1
EXHIBIT 10.2
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BJ SERVICES COMPANY,
AS ISSUER,
THE GUARANTORS NAMED HEREIN,
AS GUARANTORS,
and
BANK OF MONTREAL TRUST COMPANY,
TRUSTEE
INDENTURE
Dated as of February 1, 1996
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$125,000,000
SERIES A AND SERIES B
7% NOTES DUE 2006
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . 1
SECTION 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Other Definitions. . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act . . . . . 7
SECTION 1.04 Rules of Construction. . . . . . . . . . . . . . . . . . . . 8
ARTICLE 2 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.01 Form and Dating. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02 Execution and Authentication. . . . . . . . . . . . . . . . 9
SECTION 2.03 Registrar and Paying Agent. . . . . . . . . . . . . . . . 10
SECTION 2.04 Paying Agent to Hold Money in Trust. . . . . . . . . . . . 10
SECTION 2.05 Holder Lists. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.06 Transfer and Exchange. . . . . . . . . . . . . . . . . . . 11
SECTION 2.07 Replacement Securities. . . . . . . . . . . . . . . . . . 19
SECTION 2.08 Outstanding Securities. . . . . . . . . . . . . . . . . . 19
SECTION 2.09 Treasury Securities. . . . . . . . . . . . . . . . . . . . 20
SECTION 2.10 Temporary Securities. . . . . . . . . . . . . . . . . . . 20
SECTION 2.11 Cancellation. . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.12 Defaulted Interest. . . . . . . . . . . . . . . . . . . . 20
SECTION 2.13 Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 21
ARTICLE 3 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.01 Payment of Securities. . . . . . . . . . . . . . . . . . . 21
SECTION 3.02 Maintenance of Office or Agency. . . . . . . . . . . . . . 21
SECTION 3.03 SEC Reports; Financial Statements. . . . . . . . . . . . . 22
SECTION 3.04 Compliance Certificate. . . . . . . . . . . . . . . . . . 23
SECTION 3.05 Corporate Existence. . . . . . . . . . . . . . . . . . . . 23
SECTION 3.06 Maintenance of Properties. . . . . . . . . . . . . . . . . 23
SECTION 3.07 Payment of Taxes and Other Claims. . . . . . . . . . . . . 24
SECTION 3.08 Waiver of Stay, Extension or Usury Laws. . . . . . . . . . 24
SECTION 3.09 Limitation on Sale/Leaseback Transactions. . . . . . . . . 24
SECTION 3.10 Limitation on Liens. . . . . . . . . . . . . . . . . . . . 25
SECTION 3.11 Registration Rights Agreement. . . . . . . . . . . . . . . 26
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ARTICLE 4 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.01 Limitations on Mergers and Consolidations. . . . . . . . . 27
SECTION 4.02 Successor Corporation Substituted. . . . . . . . . . . . . 27
ARTICLE 5 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . 28
SECTION 5.01 Events of Default. . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.02 Acceleration. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.03 Other Remedies. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.04 Waiver of Existing Defaults. . . . . . . . . . . . . . . . 30
SECTION 5.05 Control by Majority. . . . . . . . . . . . . . . . . . . . 31
SECTION 5.06 Limitations on Suits. . . . . . . . . . . . . . . . . . . 31
SECTION 5.07 Rights of Holders to Receive Payment. . . . . . . . . . . 32
SECTION 5.08 Collection Suit by Trustee. . . . . . . . . . . . . . . . 32
SECTION 5.09 Trustee May File Proofs of Claim. . . . . . . . . . . . . 32
SECTION 5.10 Priorities. . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . . 33
ARTICLE 6 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.01 Duties of Trustee. . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.02 Rights of Trustee. . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03 Individual Rights of Trustee. . . . . . . . . . . . . . . 35
SECTION 6.04 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . 35
SECTION 6.05 Notice of Defaults. . . . . . . . . . . . . . . . . . . . 35
SECTION 6.06 Reports by Trustee to Holders. . . . . . . . . . . . . . . 35
SECTION 6.07 Compensation and Indemnity. . . . . . . . . . . . . . . . 36
SECTION 6.08 Replacement of Trustee. . . . . . . . . . . . . . . . . . 37
SECTION 6.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . 38
SECTION 6.10 Eligibility; Disqualification. . . . . . . . . . . . . . . 38
SECTION 6.11 Preferential Collection of Claims Against Company. . . . . 38
ARTICLE 7 DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . 39
SECTION 7.01 Termination of Company's Obligations. . . . . . . . . . . 39
SECTION 7.02 Application of Trust Money. . . . . . . . . . . . . . . . 41
SECTION 7.03 Repayment to Company. . . . . . . . . . . . . . . . . . . 41
SECTION 7.04 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 8 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 8.01 Without Consent of Holders. . . . . . . . . . . . . . . . 42
SECTION 8.02 With Consent of Holders. . . . . . . . . . . . . . . . . . 43
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SECTION 8.03 Compliance with Trust Indenture Act. . . . . . . . . . . . 44
SECTION 8.04 Revocation and Effect of Consents. . . . . . . . . . . . . 45
SECTION 8.05 Notation on or Exchange of Securities. . . . . . . . . . . 45
SECTION 8.06 Trustee to Sign Amendments, etc. . . . . . . . . . . . . . 45
ARTICLE 9 GUARANTEES OF SECURITIES . . . . . . . . . . . . . . . . . 46
SECTION 9.01 Unconditional Guarantees. . . . . . . . . . . . . . . . . 46
SECTION 9.02 Limitation of Guarantor's Liability . . . . . . . . . . . 48
SECTION 9.03 Contribution. . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.04 Execution and Delivery of Guarantees. . . . . . . . . . . 48
SECTION 9.05 Addition of Guarantors. . . . . . . . . . . . . . . . . . 49
SECTION 9.06 Release of Guarantee. . . . . . . . . . . . . . . . . . . 49
SECTION 9.07 Consent to Jurisdiction and Service of Process. . . . . . 49
SECTION 9.08 Waiver of Immunity. . . . . . . . . . . . . . . . . . . . 50
SECTION 9.09 Judgment Currency. . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 10 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.01 Trust Indenture Act Controls. . . . . . . . . . . . . . . 51
SECTION 10.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 10.03 Communication by Holders with Other Holders. . . . . . . . 52
SECTION 10.04 Certificate and Opinion as to Conditions Precedent. . . . 52
SECTION 10.05 Statements Required in Certificate or Opinion. . . . . . . 53
SECTION 10.06 Rules by Trustee and Agents. . . . . . . . . . . . . . . . 53
SECTION 10.07 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . 53
SECTION 10.08 No Recourse Against Others. . . . . . . . . . . . . . . . 53
SECTION 10.09 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.10 No Adverse Interpretation of Other Agreements. . . . . . . 54
SECTION 10.11 Successors. . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.12 Severability. . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 10.13 Counterpart Originals. . . . . . . . . . . . . . . . . . . 54
SECTION 10.14 Table of Contents, Headings, etc. . . . . . . . . . . . . 54
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INDENTURE dated as of February 1, 1996 between BJ Services Company, a
Delaware corporation (the "Company"), the Guarantors named herein and Bank of
Montreal Trust Company, a New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 7% Series A
Notes due 2006 (the "Series A Securities") and the Company's 7% Series B Notes
due 2006 (the "Series B Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Adjusted Net Assets" of a Guarantor at any date means the lesser of (x)
the amount by which the fair value of the property of such Guarantor at such
date exceeds the total amount of liabilities, including, without limitation, the
probable amount of contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date) of such
Guarantor at such date, but excluding liabilities under the Guarantee of such
Guarantor, and (y) the amount by which the present fair saleable value of the
assets of such Guarantor at such date exceeds the amount that will be required
to pay the probable liability of such Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guarantor in respect of any obligation of such Subsidiary under the Guarantee of
such Guarantor), excluding debt in respect of the Guarantee of such Guarantor,
as they become absolute and matured.
