any
preliminary prospectus, or arise out of or are based upon
8
<PAGE> 9
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished to the Company in writing by any Underwriter
expressly for use therein. The foregoing indemnity agreement with respect to
any Basic Prospectus or any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act, or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any Basic Prospectus or any preliminary prospectus.
(c) In case any proceeding shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (hereinafter called the indemnified
party) shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to differing interests between them. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties, and
that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Underwriters and such control
persons of Underwriters, such firm shall be designated in writing by the
Manager. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be
liable for any
9
<PAGE> 10
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 9 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and of the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Underwriters 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 or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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 which does not
take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, 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 Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which 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 Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting percentages determined by the ratio which the original purchase
obligation of any Underwriter appearing in the Underwriting Agreement (or such
amount
10
<PAGE> 11
increased as provided in Section 7 above) bears to the total purchase
obligations of the Underwriters set forth therein.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (1)
any termination of this Agreement, (2) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (3) acceptance of and payment for any of the Offered Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the First Closing Date or the Option Closing Date, as the case may be,
(i) trading generally shall have been suspended or materially limited on the
New York Stock Exchange; (ii) trading in the common stock of the Company shall
have been suspended or materially limited on the New York Stock Exchange; (iii)
a general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities or any calamity
or crisis that, in the judgment of the Manager, is material and adverse and (b)
such event singly or together with any other such event makes it, in the
judgment of the Manager, impracticable to market the Offered Securities being
delivered on such Closing Date on the terms and in the manner contemplated in
the Prospectus.
11. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement
between the parties and shall become effective at such time as each of the
parties shall have signed such counterparts and shall have notified the other
party thereof.
12. Construction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is made
solely for the benefit of the Underwriters and the Company, and the controlling
persons, directors and officers referred to in Section 9 hereof, and their
respective successors, assigns, executors and administrators. No other person
shall acquire or have any right under or by virtue of this Agreement.
14. Section Headings. The Section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part
of this Agreement.
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<PAGE> 12
EXHIBIT A
FORM OF OPINION OF
WILLIAM C. LEMMER, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY OF THE COMPANY
______________, 19__
[MANAGER]
as Manager for the several Underwriters
[ADDRESS]
Dear Sirs:
I am Vice President, General Counsel and Secretary of Oryx Energy
Company, a Delaware corporation (the "Company"), and in such capacity am
familiar with the Underwriting Agreement dated ____________, 199_ (the
"Underwriting Agreement") between you and the Company, pursuant to which the
Underwriters severally agree to purchase from the Company an aggregate of
_________ shares of [title of securities] of the Company (the "Offered
Securities").
I, or persons responsible to me, have examined originals or copies,
certified or otherwise identified to my satisfaction, and such documents,
corporate records, certificates of public officials and other instruments as I
have deemed necessary or advisable for the purpose of rendering this opinion.
Defined terms herein unless otherwise specified shall have the meanings
specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement on Form S-3
(File No. 33-____) relating to up to an aggregate of _______ shares of Offered
Securities filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), exhibits
thereto and documents incorporated by reference therein. Such Registration
Statement is now effective, and together with the exhibits thereto and
documents incorporated by reference therein is herein called the "Registration
Statement". The prospectus constituting a part thereof, in the form filed with
the Commission pursuant to Rule 424 of the rules and regulations under the Act,
together with the prospectus supplement (other than a preliminary prospectus
supplement) specifically relating to the Offered Securities, as filed with, or
mailed for filing to, the Commission pursuant to Rule 424, is herein called the
"Prospectus".
A-1
<PAGE> 13
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect upon
the Company and its subsidiaries, taken as a whole;
(2) Each of the Company, Sun Energy Partners, L.P., Sun Operating
Limited Partnership and Oryx U.K. Energy Inc. (such corporations or
partnerships other than the Company being collectively referred to herein as
the "Subsidiaries") has been duly incorporated or formed and is validly
existing in the jurisdiction of its incorporation or formation, and has all
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, and all courts or other tribunals,
necessary to conduct its business as described in the Prospectus, except to the
extent that the lack of such consents, authorizations, approvals, orders,
certificates or permits could not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(3) The Company has an authorized and outstanding capital stock as
set forth under "Description of Capital Stock" in the Prospectuses, which
capital stock conforms in all material respects to the descriptions contained
therein;
(4) The Offered Securities have been duly authorized and, when issued
and delivered in accordance with the terms of the Underwriting Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Offered Securities will not be subject to any preemptive or similar rights;
(5) The Conversion Shares, if any, have been duly authorized and
reserved for issuance upon conversion of the Offered Securities and, when
issued and delivered upon any such conversion, will be validly issued, fully
paid and non-assessable, and the issuance of such Conversion Shares will not be
subject to any preemptive or similar rights;
(6) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(7) The execution of delivery and performance of the Underwriting
Agreement will not contravene any provision of applicable law or the
Certificate of Incorporation, By-laws or the agreement of limited partnership
of the Company or any Subsidiary or any material agreement or other material
instrument binding upon the Company or any Subsidiary, or any order or
regulation known to me to be applicable to the Company or any Subsidiary of any
court, regulatory body, administrative agency or governmental body having
jurisdiction in the premises, and no consent, approval or authorization of any
governmental body or agency (other
A-2
<PAGE> 14
than pursuant to any state securities or Blue Sky law) is required for the
performance of the Underwriting agreement and the issuance and sale of the
Offered Securities pursuant to the Underwriting Agreement;
(8) The statements (1) in the Registration Statement under Item 15
and (2) in the Company's most recent Annual Report on Form 10-K under
["Business and Properties - Other" and "Legal Proceedings"], and the statements
in the Prospectus with regard to the ownership of the Subsidiaries, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(9) After due inquiry, I do not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries (including the Subsidiaries) is a party or to which any of the
properties of the Company or any of its subsidiaries (including the
Subsidiaries) is subject which is required to be described or of any contract
or other document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required; and
(10) I (a) am of the opinion that (except as to financial statements
included therein, as to which I am not called upon to express any opinion) each
document, if any, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in the Registration
Statement and the Prospectus complied when so filed as to form in all material
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement, and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements and other financial data included therein, as to which I am not
called upon to express any opinion), comply as to form in all material respects
with the Securities Act, (c) believe that (except as to financial statements
and other financial data included therein, as to which I am not called upon to
express any belief) each part of the Registration Statement when such part
became effective or was incorporated by reference into the Registration
Statement did not contain, and as of the date this opinion is delivered, does
not contain, any 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, and (d) believe that (except as to financial statements
and other financial data included therein, as to which I am not called upon to
express any belief) the Registration Statement and the Prospectus, as amended
or supplemented, if applicable, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
A-3
<PAGE> 15
I am qualified to practice law in the State of New York and I express no
opinion except as to matters governed by the laws of the State of New York, the
General Corporation Law of the State of Delaware and United States federal
laws.
Very truly yours,
William C. Lemmer
A-4
<PAGE> 16
EXHIBIT B
FORM OF OPINION OF
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
SPECIAL COUNSEL FOR THE COMPANY
___________________, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for Oryx Energy Company (the "Company") in
connection with the issue and sale to the several underwriters (the
"Underwriters"), for whom you are acting as Manager, named in the Underwriting
Agreement dated __________, 199_ (the "Underwriting Agreement") an aggregate of
_________ shares of [title of securities] (the "Offered Securities") of the
Company. Defined terms herein unless otherwise specified shall have the
meanings specified in the Underwriting Agreement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such other documents, corporate records, certificates
of public officials and other instruments as we have deemed necessary or
advisable for the purpose of rendering this opinion, including those relating
to the authorization, execution and delivery by the Company of the Underwriting
Agreement and the authorization, issuance and sale of the Offered Securities by
the Company.
We have reviewed the Company's Registration Statement on Form S-3 (File
No. 33-_____) relating to up to an aggregate ______ shares of Offered
Securities filed with the Securities and Exchange Commission (the "Commission")
pursuant to the provisions of the Securities Act of 1933, as amended (the
"Act"), and the documents incorporated by reference in the prospectus included
therein (the "Incorporated Documents"). In addition, we have reviewed evidence
that the registration statement was declared effective under the Act. The
registration statement (including the Incorporated Documents) as amended to the
date of the Underwriting Agreement is hereinafter referred to as the
"Registration Statement", and the prospectus included in the Registration
Statement, as supplemented by the final prospectus supplement dated __________
specifically relating to the Offered Securities in the form first filed with
the Commission pursuant to Rule 424 under the Act and used to confirm sales of
the Offered Securities is hereinafter referred to as the "Prospectus", and such
term and the term "Registration Statement" each include the Incorporated
Documents.
Based upon the foregoing, we are of the opinion that:
B-1
<PAGE> 17
(i) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Offered Securities have been duly authorized and,
when delivered to and paid for by the Underwriters in accordance with the
Underwriting Agreement, will be validly issued, fully paid and nonassessable,
and the issuance of such Offered Securities will not be subject to any
preemptive or similar rights;
[(iii) the Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and, when
issued and delivered upon any such conversion, will be validly issued, fully
paid and non-assessable, and the issuance of such Conversion Shares will not be
subject to any preemptive or similar rights; and]
(iv) the statements in the Prospectus under "Description of
Offered Securities" and "Underwriting" (in the Prospectus Supplement), and
"Description of Capital Stock" (in the Basic Prospectus), insofar as such
statements constitute a summary of the documents referred to therein, fairly
present the information called for with respect to such documents.
We have not ourselves confirmed the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement or Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our confirmation and verification. On the
basis of such review and discussion, but without independent confirmation or
verification, except as stated, (i) we believe that the Registration Statement
and Prospectus (except for the financial statements and other financial and
statistical data included therein or omitted therefrom, as to which we are not
called upon to express any statement) on the date of the Underwriting Agreement
did not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading and that
the Prospectus (except as aforesaid) does not on the date hereof contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading and (ii) we are of the opinion that the
Registration Statement and Prospectus (except for the financial statements and
other financial and statistical data included therein or omitted therefrom, as
to which we are not called upon to express an opinion) comply as to form in all
material respects with the Act and the 1939 Act and the rules and regulations
of the Commission thereunder.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York (other than
the state securities or "blue sky" laws of such state), the federal laws of the
United States of America and the General Corporation Law of the State of
Delaware.
B-2
<PAGE> 18
This opinion is furnished by us, as counsel to the Company, to
you as Manager for the several Underwriters in connection with the issuance and
sale of the Offered Securities, solely for your benefit. This opinion may not
be relied upon by you for any other purpose or relied upon by or furnished to
any other person without our prior written consent.
