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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 Xxxxxxxx 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
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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
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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
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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 Xxxxxxx X. Xxxxxx, 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, Xxxxx &
Xxxx, 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, Xxxxxx & XxXxxx, 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 & Xxxxxxx 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
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change, in the rating accorded any of the Company's securities by
either of Standard & Poor's Ratings Group or Xxxxx'x 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
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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
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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 & Xxxxxxx 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;
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(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.
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(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
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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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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.
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EXHIBIT A
FORM OF OPINION OF
XXXXXXX X. XXXXXX, 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".
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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
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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 0000 Xxx) 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.
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EXHIBIT B
FORM OF OPINION OF
AKIN, GUMP, STRAUSS, XXXXX & XXXX, 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
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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 0000 Xxx) 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
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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,
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EXHIBIT C
FORM OF OPINION OF
MILBANK, TWEED, XXXXXX & XXXXXX
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
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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.
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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
Xxxxxxx X. Xxxxxx, Vice President, General Counsel and Secretary of the
Company, and Akin, Gump, Strauss, Xxxxx & Xxxx, 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,
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21
UNDERWRITING AGREEMENT
[DESCRIPTION OF SECURITIES]
[DATE]
Oryx Energy Company
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
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.
Principal
Amount of
Name Securities
---- ----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $
==========
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, Xxxxxx & XxXxxx 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").
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.
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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: Xxxxxx X. Xxxxxxxxxx
Title: Executive Vice President,
Finance, Chief Financial
Officer and Treasurer
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