"Affiliate" of any specified Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For purposes of this definition, "control"
of a Person shall mean 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" shall have meanings correlative to the foregoing. The Trustee may
request and may conclusively rely upon an Officers' Certificate to determine
whether any Person is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"Attributable Indebtedness," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease
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included in such Sale/Leaseback Transaction (including any period for which
such lease has been extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal, state
or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized, with respect to any particular matter, to act
by or on behalf of the Board of Directors of the Company.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" of any Person means and includes any and all shares,
interests, rights to purchase, warrants or options (whether or not currently
exercisable), participations or other equivalents of or interests in (however
designated) the equity (which includes, but is not limited to, common stock,
preferred stock and partnership and joint venture interests) of such Person
(excluding any debt securities that are convertible into, or exchangeable for,
such equity).
"Capitalized Lease Obligation" of any Person means any obligation of
such Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Common Equity" of any Person means and includes all Capital Stock of
such Person that is generally entitled to (i) vote in the election of directors
of such Person, or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"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; provided, however, that for purposes of any
provision contained herein which is required by the TIA, "Company" shall also
mean each Guarantor, if any.
"Consolidated Net Worth" of the Company means the consolidated
stockholders' equity of the Company and its Subsidiaries, as determined in
accordance with GAAP.
"Corporate Trust Office of the Trustee" means the office of the Trustee
in the Borough of Manhattan, The City of New York at which the corporate trust
business of the Trustee shall be principally administered, which office shall
initially be located at the address of the Trustee specified in Section 3.02
hereof and may be located at such other address as the Trustee may give notice
to the Company.
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"Default" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"Definitive Securities" means Securities that are in the form of Exhibit
A attached hereto (but without including the text referred to in footnote 1
thereto).
"Depositary" means, with respect to the Securities issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"Exchange Offer" means the offer by the Company to the Holders of all
outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Securities, in
an aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement" means the registration statement
under the Securities Act relating to the Exchange Offer, including the related
prospectus.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect from time to time.
"Global Security" means a Security that is issued in global form in
the name of Cede & Co. or such other name as may be requested by an authorized
representative of the Depositary, and that contains the paragraph referred to in
footnote 1 and the additional schedule referred to in the form of Security
attached hereto as Exhibit A.
"Guarantor" means (i) each Subsidiary of the Company executing this
Indenture, (ii) each Subsidiary of the Company that becomes a guarantor of the
Securities pursuant to Section 9.05 hereof, (iii) each Subsidiary of the Company
that executes a supplemental indenture
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in which such Subsidiary agrees to be bound by Article 9 hereof and (iv) any
Subsidiary of the Company that is a successor corporation of any Subsidiary of
the Company referred to in clauses (i) through (iii). The term "Guarantor"
shall not include any Subsidiary of the Company referred to in clauses (i)
through (iv) that shall have been released from its obligations under Article 9
pursuant to Section 9.06 hereof.
"Hedging Obligations" of any Person means the net obligations (not the
notional amount) of such Person pursuant to any interest rate swap agreement,
foreign currency exchange agreement, interest rate collar agreement, option or
futures contract or other similar agreement or arrangement relating to interest
rates or foreign exchange rates.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness or obligations of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit and performance bonds issued by such Person in the ordinary course of
business, to the extent not drawn or, to the extent drawn, if such drawing is
reimbursed not later than the third Business Day following demand for
reimbursement, (iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, except trade payables and accrued
expenses incurred in the ordinary course of business, (v) all Capitalized Lease
Obligations of such Person, (vi) all Indebtedness of others secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed by such
Person, (vii) all Indebtedness of others guaranteed by such Person to the extent
of such guarantee and (viii) all Hedging Obligations of such Person.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Initial Purchasers" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, CS First Boston Corporation, BA Securities, Inc. and Chase
Securities, Inc., as initial purchasers in the Offering.
"Interest Payment Date" shall have the meaning assigned to such term in
the Securities.
"Issue Date" means the date on which the Securities are originally
issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in any of The City of New York, Houston, Texas or a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed.
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law, but
excluding agreements to refrain from granting Liens. For the purposes of this
Indenture, the Company or any Subsidiary of the Company shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capitalized
Lease Obligation or other title retention agreement relating to such asset.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Subsidiary of the Company, the aggregate net
proceeds received by the Company or such Subsidiary from such Sale/Leaseback
Transaction after payment of expenses, taxes, commissions and similar amounts
incurred in connection therewith, whether such proceeds are in cash or in
property (valued at the fair market value thereof at the time of receipt, as
determined by the Board of Directors).
"Non-Recourse Indebtedness" means, at any date, the aggregate amount at
such date of Indebtedness of the Company or a Subsidiary of the Company in
respect of which the recourse of the holder of such Indebtedness, whether direct
or indirect and whether contingent or otherwise, is effectively limited to
specified assets, and with respect to which neither the Company nor any of its
Subsidiaries provides any credit support.
"Offering" means the Offering of the Series A Securities pursuant to the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the Company,
dated February 14, 1996, relating to the Offering.
"Officer" means the Chairman of the Board, the President, any Vice
Chairman of the Board, any Vice President, the chief financial officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's chief executive officer, chief
financial officer or chief accounting officer.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. Such counsel may be an employee of or counsel to the
Company, a Guarantor or the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall be subordinated in right of payment to the
Securities.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Registrable Securities" shall have the meaning assigned to such term in
the Registration Rights Agreement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of February 20, 1996, among the Company, the Guarantors
party thereto and the Initial Purchasers.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of the Company, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Subsidiary to such Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities
treated as a single class of Securities. For purposes of this Indenture, the
term "Securities" shall, except where the context otherwise requires, include
the Guarantees.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Security Custodian" means the Trustee, as custodian with respect to the
Securities in global form, or any successor entity thereto.
"Series A Securities" means the Company's 7% Series A Notes due 2006 to
be issued pursuant to this Indenture.
"Series B Securities" means the Company's 7% Series B Notes due 2006 to
be issued pursuant to this Indenture in the Exchange Offer.
"Subsidiary" of any Person means (i) any corporation of which at least a
majority of the aggregate voting power of all classes of the Common Equity is
owned by such Person directly or through one or more other Subsidiaries of such
Person, and (ii) any entity other than a corporation at least a majority of the
Common Equity of which is owned by such Person directly or through one or more
other Subsidiaries of such Person.
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"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the Issue Date.
"Transfer Restricted Securities" means the Registrable Securities under
the Registration Rights Agreement.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged.
SECTION 1.02 Other Definitions.
Defined
in
Term Section
---- -------
"Authorized Agent"............................................................................... 9.07
"Custodian"...................................................................................... 5.01
"DTC"............................................................................................ 2.03
"Event of Default"............................................................................... 5.01
"Funding Guarantor".............................................................................. 9.03
"Guarantees"..................................................................................... 9.01(a)
"Judgment Currency".............................................................................. 9.09
"Non-U.S. Guarantor"............................................................................. 9.07
"Paying Agent"................................................................................... 2.03
"Registrar"...................................................................................... 2.03
"Significant Subsidiary"......................................................................... 5.01
"Successor"...................................................................................... 4.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
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"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and each
Guarantor.
All terms used in this Indenture that are defined by the TIA, defined by
a TIA reference to another statute or defined by an SEC rule under the TIA have
the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating.
The Securities, the notations thereon relating to the Guarantees and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A to this Indenture, which is hereby incorporated into this Indenture.
The Securities may have notations, legends or endorsements required by law,
securities exchange rule, the Company's certificate of incorporation or bylaws,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be
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dated the date of its authentication. The Securities shall be in registered
form without coupons and only in denominations of $1,000 and any integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
The Securities will initially be issued in global form, substantially in
the form of Exhibit A attached hereto (including footnote 1 thereto) and in
definitive form, substantially in the form of Exhibit A hereto (not including
footnote 1 thereto). A Global Security shall represent such of the outstanding
Securities as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of Global
Securities to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
SECTION 2.02 Execution and Authentication.