Very truly yours,
B-3
<PAGE> 19
EXHIBIT C
FORM OF OPINION OF
MILBANK, TWEED, HADLEY & MCCLOY
COUNSEL FOR THE UNDERWRITERS
, 199__
[Manager]
as Manager for the several Underwriters
[Address]
Dear Sirs:
We have acted as counsel for you in connection with the purchase
by the several Underwriters from Oryx Energy Company (the "Company"), pursuant
to the Underwriting agreement dated___________________ ___, 199__ between you
and the Company (the "Underwriting Agreement") of an aggregate of
______________ shares of [name of securities] (the "Offered Securities") of the
Company.
We have examined originals, or copies certified to our
satisfaction, of such corporate records of the Company, agreements and other
instruments, certificates of public officials, certificates of officers and
representatives of the Company and of the Trustee and other documents as we
have deemed it necessary to require as a basis for the opinions hereinafter
expressed. In our examination of documents we have assumed the genuineness of
all signatures, the authenticity of documents submitted to us as originals, the
conformity with original documents of all documents submitted to us as copies
and the authenticity of the originals of such later documents. As to various
questions of fact material to such opinions we have, when relevant facts were
not independently established, relied upon certifications by officers of the
Company, and other appropriate persons and statements contained in the
Registration Statement and Prospectus hereinafter mentioned.
In addition, we attended the closing held today at our offices in
New York, New York, during the course of which the Company delivered the
Offered Securities to your representative at the office of The Depository Trust
Company, New York, New York, in accordance with the Underwriting Agreement,
against payment therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and has corporate power
to transact the business in which it is now engaged.
C-1
<PAGE> 20
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Registration Statement on Form S-3 with respect to the
Offered Securities, as amended (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933, as amended (the "Act"), has become
effective and remains in effect at this date, and the Prospectus dated
__ ___________ ___, 199__, including all documents incorporated by
reference pursuant to the requirements of Form S-3 under the Act
constituting a part thereof (the "Basic Prospectus"), as supplemented by
the prospectus supplement dated ______________ ___, 199__ relating to
the Offered Securities (the "Prospectus Supplement") (the Basic
Prospectus as supplemented by the Prospectus Supplement being herein
referred to as the "Prospectus"), may lawfully be used for the purposes
specified in the Act in connection with the offer and sale of the
Offered Securities in the manner therein specified.
4. The Registration Statement and the Prospectus (except the
financial statements and other financial and statistical data included
therein as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of
the Act, the Securities Exchange Act of 1934, as amended, and to the
applicable rules and regulations of the Commission under said Acts.
As to the financial statements included in the Prospectus, we
have made no examination of the Company's books of account and we
therefore express no opinion. As to the statements under "Description of
Offered Securities" in the Basic Prospectus, as supplemented by
statements under "Description of Capital Stock" in the Prospectus
Supplement, we are of the opinion that the statements are accurate and
do not omit any material fact required to be stated therein or necessary
to make such statements not misleading. As to other matters we have not
undertaken to determine independently the accuracy or completeness of
the statements contained in the Registration Statement or in the
Prospectus. We have, however, participated in extended conferences with
counsel for and representatives of the Company in connection with the
preparation of the Registration Statement, and we have reviewed all
documents incorporated by reference in the Prospectus pursuant to the
requirements of Form S-3 under the Act and such of the corporate records
of the Company as we deemed advisable. None of the foregoing disclosed
to us any information which gave us reason to believe that the
Registration Statement or the Prospectus (except the financial
statements and other financial and statistical data included therein as
to which we express no opinion) contains on the date hereof any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
5. The Offered Securities conform to the terms of the
Underwriting Agreement and to the statements with respect thereto
contained in the Registration
C-2
<PAGE> 21
Statement and the Prospectuses and have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Offered Securities will not be subject to any
preemptive or similar rights.
6. The Conversion Shares, if any, have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
We have also examined the opinions dated the date hereof of
William C. Lemmer, Vice President, General Counsel and Secretary of the
Company, and Akin, Gump, Strauss, Hauer & Feld, L.L.P., special counsel for the
Company, delivered in accordance with the provisions of Sections 5(a) and 5(b),
respectively, of the Underwriting Agreement, which opinions are in form
satisfactory to us.
We do not express any opinion as to matters governed by any laws
other than the laws of the State of New York, the Federal laws of the United
States and the General Corporation Law of the State of Delaware.
Very truly yours,
C-3
<PAGE> 22
TERMS AGREEMENT
[DESCRIPTION OF SECURITIES]
[DATE]
Oryx Energy Company
13155 Noel Road
Dallas, Texas 75221-5067
Dear Sirs:
We (the "Underwriters") understand that Oryx Energy Company, a Delaware
corporation (the "Company"), proposes to issue and sell an aggregate of
___________ shares (the "Firm Shares") of [Description of Offered Security]
(the "Offered Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell all of the Firm Shares, and
each of the Underwriters agrees, severally and not jointly, to purchase the
respective number of Firm Shares set forth opposite its name below, in each
case at a purchase price of $____ per share of such Offered Securities (the
"Purchase Price").
We also understand that the Company proposes to sell not more than an
additional _______ shares (the "Additional Shares") of the Offered Securities,
if and to the extent that we, as Manager of the offering, shall have determined
to exercise, on behalf of the Underwriters, the right to purchase such shares.
The Firm Shares and the Additional Shares are collectively referred to as the
"Offered Securities."
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell the Additional Shares, and
the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to _______ Additional Shares at the Purchase Price. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. If any Additional Shares
are to be purchased, each Underwriter agrees, severally and not jointly, to
purchase the number of Additional Shares (subject to adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Shares to be purchased as the number of Firm Shares
set forth opposite its name below bears to the total number of Firm Shares.
C-1
<PAGE> 23
<TABLE>
<CAPTION>
Principal
Amount of
Name Firm Shares
---- -----------
<S> <C>
Total . . . . . . . . . . . . . . __________
</TABLE>
The Underwriters will pay for such Offered Securities by wire transfer
of Federal or similar same day funds, upon delivery of the Offered Securities
at the offices of Milbank, Tweed, Hadley & McCloy at 10:00 a.m. (New York time)
on _____________ or at such other time, not later than 10:00 a.m. (New York
time) on such date as shall be jointly designated by the Underwriters and the
Company (the "First Closing Date").
The Underwriters will pay for any Additional Shares upon delivery
thereof at the offices of Milbank, Tweed, Hadley & McCloy at 10:00 a.m. (New
York time) on _____________ or at such other time, not later than 10:00 a.m.
(New York time) on such date as shall be jointly designated by the Underwriters
and the Company (the "Option Closing Date"). The Option Closing Date may be the
same day as the First Closing Date but shall in no event be earlier than the
First Closing Date nor later than [ten] business days after the giving of the
notice referred to hereinafter. The notice of the determination to exercise the
option to purchase Additional Shares and the Option Closing Date may be given
at any time within 30 days after the date of this Agreement.
Certificates for the Firm Shares and the Additional Shares shall be in
definitive form and registered in such names and in such denominations as we
shall request in writing not less than two full business days prior to the
First Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
The Lock-Up Period for the offering shall be a period of ____ days
beginning the day after the date of the Prospectus.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________ and the Prospectus Supplement dated ___________. [IF
PREFERRED STOCK, ADD INFORMATION ABOUT LIQUIDATION PREFERENCE, DIVIDEND RATE,
CONVERSION AND REDEMPTION, AS APPLICABLE].
All provisions of the document entitled Oryx Energy Company
Underwriting Agreement Standard Provisions (Debt) dated ________________, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent
C-2
<PAGE> 24
as if such provisions had been set forth in full herein, except to the extent
that such provisions are amended or supplemented by this Agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[Underwriter]
By:
---------------------------------
Name:
Title:
Accepted:
ORYX ENERGY COMPANY
By:
---------------------------------
Name: Edward W. Moneypenny
Title: Executive Vice President,
Finance, Chief Financial
Officer and Treasurer
C-3
<PAGE> 1
EXHIBIT 4.4
================================================================================
ORYX ENERGY COMPANY
AND
IBJ SCHRODER BANK & TRUST COMPANY
Trustee
_______________________
Indenture Relating to Senior Subordinated Debt Securities
Dated as of __________________
_______________________
================================================================================
<PAGE> 2
ORYX ENERGY COMPANY
Reconciliation and tie between Sections 310-318(a)
of the Trust Indenture Act of 1939 and the
Indenture relating to Senior Subordinated Debt Securities,
dated as of _________ __, ____
<TABLE>
<CAPTION>
Trust
Indenture Indenture
Act Section Section
- ------------ -------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 608
311(a) . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . 703(a)(2)
703(b)
(c) . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . 702(c)
313(a) . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . 703(a)
703(b)
(d) . . . . . . . . . . . . . . . . . 703(c)
314(a) . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . 601(a)
601(c)
(b) . . . . . . . . . . . . . . . . . 602
703(a)(6)
(c) . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . 601
(d)(1) . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . 514
316(a) . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . 1005
318(a) . . . . . . . . . . . . . . . . . 107
</TABLE>
___________________________
NOTE: This reconciliation and the tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
RECITALS OF THE COMPANY
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<S> <C> <C>
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 2
Corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . . . . 4
Oryx U.K. Energy . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 4
Partnership . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . 5
Representative . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . 5
Restricted Property . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
- i -
<PAGE> 4
<TABLE>
<S> <C> <C>
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . 6
SOLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 7
Stockholders' Equity . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . . . 11
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 114. No Security Interest Created. . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Face of Security. . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Reverse of Security. . . . . . . . . . . . . . . . . 15
SECTION 204. Form of Trustee's Certificate of Authentication. . . . . . . 21
SECTION 205. Securities Issuable in Global Form. . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . 22
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . 24
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . 27
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . 28
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . 29
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . 30
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . 30
</TABLE>
- ii -
<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . 30
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities. 37
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . 37
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 37
SECTION 508. Unconditional Right of Holders to Accept Principal, Premium,
and Interest. . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . 38
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . 39
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 39
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . 40
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . 43
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . 43
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . . 44
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . 45
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . 45
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . 46
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 613. Preferential Collection of Claims Against Company. . . . . . 48
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . 52
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. . 54
SECTION 702. Preservation of Information; Communications to Holders. . . 54
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . 55
SECTION 704. Reports by the Company. . . . . . . . . . . . . . . . . . . 57
</TABLE>
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<PAGE> 6
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
<TABLE>
<S> <C>
SECTION 801. Company May Consolidate, Etc., On Certain Terms. . . . . . . 57
SECTION 802. Successor Corporation to be Substituted. . . . . . . . . . . 58
SECTION 803. Opinion of Counsel and Officers' Certificate to be Given
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . 59
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . 60
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . 61
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . 62
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . 62
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . 62
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . 62
SECTION 1002. Offices for Notices and Payments. . . . . . . . . . . . . . 63
SECTION 1003. Incurrence of Layered Indebtedness. . . . . . . . . . . . . 63
SECTION 1004. Appointments to Fill Vacancies in Trustee's Office. . . . . 63
SECTION 1005. Provision as to Paying Agent. . . . . . . . . . . . . . . . 63
SECTION 1006. Certificate to Trustee. . . . . . . . . . . . . . . . . . . 65
SECTION 1007. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . 65
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . 65
SECTION 1103. Selection by Trustee of Securities to be Redeemed. . . . . . 66
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 66
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . 67
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . . . . . 67
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . 68
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 68
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. . . . 68
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . 69
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate. . . . . . . . . . . . . . . . . 69
</TABLE>
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<PAGE> 7
ARTICLE FOURTEEN
DEFEASANCE
<TABLE>
<S> <C>
SECTION 1401. Applicability of Article. . . . . . . . . . . . . . . . . . 70
SECTION 1402. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1403. Survival of Company's Obligations. . . . . . . . . . . . . . 71
SECTION 1404. Application of Trust Money. . . . . . . . . . . . . . . . . 71
SECTION 1405. Repayment to Company. . . . . . . . . . . . . . . . . . . . 71
SECTION 1406. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Agreement of Subordination. . . . . . . . . . . . . . . . . 72
SECTION 1502. Payments to Securityholders. . . . . . . . . . . . . . . . 72
SECTION 1503. Subrogation of Securities. . . . . . . . . . . . . . . . . 74
SECTION 1504. Authorization by Securityholders. . . . . . . . . . . . . . 75
SECTION 1505. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . 75
SECTION 1506. Trustee's Relation to Senior Debt. . . . . . . . . . . . . . 76
SECTION 1507. No Impairment of Subordination. . . . . . . . . . . . . . . 77
SECTION 1508. Acceleration of Payment of Securities. . . . . . . . . . . . 77
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Provisions Binding on Company's Successors. . . . . . . . . 77
SECTION 1602. Official Acts by Successor. . . . . . . . . . . . . . . . . 78
SECTION 1603. Addresses for Notices, etc. . . . . . . . . . . . . . . . . 78
SECTION 1604. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. . . . . . . . . . . . . . . . . . 78
SECTION 1605. Third Party Beneficiaries . . . . . . . . . . . . . . . . . 78
SECTION 1606. Execution in Counterparts. . . . . . . . . . . . . . . . . 79
</TABLE>
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<PAGE> 8
INDENTURE, dated as of ________________ between Oryx Energy Company, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 13155 Noel Road,
Dallas, Texas 75240-5067 and IBJ Schroder Bank & Trust Company, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
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<PAGE> 9
Certain terms, used principally in Articles Six and Ten are defined in
those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" has the meaning specified in Section 614.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. As used in this Indenture,
reference to action taken pursuant to a Board Resolution shall include all
action taken by an officer of the Company which has been duly authorized by the
Board of Directors to take such action.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President
or a Vice President, and attested by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered and which at the date of this Indenture is located at One State
Street, 11th floor, New York, New York 10004.