Two Officers of the Company shall sign the Securities on behalf of the
Company, and two Officers of each Guarantor shall sign the notation on the
Securities relating to the Guarantees on behalf of such Guarantor, in each case
by manual or facsimile signature. The Company's seal shall be impressed,
affixed, imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer of the Company or any Guarantor whose signature is on a
Security no longer holds that office at the time the Security is authenticated,
the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue up to the
aggregate principal amount of $125,000,000, upon a written order of the Company
signed by two Officers of the Company. Such order shall specify the amount of
the Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed such amount except as provided in Section
2.07 hereof.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, the Guarantors or an Affiliate
of any of them.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or exchange ("Registrar") and an office
or agency where Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Security.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities, whether such money shall have been
paid to it by the Company or any Guarantor, and will notify the Trustee of any
default by the Company or any Guarantor in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee and to account for any funds disbursed. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. Upon payment over to the Trustee and
upon accounting for any funds disbursed, the Paying Agent (if other than the
Company or a Subsidiary of the Company) shall have no further liability for the
money. If the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
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SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When
Definitive Securities are presented to the Registrar with the request:
(x) to register the transfer of the Definitive Securities,
or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirement for such transactions are met; provided, however, that the
Definitive Securities presented or surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by the Holder thereof or by
his attorney, duly authorized in writing; and
(ii) in the case of Transfer Restricted Securities that are
Definitive Securities, shall be accompanied by the
following additional information and documents, as
applicable, upon which the Registrar may conclusively
rely:
(A) if such Transfer Restricted Securities are
being delivered to the Registrar by a Holder
for registration in the name of such Holder,
without transfer, a certification from such
Holder to that effect (in substantially the
form of Exhibit B hereto); or
(B) if such Transfer Restricted Securities are
being transferred (1) to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act) in accordance with
Rule 144A under the Securities Act or (2)
pursuant to an exemption from registration in
accordance with Rule 144 under the Securities
Act (and based upon an opinion of counsel if
the Company so
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requests) or (3) pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B
hereto); or
(C) if such Transfer Restricted Securities are
being transferred to an institutional
"accredited investor," within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement
exemption from the registration requirements
of the Securities Act (and based upon an
opinion of counsel if the Company so
requests), a certification to that effect from
such Holder (in substantially the form of
Exhibit B hereto) and a certification from the
applicable transferee (in substantially the
form of Exhibit C hereto);
(D) if such Transfer Restricted Securities are
being transferred pursuant to an exemption
from registration in accordance with Rule 904
under the Securities Act (and based upon an
opinion of counsel if the Company so
requests), certifications to that effect from
such Holder (in substantially the form of
Exhibits B and D hereto); or
(E) if such Transfer Restricted Securities are
being transferred in reliance on another
exemption from the registration requirements
of the Securities Act (and based upon an
opinion of counsel if the Company so
requests), a certification to that effect from
such Holder (in substantially the form of
Exhibit B hereto).
(b) Restriction on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a Definitive Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with:
(i) if such Definitive Security is a Transfer Restricted
Security, certification, substantially in the form of
Exhibit B hereto, upon which the Trustee may
conclusively rely, that such Definitive Security is
being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act; or
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(ii) if such Definitive Security is a Transfer Restricted
Security and is being transferred pursuant to an
exemption from registration in accordance with Rule
904 under the Securities Act (and based upon an
opinion of counsel if the Company so requests),
certifications to that effect from such Holder (in
substantially the form of Exhibits B and D hereto);
and
(iii) whether or not such Definitive Security is a Transfer
Restricted Security, written instructions directing
the Trustee to make, or direct the Security Custodian
to make, an endorsement on the Global Security to
reflect an increase in the aggregate principal amount
of the Securities represented by the Global Security;
then the Trustee shall cancel such Definitive Security in accordance with
Section 2.11 hereof and cause, or direct the Security Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Security Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If
no Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate a new Global Security in the appropriate principal
amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depositary
therefor, which shall include restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial
interest for a Definitive Security. Upon receipt by
the Trustee of written instructions or such other form
of instructions as is customary for the Depositary,
from the Depositary or its nominee on behalf of any
Person having a beneficial interest in a Global
Security, and in the case of a Transfer Restricted
Security, the following additional information and
documents (all of which may be submitted by
facsimile), upon which the Trustee may conclusively
rely:
(A) if such beneficial interest is being
transferred to the Person designated by the
Depositary as being the beneficial owner, a
certification from such Person to that effect
(in substantially the form of Exhibit B
hereto); or
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(B) if such beneficial interest is being
transferred (1) to a "qualified institutional
buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A
under the Securities Act or (2) pursuant to an
exemption from registration in accordance with
Rule 144 under the Securities Act (and based
upon an opinion of counsel if the Company so
requests) or (3) pursuant to an effective
registration statement under the Securities
Act, a certification to that effect from the
transferor (in substantially the form of
Exhibit B hereto); or
(C) if such beneficial interest is being
transferred to an institutional "accredited
investor," within the meaning of Rule
501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement
exemption from the registration requirements
of the Securities Act (and based upon an
opinion of counsel if the Company so
requests), a certification to that effect from
such transferor (in substantially the form of
Exhibit B hereto) and a certification from the
applicable transferee (in substantially the
form of Exhibit C hereto); or
(D) if such beneficial interest is being
transferred pursuant to an exemption from
registration in accordance with Rule 904 under
the Securities Act (and based upon an opinion
of counsel if the Company so requests),
certifications to that effect from such
transferor (in substantially the form of
Exhibits B and D hereto); or
(E) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act (and based upon an opinion of
counsel if the Company so requests), a
certification to that effect from such
transferor (in substantially the form of
Exhibit B hereto);
the Trustee or the Security Custodian, at the
direction of the Trustee, shall, in accordance with
the standing instructions and procedures existing
between the Depositary and the Security Custodian,
cause the aggregate principal amount of Global
Securities to be reduced accordingly and, following
such reduction, the Company shall execute and the
Trustee shall authenticate and deliver to the
transferee a Definitive Security in the appropriate
principal amount.
(ii) Definitive Securities issued in exchange for
a beneficial interest in a Global Security
pursuant to this Section 2.06(d) shall be
registered in
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such names and in such authorized
denominations as the Depositary, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such
Definitive Securities to the Persons in whose
names such Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Security
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Securities in Absence of
Depositary. If at any time:
(i) the Depositary for the Securities notifies the Company
that the Depositary is unwilling or unable to continue
as Depositary for the Global Securities and a
successor Depositary for the Global Securities is not
appointed by the Company within 90 days after delivery
of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the
issuance of Definitive Securities under this
Indenture,
then the Company will execute, and the Trustee will authenticate and deliver
Definitive Securities, in an aggregate principal amount equal to the principal
amount of the Global Securities, in exchange for such Global Securities and
registered in such names as the Depositary shall instruct the Trustee or the
Company in writing.
(g) Legends.
(i) Except as permitted by the following paragraph (ii),
each Security certificate evidencing the Global
Securities and the Definitive Securities (and all
Securities issued in exchange therefor or substitution
thereof) shall bear a legend in substantially the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
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SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS
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COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
Each Security certificate evidencing the Global Securities also
shall bear the paragraph referred to in footnote 1 in the form
of Security attached hereto as Exhibit A.
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Security) pursuant to Rule 144
under the Securities Act or an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the
Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for
a Definitive Security that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer
Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Security,
such Transfer Restricted Security shall not be
required to bear the legend set forth in (i)
above if all other interests in such Global
Security have been or are concurrently being
sold or transferred pursuant to Rule 144 under
the Securities Act or pursuant to an effective
registration statement under the Securities
Act, but such Transfer Restricted Security
shall continue to be subject to the provisions
of Section 2.06(c) hereof; provided, however,
that with respect to any request for an
exchange of a Transfer Restricted Security
that is represented by a Global Security for a
Definitive Security that does not bear a
legend set forth in (i) above, which request
is made in reliance upon Rule 144 under the
Securities Act, the Holder thereof shall
certify in writing to the Registrar that such
request is being made pursuant to Rule 144
under the Securities Act (such certification
to be substantially in the form of Exhibit B
hereto).
(iii) Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate
Series B Securities in exchange for Series A
Securities accepted for exchange in the Exchange
Offer, which Series B
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Securities shall not bear the legend set forth in (i)
above, and the Registrar shall rescind any restriction
on the transfer of such Securities, in each case
unless the Holder of such Series A Securities is
either (A) a broker-dealer, (B) a Person participating
in the distribution of the Series A Securities or (C)
a Person who is an affiliate (as defined in Rule 144
under the Securities Act) of the Company. The Company
shall identify to the Trustee such Holders of the
Securities in a written certification signed by an
Officer of the Company and, absent certification from
the Company to such effect, the Trustee shall assume
that there are no such Holders.
(h) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to or retained and canceled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the Trustee
or the Security Custodian, at the direction of the Trustee to reflect such
reduction.
(i) General Provisions with respect to Transfer and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the
Trustee shall authenticate Definitive
Securities and Global Securities at the
Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange
(except as otherwise expressly permitted
herein), but the Company may require payment
of a sum sufficient to cover any transfer tax
or similar governmental charge payable in
connection therewith (other than such transfer
tax or similar governmental charge payable
upon exchanges pursuant to Section 8.05
hereof).
(iii) The Trustee shall authenticate Definitive
Securities and Global Securities in accordance
with the provisions of Section 2.02 hereof.
(iv) Notwithstanding any other provisions of this
Indenture to the contrary, the Company shall
not be required to register the transfer or
exchange of a Security between the record date
and the next succeeding Interest Payment Date.
(v) Neither the Company nor the Trustee will have
any responsibility or liability for any aspect
of the records relating to, or payments made
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on account of, Securities by the Depositary,
or for maintaining, supervising or reviewing
any records of the Depositary relating to such
Securities. Neither the Company nor the
Trustee shall be liable for any delay by the
related Global Security Holder or the
Depositary in identifying the beneficial
owners of the related Securities and each such
Person may conclusively rely on, and shall be
protected in relying on, instructions from
such Global Security Holder or the Depositary
for all purposes (including with respect to
the registration and delivery, and the
respective principal amounts, of the
Securities to be issued).
SECTION 2.07 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee, the Company or any Guarantor, such Holder must furnish
an indemnity bond that is sufficient in the judgment of the Trustee, the
Company and the Guarantors to protect the Company, the Guarantors, the Trustee,
any Agent or any authenticating agent from any loss which any of them may
suffer if a Security is replaced. The Company, the Trustee and the Guarantors
may charge for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company
and the Guarantors.
SECTION 2.08 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.08 as
not outstanding.
If a Security is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 3.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the Company, a
Guarantor or an Affiliate of any of them holds the Security.
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SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, a Guarantor or an Affiliate of any of them shall be
disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 Temporary Securities.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities, but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as Definitive Securities.
SECTION 2.11 Cancellation.
The Company or any Guarantor at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation.
Unless the Company shall direct that canceled Securities be returned to it,
after written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the
Trustee, and the Trustee shall maintain a record of their disposal. The Company
may not issue new Securities to replace Securities that have been paid or that
have been delivered to the Trustee for cancellation.
SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest on the defaulted interest, in each case at the rate provided
in the Securities and in Section 3.01 hereof. The Company may pay the defaulted
interest to the Persons who are Holders on a subsequent special record date. At
least 15 days before any special record date, the Company (or the Trustee, in
the name of and at the expense of the Company) shall mail to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
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SECTION 2.13 Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating agent may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payments of principal of or interest on
such Security and for all other purposes. None of the Company, the Trustee, any
Agent or any authenticating agent shall be affected by any notice to the
contrary.
ARTICLE 3
COVENANTS
SECTION 3.01 Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and in this
Indenture. Principal and interest shall be considered paid on the date due if
the Paying Agent, other than the Company or a Subsidiary of the Company, holds
on that date money deposited by the Company designated for and sufficient to
pay all principal and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at a rate equal to
the then applicable interest rate on the Securities to the extent lawful; and
it shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 3.02 Maintenance of Office or Agency.
The Company will maintain, in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee, the Registrar
or the Paying Agent) where Securities may be presented for registration of
transfer or exchange, where Securities may be presented for payment and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. Unless otherwise designated by the Company by
written notice to the Trustee, such office or agency shall be the principal
office of the Trustee, in The City of New York which, on the date hereof, is
located at 77 Water Street, 4th Floor, New York, New York 10005. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may
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from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The
City of New York for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby designates the
Corporate Trust Office of the Trustee as one such office or agency of the
Company in accordance with Section 2.03 hereof.
SECTION 3.03 SEC Reports; Financial Statements.
(a) The Company shall file with the Trustee, within 15 days after
it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of such Section
13 or 15(d), the Company shall file with the Trustee, within 15 days after it
would have been required to file the same with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditors'
report by a firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," both
comparable to that which the Company would have been required to include in
such annual reports, information, documents or other reports if the Company had
been subject to the requirements of such Section 13 or 15(d). The Company shall
also comply with the provisions of TIA Section 314(a).
(b) If the Company is required to furnish annual or quarterly
reports to its stockholders pursuant to the Exchange Act, the Company shall
cause any annual report furnished to its stockholders generally and any
quarterly or other financial reports furnished by it to its stockholders
generally to be filed with the Trustee and mailed to the Holders at their
addresses appearing in the register of Securities maintained by the Registrar.
If the Company is not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company shall cause its
financial statements referred to in Section 3.03(a) hereof, including any notes
thereto (and with respect to annual reports, an auditors' report by a firm of
established national reputation), and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" to be so mailed to the
Holders within 90 days after the end of each of the Company's fiscal years and
within 60 days after the end of each of the Company's first three fiscal
quarters.
(c) For so long as any Transfer Restricted Securities remain
outstanding, the Company shall furnish to all Holders and prospective
purchasers of the Securities designated by the Holders of Transfer Restricted
Securities, promptly upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) The Company shall provide the Trustee with a sufficient number
of copies of all reports and other documents and information that the Trustee
may be required to deliver to Holders under this Section 3.03.
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SECTION 3.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a statement signed by two Officers
of the Company, which need not constitute an Officers' Certificate, complying
with TIA Section 314(a)(4) and stating that in the course of performance by the
signing Officers of the Company of their duties as such Officers of the Company
they would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company of its obligations under this Indenture, and further
stating, as to each such Officer signing such statement, that to the best of
his knowledge the Company and each Guarantor has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may
have knowledge and what action the Company or such Guarantor, as the case may
be, is taking or proposes to take with respect thereto).
(b) The Company and the Guarantors shall, so long as any of the
Securities are outstanding, deliver to the Trustee, forthwith upon any Officer
of the Company or any Guarantor becoming aware of any Default or Event of
Default under this Indenture, an Officers' Certificate specifying such Default
or Event of Default and what action the Company or such Guarantor is taking or
proposes to take with respect thereto.
SECTION 3.05 Corporate Existence.
Subject to Article 4 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership and other existence of each
of its Subsidiaries and all rights (charter and statutory) and franchises of
the Company and its Subsidiaries, provided that the Company shall not be
required to preserve the corporate existence of any Subsidiary of the Company
or any such right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries taken as a whole and that the loss thereof
would not have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole and
would not have any material adverse effect on the payment and performance of
the obligations of the Company and the Guarantors under the Securities and this
Indenture.
SECTION 3.06 Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
the Company or any Subsidiary of the Company or used or held for use in the
conduct of its business or the business of any such Subsidiary to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may
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be necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided that nothing in this Section 3.06
shall prevent the Company from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business of any such
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 3.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Company or any of its Subsidiaries; provided that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith, and, if necessary, by appropriate proceedings.