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<PAGE> 10
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Company pursuant to
Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to the Depository for such series or its nominee, and
registered in the name of such Depository.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the Option of
the Holder or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or any Vice President and by the Comptroller, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be satisfactory to the
Trustee.
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<PAGE> 11
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Oryx U.K. Energy" means Oryx U.K. Energy Company, a Delaware
corporation and wholly owned subsidiary of the Company.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of
Outstanding Securities have performed any Act hereunder, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purpose shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
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<PAGE> 12
"Partnership" means Sun Energy Partners, L.P., a Delaware limited
partnership.
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or Pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Representative" means, with respect to any Senior Debt, the indenture
trustee or other trustee, agent or other representative(s), if any, of holders
of such Senior Debt.
"Responsible Officer", when used with respect to the Trustee, means the
Chairman and Vice-Chairman of the Board of Directors, the President, any Vice
President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer 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 trust matter is referred
at the Trustee's Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Restricted Property" means, with respect to the Securities of any
series, any interest owned by the Company or a Subsidiary on the date of
original issuance of the Securities of such series in property situated in the
United States (both onshore and offshore) classified by such owner as
productive of crude oil, natural gas or other petroleum hydrocarbons in paying
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<PAGE> 13
quantities as of the date of original issuance of the Securities of such series
and any shares of capital stock or indebtedness of a Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary which owns Restricted
Property.
"Security" has the meaning stated in the first recital of this Indenture
and more particularly means any Security authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" will be defined to mean the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of the Indenture or thereafter
incurred, created or assumed: (a) all indebtedness of the Company for money
borrowed (including any indebtedness secured by a mortgage or other lien which
is (i) given to secure all or part of the purchase price of property subject
thereto, whether given to the vendor of such property or to another or (ii)
existing on property at the time of acquisition thereof) and indebtedness of
the Company evidenced by notes, debentures, bonds or other securities sold by
the Company for money; (b) all lease obligations of the Company which are
capitalized on the books of the Company in accordance with generally accepted
accounting principles; (c) all indebtedness of others of the kinds described in
the preceding clause (a) and all lease obligations of others of the kind
described in the preceding clause (b) assumed by or guaranteed in any manner by
the Company or in effect guaranteed by the Company through an agreement to
purchase, contingent or otherwise; (d) all obligations of the Company with
respect to letters of credit issued in connection with indebtedness of others
of the kind described in the preceding clause (a) or leased obligations of the
kind described in the preceding clause (b); and (e) all renewals, extensions or
refundings of indebtedness of the kinds described in either of the preceding
clauses (a) and (c), all renewals or extensions of lease obligations of the
kinds described in either of the preceding clauses (b) and (c) and all renewals
or extensions of obligations with respect to letters of credit of the kind
described in the preceding clause (d); unless, in the case of any particular
indebtedness, lease obligation, renewal, extension, refunding or obligations
with respect to letters of credit, the instrument or lease creating or
evidencing the same or the assumption or guarantee of the same expressly
provides that such indebtedness, lease, obligation, renewal, extension or
refunding is not superior in right of payment to or is pari passu with the
Securities. Senior Debt with respect to the Securities shall not include any
obligations on account of the Company's 7 1/2% Convertible Subordinated
Debentures Due 2014 or the Company's Subordinated Debt Securities as to which
the Securities are "Senior Debt" (as defined in the indenture pursuant to which
the Company's 7 1/2% Convertible Subordinated Debentures Due 2014 have been
issued and the indenture pursuant to which the Company's Subordinated Debt
Securities have been issued, respectively).
"SOLP" means Sun Operating Limited Partnership, a Delaware limited
partnership.
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<PAGE> 14
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Stockholders' Equity" means the aggregate of (however designated)
capital, capital stock, capital surplus, capital in excess of par value of
stock, earned surplus and net income retained for use in the business, after
deducting the cost of the shares of stock the Company held in its treasury.
"Subsidiary" means any Corporation, partnership or other entity in which
the Company directly or indirectly (i) owns or controls a majority of the
outstanding voting securities having by the terms thereof ordinary voting power
to elect a majority of the board of directors (or other body fulfilling a
substantially similar function) of such entity (irrespective of whether or not
at the time any other class or classes of such voting securities shall have or
might have voting power by reason of the happening of any contingency) or (ii)
in the case of an entity which does not have a board of directors (or other
body fulfilling a substantially similar function) has the authority to control
the policies of such entity (including any partnership as to which the Company
or a Subsidiary is a managing general partner).
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter, "Trustee" shall
mean such successor Trustee who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this instrument was executed, except as
provided in Section 904.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is
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<PAGE> 15
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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<PAGE> 16
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be conclusively proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect to anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to sign any instrument
evidencing or embodying an Act of the Holders. If a record date is fixed, those
persons who were Holders at such record date (or their duly appointed agents),
and only those persons, shall be entitled to sign any such instrument
evidencing or embodying an Act of Holders or to revoke any such instrument
previously signed, whether or not such persons continue to be Holders after
such record date. No such instrument shall be valid or effective for more than
90 days after such record date.
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<PAGE> 17
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
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 in the 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. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
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, such required provision shall control.
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<PAGE> 18
SECTION 108. Effect of Headings and Table of Contents.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any person, other than the parties hereto, any paying agent, any
Security registrar and their successors hereunder, the holders of Securities
and the holders of Senior Debt, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue (or the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, if such payment is made or duly provided for on such next succeeding
Business Day.
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<PAGE> 19
SECTION 114. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries
is located.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
(If the Security is an Original Issue Discount Security, insert -- FOR
PURPOSES OF SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986,
THE ISSUE DATE IS , 19 , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
$____________ PER $____________ OF PRINCIPAL, THE YIELD TO MATURITY IS
%, AND (THERE WAS NO INITIAL SHORT ACCRUAL PERIOD) (THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT ALLOCATED TO THE INITIAL SHORT ACCRUAL PERIOD FROM
, 19 TO , 19 IS $____________ PER $____________ PRINCIPAL AND THE
METHOD WAS USED TO DETERMINE THIS AMOUNT).)
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<PAGE> 20
ORYX ENERGY COMPANY
No. ___________ $____________________
ORYX ENERGY COMPANY, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered
assigns, the principal sum of DOLLARS on
(If the Security is to bear interest prior to Maturity, insert --, and
to pay interest thereon from or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on and
in each year, commencing , at the rate of % per
annum, until the principal hereof is paid or made available for payment (If
applicable insert --, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of % per annum on any overdue
principal and premium and on any overdue installment of interest). The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _______ or _______ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture).
(If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.)
Payment of the principal of (and premium, if any) and (if applicable,
insert -- any such) interest on this Security will be made at the office or
agency of the Company maintained for that purpose in , or at such other
locations as the Company may from time to time designate, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts (if applicable, insert --;
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<PAGE> 21
provided, however, that at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.)
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers under
its corporate seal.
Dated:
ORYX ENERGY COMPANY
By______________________________
Attest:
___________________________
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<PAGE> 22
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of __________ __, 1996 (herein called
the "Indenture"), between the Company and IBJ Schroder Bank & Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $_____________.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company as
defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Security is issued subject to the provisions of
the Indenture with respect to such subordination. Each holder of this
Security, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney in fact for such purpose.
(If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (if applicable, insert -
- - (1) on in any year commencing with the year and ending
with the year through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)) at any time
(on or after , 19 ), as a whole or in part, at the election of the
Company, (if applicable insert -- at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed (on or before (date)
, %, and if redeemed) during the 12-month period beginning
of the years indicated.