SECTION 3.08 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law, which would prohibit or forgive
the Company or any Guarantor from paying all or any portion of the principal of
or interest on the Securities as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that they may lawfully do so)
the Company and each Guarantor hereby expressly waive all benefit or advantage
of any such law, and covenant that they will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 3.09 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into any Sale/Leaseback Transaction with any Person (other
than the Company or a Subsidiary of the Company) unless:
(a) the Company or such Subsidiary would be entitled to incur
Indebtedness, in a principal amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction, secured by a Lien on the property
subject to such Sale/Leaseback Transaction pursuant to Section 3.10 hereof
without equally and ratably securing the Securities pursuant to such Section;
(b) after the Issue Date and within a period commencing six months
prior to the consummation of such Sale/Leaseback Transaction and ending six
months after the consummation
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thereof, the Company or such Subsidiary shall have expended for property used
or to be used in the ordinary course of business of the Company and its
Subsidiaries an amount equal to all or a portion of the Net Proceeds of such
Sale/Leaseback Transaction and the Company shall have elected to designate such
amount as a credit against such Sale/Leaseback Transaction (with any such
amount not being so designated to be applied as set forth in clause (c) below);
or
(c) the Company, during the 12-month period after the effective
date of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of Securities or any Pari Passu Indebtedness an amount
equal to the greater of the Net Proceeds of the sale or transfer of the
property leased in such Sale/Leaseback Transaction and the fair value, as
determined by the Board of Directors, of such property at the time of entering
into such Sale/Leaseback Transaction (in either case adjusted to reflect the
remaining term of the lease and any amount expended by the Company as set forth
in clause (b) above), less an amount equal to the principal amount of
Securities and Pari Passu Indebtedness voluntarily defeased or retired by the
Company within such 12-month period and not designated as a credit against any
other Sale/Leaseback Transaction entered into by the Company or any Subsidiary
of the Company during such period.
SECTION 3.10 Limitation on Liens.
The Company shall not, and shall not permit any Subsidiary of the
Company to, issue, assume or guarantee any Indebtedness for borrowed money
secured by any Lien on any property or asset now owned or hereafter acquired by
the Company or such Subsidiary without making effective provision whereby any
and all Securities then or thereafter outstanding will be secured by a Lien
equally and ratably with any and all other obligations thereby secured for so
long as any such obligations shall be so secured. Notwithstanding the
foregoing, the Company or any Subsidiary of the Company may, without so
securing the Securities, issue, assume or guarantee Indebtedness for borrowed
money secured by the following Liens:
(a) Liens existing on the Issue Date or provided for under the
terms of agreements existing on the Issue Date securing Indebtedness existing
on the Issue Date (including, without limitation, the Lien provided for
pursuant to Section 6.07 hereof);
(b) Liens on property securing (i) all or any portion of the cost
of acquiring, constructing, altering, improving or repairing any property or
assets, real or personal, or improvements used or to be used in connection with
such property or (ii) Indebtedness incurred by the Company or any Subsidiary of
the Company prior to or within one year after the later of the acquisition, the
completion of construction, alteration, improvement or repair or the
commencement of commercial operation thereof, which Indebtedness is incurred
for the purpose of financing all or any part of the purchase price thereof or
construction or improvements thereon;
(c) Liens securing Indebtedness owed by a Subsidiary of the
Company to the Company or to any other Subsidiary of the Company;
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(d) Liens on the property of any Person existing at the time such
Person becomes a Subsidiary of the Company and not incurred as a result of (or
in connection with or in anticipation of) such Person's becoming a Subsidiary
of the Company, provided that such Liens do not extend to or cover any property
or assets of the Company or any of its Subsidiaries other than the property
encumbered at the time such Person becomes a Subsidiary of the Company and do
not secure Indebtedness with a principal amount in excess of the principal
amount outstanding at such time;
(e) Liens on any property securing (i) 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 (ii) Indebtedness issued or guaranteed by the United States or any
State thereof or any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted under
clause (a), (b), (d) or (e) above, provided that such Lien extends to or covers
only the property that is subject to the Lien being extended, renewed or
replaced and that the principal amount of the Indebtedness secured thereby
shall not exceed the principal amount of Indebtedness so secured at the time of
such extension, renewal or replacement; or
(g) Liens (exclusive of any Lien of any type otherwise permitted
under clauses (a) through (f) above) securing Indebtedness for borrowed money
of the Company or any Subsidiary of the Company in an aggregate principal
amount which, together with the aggregate amount of Attributable Indebtedness
deemed to be outstanding in respect of all Sale/Leaseback Transactions entered
into pursuant to clause (a) of Section 3.09 hereof (exclusive of any such
Sale/Leaseback Transactions otherwise permitted under clauses (a) through (f)
above), does not at the time such Indebtedness is incurred exceed 10% of the
Consolidated Net Worth of the Company (as shown in the most recent audited
consolidated balance sheet of the Company and its Subsidiaries).
SECTION 3.11 Registration Rights Agreement.
The Company shall perform its obligations under the Registration
Rights Agreement and shall comply in all material respects with the terms and
conditions contained therein including, without limitation, the payment of
additional interest (as described in Section 2(e) of the Registration Rights
Agreement).
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ARTICLE 4
SUCCESSORS
SECTION 4.01 Limitations on Mergers and Consolidations.
Neither the Company nor any Guarantor shall consolidate with or merge
into any Person, or sell, lease, convey, transfer or otherwise dispose of all
or substantially all of its assets to any Person, unless:
(i) the Person formed by or surviving such
consolidation or merger (if other than the
Company or such Guarantor, as the case may
be), or to which such sale, lease,
conveyance, transfer or other disposition
shall be made (collectively, the
"Successor"), is a corporation organized and
existing under the laws of the United States
or any State thereof or the District of
Columbia (or, alternatively, in the case of a
Guarantor organized under the laws of a
jurisdiction outside the United States, a
corporation organized and existing under the
laws of such foreign jurisdiction), and the
Successor assumes by supplemental indenture
in a form satisfactory to the Trustee all of
the obligations of the Company or such
Guarantor, as the case may be, under this
Indenture and the Securities;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default
shall have occurred and be continuing; and
(iii) the Company shall have delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that the
transaction and such supplemental indenture
comply with this Indenture.
SECTION 4.02 Successor Corporation Substituted.
Upon any consolidation or merger of the Company or any Guarantor, or
any sale, lease, conveyance, transfer or other disposition of all or
substantially all of the assets of the Company or any Guarantor in accordance
with Section 4.01 hereof, the Successor formed by such consolidation or into or
with which the Company or such Guarantor is merged or to which such sale,
lease, conveyance, transfer or other disposition or assignment is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor, as the case may be, under this Indenture and the
Securities with the same effect as if such Successor had
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been named as the Company or such Guarantor herein and the predecessor Company
or Guarantor, in the case of a sale, conveyance, transfer or other disposition,
shall be released from all obligations under this Indenture and the Securities.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company or any Guarantor defaults in the payment of
interest on any Security when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company or any Guarantor defaults in the payment of
the principal of any Security when the same becomes due and payable at
maturity, upon acceleration or otherwise;
(3) the Company or any Guarantor fails to comply with any of
its other agreements or covenants in, or provisions of, the Securities,
the Guarantees or this Indenture and such failure continues for the
period and after the notice specified in the last paragraph of this
Section 5.01;
(4) any default shall occur which results in the
acceleration of the maturity of any Indebtedness of the Company or any
Subsidiary of the Company (other than the Securities or any
Non-Recourse Indebtedness) having an outstanding principal amount of
$20 million or more individually or, taken together with all other such
Indebtedness that has been so accelerated, in the aggregate; or any
default shall occur in the payment of any principal or interest in
respect of any Indebtedness of the Company or any Subsidiary of the
Company (other than the Securities or any Non-Recourse Indebtedness)
having an outstanding principal amount of $20 million or more
individually or, taken together with all other such Indebtedness with
respect to which any such payment has not been made, in the aggregate
and such default shall be continuing for a period of 30 days without
the Company or such Subsidiary, as the case may be, effecting a cure of
such default;
(5) a judgment or order for the payment of money in excess
of $20 million (net of applicable insurance coverage) shall be rendered
against the Company, any Guarantor or any other "significant
subsidiary" (as such term is defined in Regulation S-X under the
Exchange Act; a "Significant Subsidiary") of the Company and such
judgment or order shall continue unsatisfied and unstayed for a period
of 30 days;
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(6) the Company, any Guarantor or any other Significant
Subsidiary of the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or for a substantial part of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
60 days and that:
(A) is for relief against the Company, any Guarantor or any
other Significant Subsidiary of the Company as debtor in an involuntary
case,
(B) appoints a Custodian of the Company, any Guarantor or
any other Significant Subsidiary of the Company or a Custodian for all
or for a substantial part of the property of the Company, any Guarantor
or any other Significant Subsidiary of the Company, or
(C) orders the liquidation of the Company, any Guarantor or
any other Significant Subsidiary of the Company.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know of a Default unless a Trust
Officer at the Corporate Trust Office of the Trustee has actual knowledge of
such Default or the Trustee receives written notice at the Corporate Trust
Office of the Trustee of such Default with specific reference to such Default.
When a Default is cured, it ceases.
A Default under clause (3) of this Section is not an Event of Default
until the Trustee notifies the Company and, in the case of a Default by a
Guarantor, such Guarantor, or the Holders of at least 25% in principal amount
of the then outstanding Securities notify the Company, such Guarantor (where
applicable) and the Trustee, of the Default, and neither the Company nor such
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Guarantor cures the Default within 60 days after receipt of the notice. The
notice must specify the Default, demand that it be remedied and state that the
notice is a "Notice of Default."
SECTION 5.02 Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (6) or (7) of Section 5.01 hereof with respect to the Company or any
Guarantor) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the then outstanding
Securities by notice to the Company and the Trustee, may declare the principal
of and accrued and unpaid interest on all then outstanding Securities to be due
and payable immediately. Upon any such declaration the amounts due and payable
on the Securities, as determined in accordance with the next succeeding
paragraph, shall be due and payable immediately. If an Event of Default
specified in clause (6) or (7) of Section 5.01 hereof with respect to the
Company or any Guarantor occurs, such amounts shall ipso facto become and be
immediately due and payable without any declaration, notice or other act on the
part of the Trustee or any Holder. The Holders of a majority in principal
amount of the then outstanding Securities by written notice to the Trustee may
rescind an acceleration and its consequences (other than nonpayment of
principal of or interest on the Securities) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived, except nonpayment of principal or interest that has
become due solely because of the acceleration.
In the event that the maturity of the Securities is accelerated
pursuant to this Section 5.02, 100% of the principal amount thereof shall
become due and payable plus accrued interest to the date of payment.
SECTION 5.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities,
this Indenture or the Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 5.04 Waiver of Existing Defaults.
Subject to Sections 5.07 and 8.02 hereof, the Holders of a majority in
principal amount of the then outstanding Securities by notice to the Trustee
may waive an existing Default or Event of Default and its consequences
(including waivers obtained in connection with a tender offer or exchange offer
for Securities or a solicitation of consents in respect of Securities, provided
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that in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms), except (1) a continuing Default or
Event of Default in the payment of the principal of or interest on any Security
or (2) a continued Default in respect of a provision that under Section 8.02
hereof cannot be amended without the consent of each Holder 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 5.05 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it hereunder. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other Holders, or
that may involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such
action.
SECTION 5.06 Limitations on Suits.
Subject to Section 5.07 hereof, a Holder may pursue a remedy with
respect to this Indenture (including the Guarantees) or the Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
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SECTION 5.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest on the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 5.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 5.01
hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company and any
Guarantor for the amount of principal and interest remaining unpaid on the
Securities, and interest on overdue principal and, to the extent lawful,
interest on overdue interest, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 5.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents and to take such actions, including participating as a member,
voting or otherwise, of any committee of creditors, as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company and any Guarantor or their respective
creditors or properties and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such
claims and any Custodian 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 to 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 6.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Securities may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 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.
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SECTION 5.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07 hereof;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal
and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Article.
SECTION 5.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 5.07 hereof, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities.
ARTICLE 6
TRUSTEE
SECTION 6.01 Duties of Trustee.
(a) If an Event of Default 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 such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
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(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. However,
the Trustee shall examine such certificates and opinions to determine
whether or not, on their face, they appear to conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives indemnity
reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee shall,
until applied as herein provided, be held in trust for the payment of the
principal of and interest on the Securities.
SECTION 6.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The
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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.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company or any Guarantor shall be
sufficient if signed by an Officer of the Company or such Guarantor.
SECTION 6.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, the
Guarantors or any of their Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 6.10 and 6.11 hereof.
SECTION 6.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or
upon the Company's direction under any provision hereof, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee and it shall not be responsible for any statement
or recital herein or any statement in the Securities other than its certificate
of authentication.
SECTION 6.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 45 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of or interest on any
Security, the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Holders.
SECTION 6.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with January 31, 1996,
and in any event prior to March 31 in each year, the Trustee shall mail to
Holders a brief report dated as of such
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reporting date that complies with TIA Section 313(a); provided, however, that if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted. The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company shall notify the Trustee if and when the
Securities are listed on any stock exchange.
SECTION 6.07 Compensation and Indemnity.
The Company and the Guarantors jointly and severally agree to pay to
the Trustee from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company and the Guarantors jointly and severally agree to reimburse the Trustee
upon request for all reasonable disbursements, advances and expenses incurred
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company and the Guarantors jointly and severally agree to indemnify
the Trustee against any loss, liability or expense incurred by it arising out
of or in connection with the acceptance or administration of its duties under
this Indenture, except as set forth in the next paragraph. The Trustee shall
notify the Company and the Guarantors promptly of any claim for which it may
seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
and the Guarantors shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent.
Neither the Company nor the Guarantors shall be obligated to reimburse
any expense or indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantors in
this Section 6.07, the Trustee shall have a Lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust
to pay principal of and interest on the Securities. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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SECTION 6.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 6.08.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company and the Guarantors. The Holders of a majority in
principal amount of the then outstanding Securities may remove the Trustee by
so notifying the Trustee and the Company. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 6.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company and the Guarantors shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 6.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Guarantors.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the Lien provided for in Section 6.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 6.08 hereof, the obligations of the
Company and the Guarantors under Section 6.07 hereof shall continue for the
benefit of the retiring Trustee.
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SECTION 6.09 Successor Trustee by Merger, etc.
Subject to Section 6.10 hereof, if the Trustee consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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; and in case at that time any of
the Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have.
SECTION 6.10 Eligibility; Disqualification.
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 and authorized under
such laws to exercise corporate trust power, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have, or be a Subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with the provisions of TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
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ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.01 Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect (except that
the Company's and the Guarantors' obligations under Section 6.07 hereof and the
Trustee's and Paying Agent's obligations under Section 7.03 hereof shall
survive), and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging the satisfaction and discharge of this Indenture,
when:
(1) either
(A) all outstanding Securities theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been
replaced or paid) have been delivered to the Trustee for cancellation;
or
(B) all outstanding 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,
and the Company, in the case of clause (i) or (ii) above, has deposited
or caused to be deposited with the Trustee as funds (immediately
available to the Holders in the case of clause (i)) in trust for such
purpose an amount which, together with earnings thereon, will be
sufficient to pay and discharge the entire indebtedness on such
Securities for principal and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
stated maturity, as the case may be;
(2) the Company has paid all other sums payable by it hereunder; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, together with an
Opinion of Counsel to the same effect.
(b) The Company and the Guarantors may, subject as provided herein,
terminate all of their obligations under this Indenture if:
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(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for and dedicated solely to the benefit of the Holders, (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure the availability
of cash in an amount or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay, without consideration of the reinvestment of any such amounts and
after payment of all taxes or other charges or assessments in respect
thereof payable by the Trustee, the principal and interest on all
Securities on each date that such principal or interest is due and payable
and to pay all other sums payable by it hereunder; provided that the
Trustee shall have been irrevocably instructed to apply such money and/or
the proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Securities as the same shall
become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture have been complied with, and an Opinion of
Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (6) and (7)
of Section 5.01 hereof are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period);
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from a nationally recognized counsel acceptable to the Trustee or a
tax ruling to the effect that the Holders will not recognize income, gain
or loss for Federal income tax purposes as a result of the Company's
exercise of its option under this Section 7.01(b) and will be subject to
Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised;
(5) such deposit and discharge will not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound;
(6) such deposit and discharge shall not cause the Trustee to have
a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the passage of 91 days following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
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In such event, this Indenture shall cease to be of further effect
(except as provided in the next succeeding paragraph), and the Trustee, on
demand of the Company, shall execute proper instruments acknowledging
satisfaction and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 3.01, 4.01, 6.07, 6.08 and 7.04 hereof, the Company's and the Guarantors'
obligations in Sections 4.01, 6.07, 7.04 and 9.01 hereof and the Trustee's and
Paying Agent's obligations in Section 7.03 hereof shall survive until the
Securities are no longer outstanding. Thereafter, only the Company's and the
Guarantors' obligations in Section 6.07 hereof and the Trustee's and Paying
Agent's obligations in Section 7.03 hereof shall survive.