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
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<PAGE> 23
and thereafter) at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (if applicable, insert -- (whether
through operation of the sinking fund or otherwise)) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates, all as provided in the
Indenture.)
(If applicable, insert -- The Securities of this series are subject to
redemption upon not less thin 30 days' notice by mail, (1) on in any
year commencing with the year and ending with the year through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time (on or
after ), as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning of
the years indicated.
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.)
(Notwithstanding the foregoing, the Company may not, prior to redeem any
Securities of this series as contemplated by (Clause (2) of) the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or
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<PAGE> 24
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted accounting practice) of less
than % per annum).
(The sinking fund for this series provides for the redemption on in each
year beginning with the year and ending with the year of (not
less than) $____________ ("mandatory sinking fund") and not more than
$____________ aggregate principal amount of Securities of this series.
(Securities of this series acquired or redeemed by the Company otherwise than
through (mandatory) sinking fund payments may be credited against subsequent
(mandatory) sinking fund payments otherwise required to be made in the inverse
order in which they become due.)
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
(If applicable, insert - Except as described in the following paragraph,
the Securities are not redeemable by the Company prior to maturity pursuant to
any optional or mandatory sinking fund provisions.)
(If applicable, insert -- The provisions of Article Fourteen of the
Indenture relating to defeasance shall apply to the Securities of this series,
which provisions shall for all purposes have the same effect as if set forth at
this place.)
(If the Security is not an Original Issue Discount Security. -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.)
(If the Security is an Original Issue Discount Security. -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.)
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the
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<PAGE> 25
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this 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 Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $____________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination (If applicable insert -- and of the same Maturity), as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities are subordinated to Senior Debt. To the extent provided
in the Indenture, Senior Debt must be paid before the Securities may be paid.
The Company agrees, and each Holder by accepting a security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
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<PAGE> 26
No recourse shall be had for the payment of the principal of (or
premium, if any), or the interest on, this Security, or for any claim based
hereon or on the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, as such, past,
present or future, of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability, whether at common law, in equity, by any
constitution, statute or otherwise, of incorporators, stockholders, directors
or officers being released by every owner hereof by the acceptance of this
Security and as part of the consideration for the issue hereof, and being
likewise released by the terms of the Indenture; provided however, that nothing
herein or in the Indenture contained shall be taken to prevent recourse to and
the enforcement of the liability, if any, of any stockholder or subscriber to
capital stock of the Company upon or in respect of shares of capital stock not
fully paid.
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<PAGE> 27
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date:
-----------
Dated: Your Signature:
--------------------------------------------
(sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent
Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the
Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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<PAGE> 28
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 205. Securities Issuable in Global Form. If Securities of or within a
series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
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<PAGE> 29
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
Any Global Security issued hereunder, in addition to the provisions
contained in Sections 202 and 203 hereof, shall bear a legend in substantially
the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable
for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Indenture and 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."
Unless otherwise provided as contemplated by Section 301 hereof with
respect to any series of Securities, any Global Security shall provide, in
addition to the provisions set forth in Sections 202 and 203 hereof and the
preceding paragraph, that the Depository will not sell, assign, transfer or
otherwise convey any beneficial interest in such Global Security unless such
beneficial interest is in an amount equal to an authorized denomination for
Securities of such series and that the Depository, by accepting such Global
Security, agrees to be bound by such provision.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
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<PAGE> 30
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the Place of Payment of the Securities of the series;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) the denominations of such Securities if other than
denominations of $1,000 and any integral multiple thereof;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(10) provisions, if any, for the defeasance of Securities of
the series;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on the Securities of the series shall be payable if other than
the currency of the United States, which may be different for principal,
premium, if any, and interest;
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<PAGE> 31
(12) whether the Securities of the series shall be issued in
whole or part in the form of one or more Global Securities and, in such
case, the Depository for such Global Security or Securities, which
Depository shall be, if then required by applicable law or regulation, a
clearing agency registered under the Securities Exchange Act of 1934, as
amended; and
(13) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
Securities of any particular series may be issued at various times. All
Securities of any one series shall be substantially identical except as to
denomination, the terms of redemption, the date on which principal or any
installment of principal is payable, the rate or the method of determining the
rate of interest, and the date from which interest shall accrue, which, as set
forth above, may be determined by the Company from time to time as to
Securities of a series if so provided in or established pursuant to the
authority granted in a Board Resolution or in any such indenture supplemental
hereto, and except as may otherwise be provided in or pursuant to such Board
Resolution and (subject to Section 303) set forth in such Officers'
Certificate, or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional Securities of
such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
If all of the Securities of any series established by action taken
pursuant to a Board Resolution are not issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of each
Security of such series, but an appropriate record of such action shall be
delivered at or prior to the time of issuance of the first Securities of such
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Treasurer or one of its Assistant Treasurers
or its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. To the extent authorized in a Board Resolution and set forth in an
Officers' Certificate or established in or pursuant to a Board Resolution and
established in one or more supplemental indentures, such Company Order may be
electronically transmitted and may provide instructions as to registration of
holders, principal rates of interest, maturity dates and other matters
contemplated by such Board Resolution and Officers' Certificate or supplemental
indenture. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
1001) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, entitled to the benefits of this Indenture
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall be entitled to receive such other opinions in
connection with the issuance of the Securities of any series as it may
reasonably request.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. If all the Securities of
any series are not to be issued at one time, it shall not be necessary to
deliver such Opinion
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of Counsel at the time of issuance of each Security, but such Opinion of
Counsel, with appropriate modifications, may instead be delivered at or prior
to the time of the first issuance of Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or by an Authenticating Agent by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of the definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any particular series and tenor during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of like tenor and of the series of which
such Security is a part, selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of Persons
other than the Depository for such Security or its nominee only if (1) such
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when such Depository is required to be so registered in
order to act as Depository, (2) the Company executes and delivers to the
Trustee a Company Order that such
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Global Security shall be so exchangeable or (3) there shall have occurred and
be continuing an Event of Default or an event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
the Securities. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such
names as such depository shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depository with respect to 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. Unless
otherwise provided as contemplated by Section 301 hereof with respect to any
series of Securities evidenced in whole or in part by a Global Security, the
Depository may not sell, assign, transfer or otherwise convey any beneficial
interest in a Global Security evidencing all or part of the Securities of such
series unless such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its request the Trustee shall authenticate and deliver, a new Security
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security, so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them or any
agent of either 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
Security and of the ownership thereof.
In case any such mutilated, destroyed, lost or stolen Security has
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
The Trustee may authenticate any such Security and deliver the same upon
the written request or authorization of any officer of the Company. Upon the
issuance of any substituted 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 (including the fees and
expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize, the payment of the same (without surrender thereof except in the
case of a mutilated Security) if the applicant for such payment shall furnish
the Company and the Trustee with such security or indemnity as they may require
to save them or any agent of either 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 Security and of the ownership
thereof.
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Every substituted Security issued pursuant to the provisions of this
Section 306 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen 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 Securities of the same series duly
issued hereunder. All 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 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 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Payment
of interest on the Securities of any series that bears interest may be paid by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest shall be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at
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his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depository as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment or against
the requirements of Section 1004(b) shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. All Securities held by the Trustee pending such cancellation shall be
deemed to be delivered for cancellation for all purposes of this Indenture and
the Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously
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authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided by this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to holders of Securities; provided that
any such notice shall state that no representation is made as to the
correctness or accuracy of the CUSIP numbers either as printed on the
Securities or as contained in any notice of redemption or exchange and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption or exchange shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, upon receipt of a
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1005) have
been delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of money sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and Section
1005(e) shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of Article Fifteen and Section 1005(e), all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by Operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of interest upon
any Security of that 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 Security of that series as and when the same shall become
due and payable either at maturity, upon redemption, by delaration or
otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in any series of Securities or in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere included in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series) continued for a period of
90 days after the date on which written notice of such failure, by
registered or certified mail, requiring the Company to remedy the same
and stating that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
Outstanding Securities of that series; provided, however, that such a
default or breach shall not be an Event of Default if it cannot with due
diligence be cured within such 90-day period due to causes beyond the
control of the Company, unless the Company fails to proceed promptly to
cure the same and thereafter prosecute the curing of such default or
breach with diligence and continuity. In the event that such default or
breach cannot be cured within such 90-day period, before the expiration
of such 90-day period the Company shall furnish an Officers' Certificate
to the Trustee to the effect that such default or breach cannot with due
diligence be cured within such 90-day period due to causes beyond the
control of the Company and that the Company has not failed to proceed
promptly to cure the same. Thereafter, from time to time at the request
of the Trustee, the Company shall furnish
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an Officers' Certificate to the effect that the Company is prosecuting
the curing of such default or breach with diligence and continuity; or
(e) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that series)
or under any mortgage, under which there may be issued or by which there
may be secured or evidenced any indebtedness for money borrowed by the
Company (including this Indenture) whether such indebtedness now exists
or shall hereafter be created, which default shall have resulted in such
indebtedness becoming, or being declared, due and payable prior to the
date on which the same would otherwise have become due and payable, if
the amount of such indebtedness which shall have matured or shall have
become accelerated as a result of such default is in excess of
$10,000,000 and such acceleration shall not be rescinded or annulled
within 30 days after written notice thereof shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series specifying
such default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default", hereunder; provided, however, that if, prior to a declaration
of acceleration of the maturity of the Securities of that series or the
entry of judgment in favor of the Trustee in a suit pursuant to Section
503, such default under such bond, debenture, note, other evidence of
indebtedness or mortgage shall be remedied or cured by the Company or
waived by the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part
of either the Trustee of any of the Holders of Securities; and provided
further that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be charged with knowledge of any such default unless
either (a) a Responsible Officer of the Trustee assigned to its
corporate trust department shall, as such officer, have actual knowledge
of such default or (b) the Trustee shall have received written notice
from the Company, any Holder, or the holder of any such indebtedness or
from the trustee under any such bond, debenture, note, other evidence of
indebtedness or mortgage; or
(f) if the Company, the Partnership, SOLP or Oryx U.K. Energy
shall institute proceedings to be adjudicated a bankrupt or insolvent or
for an order for relief under the Federal Bankruptcy Code, or shall
consent to the filing of a bankruptcy or insolvency proceeding against
it, or shall file a petition or answer or consent seeking relief under
the Federal Bankruptcy Act, the Federal Bankruptcy Code, or Title 11 of
the United States Code, as now constituted or as amended, or any other
applicable Federal or state bankruptcy or other similar law, or shall
consent to the institution of proceedings thereunder or to the filing of
any such petition, or shall consent to the appointment or taking
possession of a receiver or liquidator or trustee or custodian or
assignee in bankruptcy or insolvency of it or of all or a major part of
its property, or shall make an assignment for the benefit of its
creditors, or shall admit in writing its inability to pay
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its debts generally as they become due, or the taking of corporate
action by the Company or Oryx U.K. Energy, or partnership action by the
Partnership or SOLP, in furtherance of any such action; or
(g) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Partnership, SOLP or Oryx U.K. Energy, or adjudging the Company, the
Partnership, SOLP or Oryx U.K. Energy a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company,
the Partnership, SOLP or Oryx U.K. Energy under the Federal Bankruptcy
Act, the Federal Bankruptcy Code, or Title 11 of the United States Code,
as now constituted or as amended or any other applicable Federal or
state bankruptcy or other similar law, and such decree or order shall
have continued undischarged or unstayed for a period of 60 days; or the
entry of a decree or order by a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
custodian or assignee in bankruptcy or insolvency of the Company, the
Partnership, SOLP or Oryx U.K. Energy or of all or a major part of the
property of the Company, the Partnership, SOLP or Oryx U.K. Energy or
for the winding up or liquidation of the affairs of any of them and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(h) any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such Notice of Default, which record date shall be at the close of business
on the day the Trustee receives such Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such Notice of Default, whether or not such Holders remain
Holders after such record date; provided, that unless Holders of at least 10%
in principal amount of the Outstanding Securities of such series, or their
proxies, shall have joined in such Notice of Default prior to the day which is
90 days after such record date, such Notice of Default shall automatically and
without further action by any Holder be canceled and of no further effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
the Securities of that series to be due and payable immediately, by a notice in
writing, by certified or registered
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mail, to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount, all obligations of
the Company in respect of the payment of principal of the Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article Five provided, the Holders of a majority in principal amount of
the Outstanding Securities of that Series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series;
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
of a series all or part of which is represented by a Global Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that unless
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such declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage having
joined in such notice prior to the day which is 90 days after such record date,
such declaration of acceleration, or rescission and annulment, as the case may
be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission or annulment
thereof, as the case may be, which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security of a particular series when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of a particular series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of a particular series, the whole amount then due
and payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a particular series or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation of
the Trustee, its agents and its counsel) and of the Holders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607 other than any such
compensation, expenses, disbursements or advances which are attributable to the
Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
of a particular series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of such series in respect of which such judgment has been
recovered.
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SECTION 506. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor trustee under Section 607;
SECOND: Subject to the provisions of Article Fifteen, to the
payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Securities of a particular series
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series
for principal (and premium, if any) and interest, respectively; and
THIRD: Subject to the provisions of Article Fifteen, to the
payment of the remainder, if any, to whomsoever may be lawfully entitled
thereto, or as a court of competent jurisdiction may direct.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to Holders under this Section 506.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended, and being expressly covenanted by the Holder
and the Trustee, that no one or more of such Holders shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holders,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Accept Principal, Premium, and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
of a particular series to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default of such series or any other series or any acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice. whether or not such Holders remain Holders after such record date;
provided, that unless Holders of a majority in principal amount of the
Outstanding Securities of such series shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee 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 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) With respect to Securities of any series, in case an Event of
Default with respect to the Securities of such series has occurred and is
continuing, 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Securities
of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities
of such series, determined as provided in and subject to Section 512,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 90 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) 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 or
direction of any of the Holders of Securities of any series pursuant to
this Indenture, unless such Holders shall have offered
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to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(e) 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,
approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Securities of any series; provided,
however; that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the Security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
satisfactory to the Trustee against such costs, expenses or liabilities
as a condition to so proceeding;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(g) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter is to be proved or
established prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities of any
series. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of any Securities or the proceeds
thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would had if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Subject to the provisions of Section 1404, 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. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel not regularly in its employ), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee or any
predecessor Trustee, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section 607, the Trustee shall have a lien prior to the Securities of a
particular series upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on such Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(e) or (f) occurs, the expenses and
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
The Company's obligation to compensate the Trustee and to pay and
reimburse the Trustee for such expenses, disbursements and advances pursuant to
the provisions of this Section 607 shall not be subordinate to the payment of
Senior Debt pursuant to Article Fifteen.
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SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and
additional paid-in capital and retained earnings of at least $75,000,000
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at lease annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and additional paid-in capital
and retained earnings of such corporation shall be deemed to be its combined
capital and additional paid-in capital and retained earnings as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with
respect to Securities of any series after written request therefore by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
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(3) the Trustee shall become incapable of acting with respect
to Securities of any series or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
Successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security 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 appointment of a successor Trustee with respect
to the Securities of such a series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice by first-class mail, postage prepaid, to all Holders
of Securities of such series as their names and addressees appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver
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to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trust and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such Successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee upon payment of its charges shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article Six.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If any when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
As long as any Securities of a series remain Outstanding, upon a Company
Request, there shall be an authenticating agent (the "Authenticating Agent")
appointed, for such period as the Company shall elect, by the Trustee for such
series of Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of each series of
Securities for which it is serving as Trustee. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee. Wherever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee for
such series or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
for such series by an Authenticating Agent for such series and a certificate of
authentication executed on behalf of such Trustee by such Authenticating Agent
except that only the Trustee may authenticate Securities upon original issuance
and pursuant to Section 306 hereof. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporation trust powers, having a combined capital and surplus of at
least $10,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
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Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee for such series or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the
applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the Provisions of this Section with respect to one or more of
all series of Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of the Securities of such series in
the manner and to the extent provided in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the provisions of Section 607. The Authenticating Agent for
the Securities of any series shall have no responsibility or liability for any
action taken by it as such without negligence or misconduct on its part at the
direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture:
Dated:
By: IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By: ,
--------------------------------
As Authenticating Agent
By: ,
--------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Securities of each series
(1) semi-annually, not more than 15 days after the Regular
Record Date for the payment of interest in respect of the Securities of
such series, and on dates to be determined pursuant to Section 301 with
respect to Securities of any series which do not bear interest, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of such Series as of a date not more than 15
days prior to the time such information is furnished, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided that so long as the Trustee is the Security Registrar, the Company
will not be required to furnish such list.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as ("applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that
each such applicant has owned a 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 with respect to their
rights under this indenture or under the 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
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in
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accordance with Section 702(a), 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 whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) 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 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 interest of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement 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, the Commission
shall find, after notice and opportunity for bearing, 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 such Holders 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) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after September 15 of each year commencing with the
year 1998, the Trustee shall transmit by mail to all Holders of Securities of
any series such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the time
and in the manner provided pursuant thereto.
(b) 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 any
Securities of such series are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange.
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SECTION 704. Reports by the Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as amy be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Company May Consolidate, Etc., On Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of all or substantially all the property of the Company to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same: provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, sale or conveyance of or by
the Company, other than a consolidation or merger in which the Company is the
continuing corporation, the due and punctual payment of the principal of, and
premium, if any, and interest on, all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company,
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee by the corporation (if other
than the Company) formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall have acquired such
property.
SECTION 802. Successor Corporation to be Substituted.
In case of any consolidation, merger, sale or conveyance of or by the
Company referred to in Section 801 and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Securities and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party
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of the first part, and in the event of any such sale or conveyance, the Company
(which term shall for this purpose mean the corporation named as the "Company"
in the first paragraph of this Indenture or any successor corporation which
shall theretofore become such in the manner described in Section 801) shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated. Such successor corporation
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 Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such 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
Securities thereafter to be issued as may be appropriate.
SECTION 803. Opinion of Counsel and Officers' Certificate to be Given Trustee.
The Trustee, subject to Sections 601 and 602, shall receive an Opinion
of Counsel and Officers Certificate as conclusive evidence that any such
consolidation, merger, sale or conveyance and any such assumption complies with
the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes.
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(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities, or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default; or
(4) to add to, change or eliminate any of the provisions of
this Indenture, in respect of one or more series of Securities, provided
that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(5) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(8) to add to, change or eliminate any of the provisions of
Article Fifteen in respect of one or more series of Securities,
including Outstanding Securities, provided that any such addition,
change, or elimination shall not adversely affect the interests of
Outstanding Securities of any series in any material respect;
(9) subject to Article Fifteen, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Securities, any
property or assets; or
(10) to provide for uncertificated Securities in addition to or
in place of Certificated Securities.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section
513 or 1007 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7); or
(4) modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to the Holders
of the Securities.
(5) make any change in Section 508 or in the foregoing
amendment and waiver provisions, or modify the percentage mentioned in
Section 513.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series or which modifies the rights of the
Holders of Securities of such series with respect to
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such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
In connection with any amendment or supplement authorized pursuant to
this Article, the Trustee may receive, at its request, an Officers' Certificate
to the effect that no Event of Default will result from the execution thereof,
which Officers' Certificate, together with the Opinion of Counsel referred to
in the immediately preceding sentence, will serve as conclusive evidence that
any amendment or supplement executed pursuant to this Article complies with the
applicable provisions of this Indenture.
In the case of any supplemental indenture which establishes the form or
terms of Securities of any series as permitted by Sections 201 or 301, the
Opinion of Counsel shall further state that (a) the terms of such Securities
have been established in conformity with the provisions of this Indenture; (b)
the supplemental indenture and this Indenture as modified thereby each
constitute a valid and legally binding obligation of the Company, enforceable
in accordance with its terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles; (c) the
Securities when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, entitled to the benefits
of this Indenture, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and (d) such other matters
as the Trustee may reasonably request.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this
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Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay or
cause to be paid, for the benefit of the Holders of each series of Securities,
the principal of and premium, if any, and interest on Securities of that series
in accordance with the terms of the Securities and this Indenture at the time
and place and in the manner provided in the Securities only to or upon the
written order of the registered holders thereof determined, in the case of
interest payments, as provided in Sections 305 and 307. Each installment of
interest on the Securities may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto.
SECTION 1002. Offices for Notices and Payments.
The Company covenants and agrees that, so long as any of the Securities
remain outstanding, it will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Securities may be presented for
payment, where the Securities may be presented for registration of transfer or
exchange as in this indenture provided and where notices and demands to or upon
the Company in respect of the Securities or of this Indenture may be served.
The Company will give to the Trustee written notice of the location of such
office or agency and of any change of location thereof. In case the Company
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the
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location thereof, presentations and demands may be made and notices may be
served at the principal office of the Trustee.
SECTION 1003. Incurrence of Layered Indebtedness.
The Company will not incur any indebtedness which is subordinated or
junior in right of payment to any Senior Debt unless such indebtedness
constitutes indebtedness which is junior to, or pari passu with, the Securities
in right of payment.
SECTION 1004. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 610(a) successor
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 1005. Provision as to Paying Agent.