After such irrevocable deposit made pursuant to this Section 7.01(b)
and satisfaction of the other conditions set forth herein, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under this Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of
or interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest on or before such payment date in such amounts as
will provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
SECTION 7.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 7.01 hereof. 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 of and interest on
the Securities.
SECTION 7.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
Subject to the requirements of any applicable abandoned property laws,
the Trustee and the Paying Agent shall pay to the Company upon written request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have
become due; provided, however, that the Company shall have either caused notice
of such payment to be mailed to each Holder entitled thereto no less than 30
days prior to such repayment or within such period shall have published such
notice in a financial newspaper of widespread circulation published in The City
of New York. After payment to the Company, Holders entitled to the money must
look to the Company for payment as general creditors unless an
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applicable abandoned property law designates another Person, and all liability
of the Trustee and the Paying Agent with respect to such money shall cease.
SECTION 7.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 7.01 hereof 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 obligations of the Company and the Guarantors under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 7.01 hereof until such time as the
Trustee or the Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 7.01 hereof; provided,
however, that if the Company or any Guarantor has made any payment of principal
of or interest on any Securities because of the reinstatement of its
obligations, the Company or such Guarantor shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
ARTICLE 8
AMENDMENTS
SECTION 8.01 Without Consent of Holders.
The Company, the Guarantors and the Trustee may amend or supplement
this Indenture or the Securities or waive any provision hereof or thereof
without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 4.01 hereof;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to reflect the release of any Guarantor from its Guarantee, or
the addition of any Subsidiary of the Company as a Guarantor, in the manner
provided by this Indenture;
(5) to comply with any requirement in order to effect or maintain
the qualification of this Indenture under the TIA;
(6) to add guarantees of the Securities;
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(7) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(8) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders or to surrender any right or power herein conferred
upon the Company or any Guarantor; or
(9) to make any change that does not adversely affect the rights
hereunder and under the Registration Rights Agreement of any Holder in any
material respect.
Upon the request of the Company and the Guarantors, accompanied by a
resolution of the Board of Directors and of the board of directors, board of
trustees or managing partners of each Guarantor authorizing the execution of
any such supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further
appropriate agreements and stipulations that may be therein contained. After an
amendment, supplement or waiver under this Section 8.01 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.02 With Consent of Holders.
Except as provided below in this Section 8.02, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the
Securities with the written consent (including consents obtained in connection
with a tender offer or exchange offer for Securities or a solicitation of
consents in respect of Securities, provided that in each case such offer or
solicitation is made to all Holders of then outstanding Securities on equal
terms) of the Holders of at least a majority in principal amount of the then
outstanding Securities.
Upon the request of the Company and the Guarantors, accompanied by a
resolution of the Board of Directors and of the board of directors, board of
trustees or managing partners of each Guarantor authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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The Holders of a majority in principal amount of the then outstanding
Securities may waive compliance in a particular instance by the Company or the
Guarantors with any provision of this Indenture or the Securities (including
waivers obtained in connection with a tender offer or exchange offer for
Securities or a solicitation of consents in respect of Securities, provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms).
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security;
(4) make any Security payable in money other than that stated in the
Security;
(5) impair the right to institute suit for the enforcement of any
payment of principal of or interest on any Security pursuant to Sections
5.07 and 5.08 hereof, except as limited by Section 5.06 hereof;
(6) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of this
Indenture pursuant to Section 5.04 or 5.07 hereof or this clause of this
Section 8.02; or
(7) waive a continuing Default or Event of Default in the payment
of principal of or interest on the Securities.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of this Indenture.
SECTION 8.03 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply in
form and substance with the TIA as then in effect.
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SECTION 8.04 Revocation and Effect of Consents.
Until an amendment (which includes any supplement) or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation
of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his or her Security or portion
of a Security if the Trustee receives written notice of revocation before the
date the amendment or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver or to take any other action under this Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record
date unless consents from Holders of the principal amount of Securities
required hereunder for such amendment or waiver to be effective shall have also
been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (1)
through (7) of Section 8.02 hereof. In such case, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Security.
SECTION 8.05 Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION 8.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article if the amendment or supplemental indenture
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee shall be
entitled to receive and subject to Section 6.01 hereof, shall be fully
protected in relying upon, an Opinion of
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Counsel as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company and the
Guarantors in accordance with its terms.
ARTICLE 9
GUARANTEES OF SECURITIES
SECTION 9.01 Unconditional Guarantees.
(a) For value received, the Guarantors, jointly and severally,
hereby fully, unconditionally and absolutely guarantee (the "Guarantees") to
the Holders and to the Trustee the due and punctual payment of the principal of
and interest on the Securities and all other amounts due and payable under this
Indenture and the Securities by the Company, when and as such principal and
interest shall become due and payable, whether at the stated maturity or by
declaration of acceleration or otherwise, according to the terms of the
Securities and this Indenture.
(b) Failing payment when due of any amount guaranteed pursuant to
the Guarantees, for whatever reason, each Guarantor will be obligated to pay
the same immediately. Each Guarantee hereunder is intended to be a general,
unsecured, senior obligation of each Guarantor and will rank pari passu in
right of payment with all Indebtedness of each such Guarantor that is not, by
its terms, expressly subordinated in right of payment to the Guarantee of such
Guarantor. Each of the Guarantors hereby agrees that its obligations hereunder
shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, the Guarantees or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, any release of
any other Guarantor, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each of
the Guarantors hereby agrees that in the event of a default in payment of the
principal of or interest on the Securities, whether at the stated maturity or
by declaration of acceleration or otherwise, legal proceedings may be
instituted by the Trustee on behalf of the Holders or, subject to Section 5.06
hereof, by the Holders, on the terms and conditions set forth in this
Indenture, directly against each of the Guarantors to enforce the Guarantees
without first proceeding against the Company.
(c) The obligations of each Guarantor under this Article 9 shall be
as aforesaid full, unconditional and absolute and shall not be impaired,
modified, released or limited by any occurrence or condition whatsoever,
including, without limitation, (i) any compromise, settlement, release, waiver,
renewal, extension, indulgence or modification of, or any change in, any of the
obligations and liabilities of the Company or any Guarantor contained in the
Securities or this Indenture, (ii) any impairment, modification, release or
limitation of the liability of the Company, any Guarantor or any of their
estates in bankruptcy, or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of any applicable
Bankruptcy Law, as amended, or other statute or from the decision of any court,
(iii) the assertion or exercise by the
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Company, any Guarantor or the Trustee of any rights or remedies under the
Securities or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of
any property as security for the Securities, including all or any part of the
rights of the Company or any Guarantor under this Indenture, (v) the extension
of the time for payment by the Company or any Guarantor of any payments or
other sums or any part thereof owing or payable under any of the terms and
provisions of the Securities or this Indenture or of the time for performance
by the Company or any Guarantor of any other obligations under or arising out
of any such terms and provisions or the extension or the renewal of any
thereof, (vi) the modification or amendment (whether material or otherwise) of
any duty, agreement or obligation of the Company or any Guarantor set forth in
this Indenture, (vii) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all of the assets, marshaling
of assets and liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, the Company or any of
the Guarantors or any of their respective assets, or the disaffirmance of the
Securities, the Guarantees or this Indenture in any such proceeding, (viii) the
release or discharge of the Company or any Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
such instruments by operation of law, (ix) the unenforceability of the
Securities, the Guarantees or this Indenture or (x) any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor.