(a) 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 Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1005;
(l) that it will hold all sums held by it as such Paying Agent
for the payment of the principal of and premium, if any, or interest on
the Securities (whether such sums have been paid to it by the Company or
by any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities
(2) that it will give the Trustee notice of any default by the
Company (or by any other obligor on the Securities) in the making of any
payment of the principal of and premium, if any, or interest on the
Securities when the same shall be due and payable; and
(3) that at any time during the continuance of any such
default, upon the written request of the Trustee, it will forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of and premium, if any, or interest on
the Securities, deposit with a Paying Agent a sum sufficient to pay such
principal and premium, if any, or interest so becoming due, such sum to be held
in trust for the benefit of the Holders of the Securities, and (unless such
Paying Agent is the Trustee) the Company will notify the Trustee of its action
or failure so to act.
(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 Securities, set aside, segregate and
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hold in trust for the benefit of the Holders of the Securities a sum sufficient
to pay such principal and premium, if any or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by the
Company (or by any other obligor under the Securities) to make any payment of
the principal of and premium, if any, or interest on the Securities when the
same shall become due and payable.
(c) Anything in this Section 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, such sums to be held by the Trustee upon the trusts
herein contained.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
Sections 401 and 402.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remained unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1006. Certificate to Trustee.
The Company will deliver to the Trustee on or before April 30 in each
year (beginning with ____) an Officers' Certificate stating whether or not to
the best knowledge of the Signers thereof the Company is in default in the
performance or Observance of any of the terms and provisions of this Article
Ten and, if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which the signers have knowledge.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 801, with respect to the Securities
of any series if before the time for such compliance the Holders of at least 66
2/3% in principal amount of the Outstanding
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Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal is payable or different rates of
interest, or different methods by which interest may be determined or have any
other different tenor or terms, then the Company may, by written notice to the
Trustee, direct that the Securities of such series to be redeemed shall be
selected from among the groups of such Securities having specified tenor or
terms and the Trustee shall thereafter select the particular Securities to be
redeemed in the manner set forth in the preceding paragraph from among the
group of such Securities so specified.
For all purpose of this Indenture, unless the content otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed.
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice of redemption that is mailed in the manner provided in this
Section and Section 106 to the Holders of Securities shall be conclusively
presumed to have been duly given whether or not such Holder receives such
notice.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1005) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any
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authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities or at the election of the Holders pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating that such Securities have not previously
been so credited
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and will also deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Securities, or any part thereof; or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any predecessor or successor
corporation), either directly or through the Company (or any such predecessor
or successor corporation), 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 agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or
any such predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants,
promises or agreement contained in this Indenture or in any of the Securities
or to be implied here from or therefrom; and that any such personal liability
is hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of Securities;
provided, however, that nothing herein or in the Securities contained shall be
taken to prevent recourse to and the enforcement of the liability, if any, of
any stockholder or subscriber to capital stock upon or in respect of the shares
of capital stock not fully paid.
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ARTICLE FOURTEEN
DEFEASANCE
SECTION 1401. Applicability of Article.
If, pursuant to Section 301, provision is made for the defeasance of
Securities of any series, then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 301 for Securities
of such series.
SECTION 1402. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.
At the Company's option indicated by notice to the Trustee, either (a)
the Company shall be deemed to have been Discharged (as defined below) from its
obligations with respect to Securities of any series on the 91st day after the
applicable conditions set forth below have been satisfied or (b) the Company
shall cease to be subject to the provisions of Section 301(d) with respect to
Securities of any series at any time after the applicable conditions set forth
below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (as defined below) which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion with respect to (ii) and (iii) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including any mandatory sinking
fund payments) of, and premium, if any, and interest on, the Outstanding
Securities of such series on the dates such installments of interest,
premium or principal are due;
(2) if the Securities of such series are then listed on the
New York Stock Exchange, and if the Company has elected to be deemed
Discharged from its obligations with respect to any series of Securities
pursuant to option (a) above in this paragraph, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this Section would not cause such
Securities to be delisted; and
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its
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option under this Section 1402 and will be subject to Federal income tax
on the same amounts and in the same manner and at the same times as
would have been the case if such option had not been exercised, or
deliver a ruling to that effect received from or published by the
Internal Revenue Service.
(4) The Company shall have delivered to the Trustee an Opinion
of Counsel, subject to certain customary qualifications to the effect
that (a) the funds so deposited will not be subject to any rights of any
other holders of debt of the Company; (b) the funds so deposited will
not be subject to avoidance under applicable bankruptcy laws and (c) the
trust resulting from the deposit does not constitute or is qualified as,
a regulated investment company under the Investment Company Act of 1940.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging the same).
"U.S. Government Obligations" means securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
SECTION 1403. Survival of Company's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Sections 1401 or 1402, the Company's obligations in Sections 304, 305, 306,
607, 906 and 1002, however, shall survive until the Securities are no longer
outstanding.
SECTION 1404. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 1401 and 1402. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
and interest on the Securities of the series as to which the Company seeks
termination of its obligations.
SECTION 1405. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal (premium, if any)
or interest on any Security that remains unclaimed for two years after such
payment is due, unless otherwise provided by law; 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, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such
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money remained unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Thereafter, the Holder of such Security shall as an unsecured creditor look
only to the Company for payment thereof.
SECTION 1406. Reinstatement.
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 1404 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 Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1404 until
such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 1404.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Agreement of Subordination.
The Company covenants and agrees, and each holder of Securities issued
hereunder by his acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Fifteen;
and each Person holding any Security, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest on all
Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Debt, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 1502. Payments to Securityholders.
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior Debt
continuing beyond the period of grace, if any, specified in the instrument or
lease evidencing such Senior Debt, unless and until such default shall have
been cured or waived or shall have ceased to exist, and in the event that the
maturity of any Senior Debt has been accelerated because of a default, then no
payment shall be made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or interest on
the Securities, except sinking fund
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payments made by the acquisition of Securities under Section 1202 prior to the
happening of such default and payments made pursuant to this Article Fifteen
hereof from monies deposited with the Trustee pursuant thereto prior to the
happening of such default.
During the continuance of any other event of default with respect to
Senior Debt for which maturity may be accelerated immediately, upon receipt by
the Trustee of written notice from the trustee or other representative for the
holders of such Senior Debt, no payment which would be prohibited if any Senior
Debt has not been paid (as set out in the immediately preceding paragraph) may
be made by or on behalf of the Company upon or in respect of the Securities for
a period commencing on the date of receipt of such notice and ending 90 days
thereafter (unless such period shall be terminated by written notice to the
Trustee from such trustee or other representative or such holders); however, if
the maturity of any such Senior Debt is not accelerated within 90 days
following the due date of payments prevented by such event of default and
notice, the Company may resume payments on the Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such payment is prohibited by the
preceding paragraphs of this Section 1502, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Senior Debt that such prohibited
payment has been made, the holders of the Senior Debt (or their representative
or representatives or a trustee) notify the Trustee of the amounts then due and
owing on the Senior Debt, if any, and only the amounts specified in such notice
to the Trustee shall be paid to the holders of Senior Debt.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution-or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Debt shall first be paid in full, or payment thereof provided for in
money or money's worth in accordance with its terms, before any payment is made
on account of the principal (and premium, if any) or interest on the Securities
(except payments made pursuant to Article Four hereof from monies deposited
with the Trustee pursuant thereto prior to the happening of such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or
winding-up or liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the holders of the Securities or the
Trustee would be entitled, except for the provisions of this Article Fifteen,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Debt (pro rata to such holders on the basis of the respective amounts of Senior
Debt held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
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indenture pursuant to which any instruments evidencing any Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Debt in full, in money or money's worth, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Debt,
before any payment or distribution is made to the holders of the Securities or
to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Securities before all Senior Debt is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Debt or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Debt may have
been issued, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Debt remaining unpaid to
the extent necessary to pay all Senior Debt in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Debt.
For purposes of this Article Fifteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fifteen with respect to the Securities to the payment of all Senior
Debt which may at the time be outstanding; provided that (i) the Senior Debt is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Debt (other
than leases) and of leases which are assumed are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company into, another corporation or
the liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1502 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight hereof. Nothing in this Section
1502 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
SECTION 1503. Subrogation of Securities.
Subject to the payment in full of all Senior Debt, the rights of the
holders of the Securities shall be subrogated to the rights of the holders of
Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt of any cash, property or securities to which the
holders of the Securities or the Trustee
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would be entitled except for the provisions of this Article Fifteen, and no
payment over pursuant to the provisions of this Article Fifteen, to or for the
benefit of the holders of Senior Debt by holders of the Securities or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt. It is understood that the
provisions of this Article Fifteen are and are intended solely for the purpose
of defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt, and the holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Securities and creditors of the Company
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Fifteen of the holders of
Senior Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article Fifteen, the Trustee, subject to the provisions of Section 601,
and the holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee
or to the holders of the Securities, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fifteen.
SECTION 1504. Authorization by Securityholders.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1505. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen or any other provision of this Indenture,
- 72 -
<PAGE> 80
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee
in respect of the Securities pursuant to the provisions of this Article
Fifteen, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided that if on a date not fewer than
three business days prior to the date upon which by the terms hereof any such
monies may become due and payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 1505, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth, nothing
shall prevent any payment by the Company or the Trustee to the Securityholders
of monies in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Eleven or Section 401 hereof
prior to the receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days before the
redemption date.
The Trustee, subject to the provisions of Section 601, shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of Senior Debt or a
trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Fifteen, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1506. Trustee's Relation to Senior Debt.
The Trustee, in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Debt at any
time held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article
- 73 -
<PAGE> 81
Fifteen, and no implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
and, subject to the provisions of Section 601, the Trustee shall not be liable
to any holder of Senior Debt if it shall pay over or deliver to holders of
Securities, the Company or any other Person money or assets to which any holder
of Senior Debt shall be entitled by virtue of this Article Fifteen or
otherwise.
SECTION 1507. No Impairment of Subordination.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the holders of the Securities, without
incurring responsibility to the holders of the Securities and without impairing
or releasing the subordination provided in this Article Fifteen or the
obligations hereunder of the holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 1508. Acceleration of Payment of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may not pay the Securities until 30 days after the
acceleration occurs (if any Senior Debt remains outstanding) and thereafter may
pay the Securities only if this Indenture otherwise permits the payment at that
time.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
- 74 -
<PAGE> 82
SECTION 1602. Official Acts by Successor.
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 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 the time be
the lawful sole successor of the Company.
SECTION 1603. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities on the company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee) to Oryx Energy
Company, 13155 Noel Road, Dallas, Texas 75240-5067. Attention: Treasurer.
Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the Principal Office of the Trustee, which office is, at
the date as of which this Indenture is dated, located at IBJ Schroder Bank &
Trust Company, One State Street, 11th Floor, New York, NY 10004, Attention:
Corporate Trust Administration.
SECTION 1604. Evidence of Compliance with Conditions Precedent; Certificates
to Trustee.
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,
if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
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 statement or opinion 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 1605. Third Party Beneficiaries
Holders of Senior Debt of the Company are third party beneficiaries of,
and any of them (or their Representative) shall have the right to enforce the
provisions of this Indenture that benefit such holders.
- 75 -
<PAGE> 83
SECTION 1606. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
(SEAL) ORYX ENERGY COMPANY
By:
---------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY
(SEAL) As Trustee
By:
---------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title: Assistant Secretary
- 76 -
<PAGE> 84
STATE OF TEXAS )
COUNTY OF DALLAS )ss.:
On the day of , 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is ________________________ ORYX ENERGY COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------
Notary Public, State of Texas
(NOTARIAL SEAL) My Commission Expires
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the day of , 1996, before me personally came
____________________ to me known, who, being by me duly sworn, did depose and
say that he is a Vice President of , one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
Notary Public, State of New York
No.
Qualified in Queens County
Certificate filed in New York County
Commission Expires
(NOTARIAL SEAL)
- 77 -
<PAGE> 1
EXHIBIT 5
August 11, 1997
Oryx Energy Company
13155 Noel Road
Dallas, Texas 75240-5067
Ladies and Gentlemen:
We have acted as counsel to Oryx Energy Company (the "Company")
in connection with the Company's Registration Statement on Form S-3 (the
"Registration Statement") being filed with Securities and Exchange Commission
under the Securities Act of 1933, as amended, relating to the contemplated
issuance by the Company from time to time of its Debt Securities, Common Stock
and Preferred Stock with an aggregate initial offering price of up to
$500,000,000 (collectively, the "Securities"). The Debt Securities are to be
issued pursuant to (i) a Senior Indenture dated as of September 18, 1988, as
amended by the First Supplemental Indenture dated as of April 1, 1991, by and
between the Company and The Bank of New York, as Trustee (as further amended or
supplemented, the "Senior Indenture"), (ii) a Senior Subordinated Indenture to
be entered into between the Company and IBJ Schroder Bank & Trust Company, as
Trustee (as amended or supplemented, the "Senior Subordinated Indenture") or
(iii) a Subordinated Indenture to be entered into between the Company and Bank
of Montreal Trust Company, as Trustee (as amended or supplemented, the
"Subordinated Indenture").
As such counsel, we have examined and are familiar with the
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate documents of the Company, certificates of public officials and
certificates of officers of the Company and such other instruments and records
as we have deemed necessary or appropriate for the purpose of rendering this
opinion. Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to such terms in the Registration Statement.
In our examination, we have assumed the authenticity of all
documents submitted to us as originals, the signature of all parties (other
than the Company) to documents, the legal
<PAGE> 2
Oryx Energy Company
August 11, 1997
Page 2
right and power of all parties (other than the Company) to enter into and
execute the documents to which they are a party and to consummate the
transactions contemplated therein, and the conformity to original documents of
all documents submitted to us as certified or photostatic copies.
Based on the foregoing and subject to the qualifications set
forth herein, we are of the opinion that:
1. When the specific terms of a particular Debt Security have
been duly authorized and established in accordance with the Senior
Indenture, the Senior Subordinated Indenture or the Subordinated
Indenture, as the case may be, and such Debt Security has been duly
authorized and executed, authenticated, issued and delivered in
accordance with the Senior Indenture, the Senior Subordinated Indenture
or the Subordinated Indenture, as the case may be, against payment
therefor in accordance with the applicable underwriting or other
agreement, such Debt Security will constitute the valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject (a) to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and (b) as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
2. The shares of Common Stock of the Company, and the shares
of Preferred Stock of the Company, when such shares of Common Stock or
Preferred Stock, as the case may be, have been duly authorized, issued
and delivered against payment therefor in accordance with the applicable
underwriting or other agreement, will be validly issued, fully paid and
non-assessable.
This law firm is a registered limited liability partnership
organized under the laws of the State of Texas. Our opinion relates only to the
laws of the State of New York and the Federal law of the United States of
America. We express no opinion as to the law of any other jurisdiction.
This opinion is limited to the matters stated herein, and no
opinion is implied or may be inferred beyond the matters expressly stated. We
assume herein no obligation, and hereby disclaim any obligation, to make any
inquiry after the date hereof or to advise you of any future changes in the
forgoing or of any facts or circumstances that may hereafter come to our
attention. Subject to the forgoing sentence, this opinion letter is solely for
your benefit and no other persons shall be entitled to rely upon the opinions
herein expressed.
<PAGE> 3
Oryx Energy Company
August 11, 1997
Page 3
In connection with our opinions expressed above, we have assumed
that, at or prior to the time of the delivery of any securities of the Company,
the Senior Subordinated Indenture or the Subordinated Indenture will have been
duly authorized, executed and delivered by the parties thereto (in the case of
Debt Securities to be issued thereunder), the authorization of such securities
will be applicable to such securities, will not have been modified or rescinded
and there will not have occurred any change in law affecting the validity or
enforceability of such securities. We have also assumed that none of the terms
of any securities of the Company to be established subsequent to the date
hereof nor the issuance and delivery of such securities, nor the compliance by
the Company with the terms of such securities, will violate any applicable law
or will result in a violation of any provision of any instrument or agreement
then binding upon the Company, or any restriction imposed by any court or
governmental body having jurisdiction over the Company.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement, to the reference to our
name in the Prospectus and to the reference to our firm under the caption Legal
Matters in the Registration Statement.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
--------------------------------------------
AKIN, GUMP, STRAUSS, HAUER
& FELD, L.L.P.
<PAGE> 1
EXHIBIT 12
ORYX ENERGY COMPANY
COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDEND
REQUIREMENTS - UNAUDITED (a)
(Millions of Dollars)
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30 Ended June 30
1997 1997
------------- -------------
<S> <C> <C>
RATIO OF EARNINGS TO FIXED CHARGES:
Fixed Charges:
Consolidated interest cost and debt expense ......... $ 28 $ 55
Interest allocable to rental expense (b) ............ 2 3
---- ----
Total ............................................. $ 30 $ 58
==== ====
Earnings:
Consolidated income before provision for income
taxes ............................................. $ 35 $132
Fixed charges ....................................... 30 58
Interest capitalized ................................ (3) (8)
Amortization of previously capitalized interest ..... 1 2
---- ----
Total ............................................. $ 63 $184
==== ====
Ratio of Earnings to Fixed Charges .................... 2.10 3.17
==== ====
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS:
Fixed Charges:
Consolidated interest cost and debt expense ......... $ 28 $ 55
Preferred stock dividend requirements ............... - -
Interest allocable to rental expense (b) ............ 2 3
---- ----
Total ............................................. $ 30 $ 58
==== ====
Earnings:
Consolidated income before provision for income
taxes ............................................. $ 35 $132
Fixed charges ....................................... 30 58
Interest capitalized ................................ (3) (8)
Amortization of previously capitalized interest ..... 1 2
---- ----
Total ............................................. $ 63 $184
==== ====
Ratio of Earnings to Fixed Charges .................... 2.10 3.17
==== ====
</TABLE>
- ---------------
(a) The consolidated financial statements of Oryx Energy Company include the
accounts of all subsidiaries (more than 50 percent owned and/or
controlled).
(b) Represents one-third of total operating lease rental expense which is
that portion deemed to be interest.
15
<PAGE> 1
EXHIBIT 15
[COOPERS & LYBRAND LETTERHEAD]
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
ATTN: Document Control
Re: Oryx Energy Company Registration of Form S-3
We are aware that our report dated July 29, 1997 and May 2, 1997 on our reviews
of the interim financial information of Oryx Energy Company and its
Subsidiaries for the three and six month periods ended June 30, 1997 and 1996,
and the three month periods ended March 31, 1997 and 1996, respectively,
included in the Company's Quarterly Reports on Form 10-Q for the quarters then
ended are incorporated by reference in this Registration Statement on Form S-3.
Pursuant to Rule 436(c) under the Securities Act of 1933, these reports should
not be considered a part of the Registration Statement prepared or certified by
us within the meaning of Sections 7 and 11 of that Act.
/s/ COOPERS & LYBRAND L.L.P.
Dallas, Texas
August 8, 1997
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated February 19, 1997 on our audit of the consolidated
financial statements of Oryx Energy Company and its Subsidiaries, included in
their Annual Report on Form 10-K for the year ended December 31, 1996. We also
consent to the reference to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Dallas, Texas
August 8, 1997
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Robert L. Keiser and Edward W.
Moneypenny (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities with ORYX
ENERGY COMPANY, to sign the Registration Statement on Form S-3 pursuant to the
Securities Act of 1933 relating to the sale by the Company from time to time in
one or more series its unsecured debt securities, preferred stock and common
stock in an aggregate amount not to exceed $500,000,000 and any or all
amendments thereto and to file the same, with all exhibits thereto and other
documents in connection therewith with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT L. KEISER Chairman of the Board, February 6, 1997
- ----------------------------- Chief Executive Officer,
(Robert L. Keiser) President, and Director
(principal executive officer)
/s/ JERRY W. BOX Executive Vice President, February 6, 1997
- ----------------------------- Chief Operating Officer,
(Jerry W. Box) and Director
/s/ EDWARD W. MONEYPENNEY Executive Vice President, February 6, 1997
- ----------------------------- Finance, Chief Financial
(Edward W. Moneypenney) Officer, and Director
(principal financial officer)
/s/ ROBERT L. THOMPSON Comptroller and Corporate February 6, 1997
- ----------------------------- Planning Director
(Robert L. Thompson) (principal accounting officer)
</TABLE>
1
<PAGE> 2
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM E. BRADFORD Director February 6, 1997
- -----------------------------
(William E. Bradford)
/s/ SYLVIA A. EARLE Director February 6, 1997
- -----------------------------
(Sylvia A. Earle)
/s/ DAVID C. GENEVER-WATLING Director February 6, 1997
- -----------------------------
(David C. Genever-Watling)
/s/ ROBERT B. GILL Director February 6, 1997
- -----------------------------
(Robert B. Gill)
/s/ DAVID S. HOLLINGSWORTH Director February 6, 1997
- -----------------------------
(David S. Hollingsworth)
/s/ CHARLES H. PISTOR, JR. Director February 6, 1997
- -----------------------------
(Charles H. Pistor, Jr.)
/s/ PAUL R. SEEGERS Director February 6, 1997
- -----------------------------
(Paul R. Seegers)
/s/ IAN L. WHITE-THOMSON Director February 6, 1997
- -----------------------------
(Ian L. White-Thomson)
</TABLE>
2
<PAGE> 1
EXHIBIT 25.1
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------------
ORYX ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Delaware 23-1743284
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
13155 Noel Road
Dallas, Texas 75240-5067
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
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
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 7th day of August, 1997.
THE BANK OF NEW YORK
By: /s/ THOMAS E. TABOR
----------------------------
Name: THOMAS E. TABOR
Title: ASSISTANT TREASURER
-4-
<PAGE> 5
EXHIBIT 7
================================================================================
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 8,249,820
Interest-bearing balances .......................................... 1,031,026
Securities:
Held-to-maturity securities ........................................ 1,118,463
Available-for-sale securities ...................................... 3,005,838
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,100,281
Loans and lease financing receivables:
Loans and leases, net of unearned income ............. 32,895,077
LESS: Allowance for loan and lease losses ............ 633,877
LESS: Allocated transfer risk reserve ................ 429
Loans and leases, net of unearned income, allowance,
and reserve ...................................................... 32,260,771
Assets held in trading accounts ...................................... 1,715,214
Premises and fixed assets (including capitalized leases) ............. 684,704
Other real estate owned .............................................. 21,738
Investments in unconsolidated subsidiaries and
associated companies ............................................... 195,761
Customers' liability to this bank on acceptances outstanding ......... 1,152,899
Intangible assets .................................................... 683,503
Other assets ......................................................... 1,526,113
-----------
Total assets ......................................................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................................................ $25,614,961
Noninterest-bearing .................................. 10,564,652
Interest-bearing ..................................... 15,050,309
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 15,103,615
Noninterest-bearing .................................. 560,944
Interest-bearing ..................................... 14,542,671
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 2,093,286
Demand notes issued to the U.S. Treasury.............................. 239,354
Trading liabilities .................................................. 1,399,064
Other borrowed money:
With remaining maturity of one year or less ........................ 2,075,092
With remaining maturity of more than one year ...................... 20,679
Bank's liability on acceptances executed and outstanding ............. 1,160,012
Subordinated notes and debentures .................................... 1,014,400
Other liabilities .................................................... 1,840,245
-----------
Total liabilities .................................................... 50,560,708
-----------
EQUITY CAPITAL
Common stock ......................................................... 942,284
Surplus .............................................................. 731,319
Undivided profits and capital reserves ............................... 2,544,303
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... (19,449)
Cumulative foreign currency translation adjustments .................. (13,034)
-----------
Total equity capital ................................................. 4,185,423
-----------
Total liabilities and equity capital ................................. $54,746,131
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
)
Alan R. Griffith )
J. Carter Bacot } Directors
Thomas A. Renyi )
)
================================================================================
<PAGE> 1
EXHIBIT 25.2
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
--------------
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-5375195
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. national bank) Identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
Max Volmar, Vice President
IBJ SCHRODER BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
ORYX ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Delaware 23-1743284
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13155 Noel Road
Dallas, Texas 75240-5067
(Address of principal executive offices) (Zip code)
--------------
Senior Subordinated Debt Securities
(Title of indenture securities)
================================================================================
<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.
New York State Banking Department
Two Rector Street, New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York Second District
33 Liberty Street
New York, New York
(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.
The obligor is not an affiliate of the trustee.
Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
None
<PAGE> 3
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been
a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
None
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
Not Applicable
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been
a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
Not Applicable
Item 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust Company as
amended to date. (See Exhibit 1A to Form T-1, Securities and
Exchange Commission File No. 22-18460).
<PAGE> 4
*2. A copy of the Certificate of Authority of the trustee to
Commence Business (Included in Exhibit 1 above).
*3. A copy of the authorization of the trustee to exercise corporate
trust powers, as amended to date (See Exhibit 4 to Form T-1,
Securities and Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee, as amended to
date (See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
5. Not Applicable
6. The consent of United States institutional trustee required by
Section 321(b) of the Act.
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.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a reference
to the copy of the Exhibit heretofore filed with the Securities and
Exchange Commission, to which there have been no amendments or changes.
<PAGE> 5
NOTE
In answering any item in this Statement of Eligibility which relates to matters
peculiarly within the knowledge of the obligor and its directors or officers,
the trustee has relied upon information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the trustee of
all facts on which to base responsive answers to Item 2, the answer to said
Item are based on incomplete information.
Item 2, may, however, be considered as correct unless amended by an amendment
to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to Items 1, 2 and
16 of this form since to the best knowledge of the trustee, the obligor is not
in default under any indenture under which the applicant is trustee.
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
IBJ Schroder Bank & Trust Company, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 30th day
of July, 1997.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ MAX VOLMAR
---------------------------------
Max Volmar
Vice President
<PAGE> 7
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939, as amended, in connection with the issue by Oryx Energy Company of its
Subordinated Debt Securities, we hereby consent that reports of examinations by
Federal, State, Territorial, or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ MAX VOLMAR
---------------------------------
Max Volmar
Vice President
Dated: July 30, 1997
<PAGE> 8
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
OF NEW YORK, NEW YORK
AND FOREIGN AND DOMESTIC SUBSIDIARIES
REPORT AS OF MARCH 31, 1997
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN THOUSANDS
--------------
<S> <C> <C>
ASSETS
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ....................... $ 37,521
Interest-bearing balances ................................................ $ 325,073
Securities: Held-to-maturity securities .................................... $ 177,447
Available-for-sale securities .................................. $ 47,358
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold and Securities purchased under agreements to resell ... $ 75,273
Loans and lease financing receivables:
Loans and leases, net of unearned income .................... $1,820,213
LESS: Allowance for loan and lease losses ................... $ 58,785
LESS: Allocated transfer risk reserve ....................... $ 0
Loans and leases, net of unearned income, allowance, and reserve ......... $1,761,428
Trading assets held in trading accounts .................................... $ 602
Premises and fixed assets (including capitalized leases) ................... $ 3,817
Other real estate owned .................................................... $ 202
Investments in unconsolidated subsidiaries and associated companies ........ $ 0
Customers' liability to this bank on acceptances outstanding ............... $ 310
Intangible assets .......................................................... $ 0
Other assets ............................................................... $ 74,528
TOTAL ASSETS ............................................................... $2,503,559
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices .......................................................... $ 792,944
Noninterest-bearing .......................................... $ 260,196
Interest-bearing ............................................. $ 394,562
In foreign offices, Edge and Agreement subsidiaries, and IBFs ................ $ 1,149,176
Noninterest-bearing .......................................... $ 13,875
Interest-bearing ............................................. $ 1,135,301
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased and Securities sold under agreements to repurchase ... $ 344,500
Demand notes issued to the U.S. Treasury ....................................... $ 30,000
Trading Liabilities ............................................................ $ 178
Other borrowed money:
a) With a remaining maturity of one year or less ............................. $ 23,037
b) With a remaining maturity of more than one year ........................... $ 4,958
Mortgage indebtedness and obligations under capitalized leases ................. $ 0
Bank's liability on acceptances executed and outstanding ....................... $ 310
Subordinated notes and debentures .............................................. $ 0
Other liabilities .............................................................. $ 71,245
TOTAL LIABILITIES .............................................................. $ 2,278,162
Limited-life preferred stock and related surplus ............................... $ 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................................. $ 0
Common stock ................................................................... $ 29,649
Surplus (exclude all surplus related to preferred stock) ....................... $ 217,008
Undivided profits and capital reserves ......................................... $ (21,223)
Net unrealized gains (losses) on available-for-sale securities ................. $ 37
Cumulative foreign currency translation adjustments ............................ $ 0
TOTAL EQUITY CAPITAL ........................................................... $ 225,397
TOTAL LIABILITIES AND EQUITY CAPITAL ........................................... $ 2,503,559
</TABLE>
<PAGE> 1
EXHIBIT 25.3
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a trustee Pursuant to Section 305(b) ____
BANK OF MONTREAL TRUST COMPANY
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
New York 13-4941093
(JURISDICTION OF INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER
IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
77 Water Street
New York, New York 10005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Mark F. McLaughlin
Bank of Montreal Trust Company
77 Water Street, New York, NY 10005
(212) 701-7602
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------------------
ORYX ENERGY COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
Delaware 23-1743284
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
13155 Noel Road
Dallas, Texas 75240-5067
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
--------------------------------------
Subordinated Debt Securities
(TITLE OF THE INDENTURE SECURITIES)
===============================================================================
<PAGE> 2
- 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.
Federal Reserve Bank of New York
33 Liberty Street, New York N.Y. 10045
State of New York Banking Department
2 Rector Street, New York, N.Y. 10006
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility.
1. Copy of Organization Certificate of Bank of Montreal Trust
Company to transact business and exercise corporate trust
powers; incorporated herein by reference as Exhibit "A" filed
with Form T-1 Statement, Registration No. 33-46118.
2. Copy of the existing By-Laws of Bank of Montreal Trust Company;
incorporated herein by reference as Exhibit "B" filed with Form
T-1 Statement, Registration No. 33-80928.
3. The consent of the Trustee required by Section 321(b) of the
Act; incorporated herein by reference as Exhibit "C" with Form
T-1 Statement, Registration No. 33-46118.
4. A copy of the latest report of condition of Bank of Montreal
Trust Company published pursuant to law or the requirements of
its supervising or examining authority, attached hereto as
Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Bank of Montreal Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New
York, on the 30th day of July, 1997.
BANK OF MONTREAL TRUST COMPANY
By /s/ AMY S. ROBERTS
-----------------------------------
Amy S. Roberts
Assistant Vice President
<PAGE> 3
EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
---------------------------------
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Due From Banks $ 740,801
------------
Investment Securities:
State & Municipal 16,888,571
Other 100
------------
TOTAL SECURITIES 16,888,671
------------
Loans and Advances
Federal Funds Sold 4,300,000
Overdrafts 3,591
------------
TOTAL LOANS AND ADVANCES 4,303,591
------------
Investment in Harris Trust, NY 7,516,776
Premises and Equipment 173,475
Other Assets 2,304,743
------------
9,994,994
------------
TOTAL ASSETS $ 31,928,057
============
LIABILITIES
Trust Deposits $ 8,602,958
Other Liabilities 784,769
------------
TOTAL LIABILITIES 9,387,727
------------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 17,289,810
Equity - Municipal Gain/Loss 28,332
------------
TOTAL CAPITAL ACCOUNTS 22,540,330
------------
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $ 31,928,057
============
</TABLE>
I, Mark F. McLaughlin, Vice President, of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Mark F. McLaughlin
December 31, 1996
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declared that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healey
Steven R. Rothbloom