(d) Each of the Guarantors hereby (i) waives diligence, presentment,
demand of payment, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Company or a Guarantor, and all demands
whatsoever, (ii) acknowledges that any agreement, instrument or document
evidencing the Guarantees may be transferred and that the benefit of its
obligations hereunder shall extend to each holder of any agreement, instrument
or document evidencing the Guarantees without notice to them and (iii)
covenants that its Guarantee will not be discharged except by complete
performance of the Guarantees. Each Guarantor further agrees that if at any
time all or any part of any payment theretofore applied by any Person to any
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
any Guarantor, such Guarantee shall, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantees shall continue to be
effective or be reinstated, as the case may be, as though such application had
not been made.
(e) Each Guarantor shall be subrogated to all rights of the Holders
and the Trustee against the Company in respect of any amounts paid by such
Guarantor pursuant to the provisions of this Indenture; provided, however, that
no Guarantor shall be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until all of the Securities
and the Guarantees shall have been paid in full or discharged.
(f) A director, officer, employee or stockholder, as such, of any
Guarantor shall not have any liability for any obligations of such Guarantor
under this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation.
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SECTION 9.02 Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal, state or foreign law. To effectuate the
foregoing intention, the Holders and each Guarantor hereby irrevocably agree
that the obligations of each Guarantor under its Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
9.03 hereof, result in the obligations of such Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal,
state or foreign law.
SECTION 9.03 Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by the Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Guarantee.
SECTION 9.04 Execution and Delivery of Guarantees.
To further evidence the Guarantees, each Guarantor hereby agrees that a
notation relating to such Guarantees shall be endorsed on each Security
authenticated and delivered by the Trustee and executed by either manual or
facsimile signature of two Officers of each Guarantor.
Each of the Guarantors hereby agrees that its Guarantee shall remain in
full force and effect notwithstanding any failure to endorse on each Security a
notation relating to such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Security no longer holds that office at the time the Trustee authenticates such
Security or at any time thereafter, such Guarantor's Guarantee of such Security
shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
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SECTION 9.05 Addition of Guarantors.
(a) If any Subsidiary of the Company guarantees (or becomes a
co-obligor on) any Funded Indebtedness of the Company other than the Securities
at any time subsequent to the Issue Date (including, without limitation,
following any release of such Subsidiary pursuant to Section 9.06 hereof from
any Guarantee previously provided by it under this Article 9), then the Company
shall (i) cause the Securities to be equally and ratably guaranteed by such
Subsidiary, but only to the extent that the Securities are not already
guaranteed by such Subsidiary on reasonably comparable terms and (ii) cause
such Subsidiary to execute and deliver a supplemental indenture evidencing its
provision of a Guarantee in accordance with clause (b) below.
(b) Any Person that was not a Guarantor on the Issue Date may become
a Guarantor by executing and delivering to the Trustee (i) a supplemental
indenture in form and substance satisfactory to the Trustee, which subjects
such Person to the provisions (including the representations and warranties) of
this Indenture as a Guarantor and (ii) an Opinion of Counsel and Officers'
Certificate to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid,
binding and enforceable obligation of such Person (subject to such customary
exceptions concerning creditors' rights and equitable principles as may be
acceptable to the Trustee in its discretion and provided that no opinion need
be rendered concerning the enforceability of the Guarantee).
SECTION 9.06 Release of Guarantee.
Notwithstanding anything to the contrary in this Article 9, in the
event that any Guarantor shall no longer be a guarantor of (or co-obligor on)
any Funded Indebtedness of the Company other than the Securities and other than
Funded Indebtedness of the Company (i) subject to a release provision
substantially similar to this Section 9.06 and (ii) the related guarantee (or
obligation) of which will be released substantially concurrently with the
release of the Guarantee of such Guarantor pursuant to this Section 9.06, and
so long as no Default or Event of Default shall have occurred or be continuing,
such Guarantor, upon giving notice to the Trustee to the foregoing effect,
shall be deemed to be released from all of its obligations under this Indenture
and the Guarantee of such Guarantor shall be of no further force or effect.
Following the receipt by the Trustee of any such notice, the Company shall
cause this Indenture to be amended as provided in Section 8.01 hereof;
provided, however, that the failure to so amend this Indenture shall not affect
the validity of the termination of the Guarantee of such Guarantor.
SECTION 9.07 Consent to Jurisdiction and Service of Process.
Each Guarantor that is not organized under the laws of the United
States (including the States and the District of Columbia) (each a "Non-U.S.
Guarantor") hereby appoints the principal office of CT Corporation System in
The City of New York which, on the date hereof, is located at 1633 Broadway,
New York, New York 10019, as the authorized agent thereof (the "Authorized
Agent") upon whom process may be served in any action, suit or proceeding
arising out of or based
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on this Indenture or the Securities which may be instituted in the Supreme
Court of the State of New York or the United States District Court for the
Southern District of New York, in either case in The Borough of Manhattan, The
City of New York, by the Holder of any Security, and each Non-U.S. Guarantor
hereby waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding and expressly and irrevocably accepts and submits,
for the benefit of the Holders from time to time of the Securities, to the
nonexclusive jurisdiction of any such court in respect of any such action, suit
or proceeding, for itself and with respect to its properties, revenues and
assets. Such appointment shall be irrevocable unless and until the appointment
of a successor authorized agent for such purpose, and such successor's
acceptance of such appointment, shall have occurred. Each Non-U.S. Guarantor
agrees to take any and all actions, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment
in full force and effect as aforesaid. Service of process upon the Authorized
Agent with respect to any such action shall be deemed, in every respect,
effective service of process upon any such Non-U.S. Guarantor. Notwithstanding
the foregoing, any action against any Non-U.S. Guarantor arising out of or
based on any Security may also be instituted by the Holder of such Security in
any court in the jurisdiction of organization of such Non-U.S. Guarantor, and
such Non-U.S. Guarantor expressly accepts the jurisdiction of any such court in
any such action. The Company shall require the Authorized Agent to agree in
writing to accept the foregoing appointment as agent for service of process.
SECTION 9.08 Waiver of Immunity.
To the extent that any Non-U.S. Guarantor or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or any
other matter under or arising out of or in connection with this Indenture or
the Securities, such Non-U.S. Guarantor, to the maximum extent permitted by
law, hereby irrevocably and unconditionally waives, and agrees not to plead or
claim, any such immunity and consents to such relief and enforcement.
SECTION 9.09 Judgment Currency.
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each Holder
against any loss incurred by it as a result of any judgment or order being
given or made and expressed and paid in a currency (the "Judgment Currency")
other than United States dollars and as a result of any variation as between
(i) the rate of exchange at which the United States dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order and (ii)
the spot rate of exchange in The City of New York at which the Trustee or such
Holder on the date of payment of such judgment or order is able to purchase
United States dollars with the amount of the Judgment
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Currency actually received by the Trustee or such Holder. The foregoing
indemnity shall constitute a separate and independent obligation of each
Non-U.S. Guarantor and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "spot rate of exchange" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, United States dollars.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION 10.02 Notices.
Any notice or communication by the Company, the Guarantors or the
Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the other's address:
If to the Company or the Guarantors:
BJ Services Company
5500 Northwest Central Drive
Houston, Texas 77092
Attention: General Counsel
If to the Trustee:
Bank of Montreal Trust Company
77 Water Street, 4th Floor
New York, New York 10005
Attention: Corporate Trust Department
The Company, the Guarantors or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if
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telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by
the Registrar. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company or any Guarantor mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee or the Company or any Guarantor by Holders, shall be in writing,
except as set forth below.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall, if requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
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SECTION 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 10.08 No Recourse Against Others.
A director, officer, employee or stockholder of the Company or any
Guarantor, as such, shall not have any liability for any obligations of the
Company or such Guarantor under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issue of Securities.
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SECTION 10.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUCTED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 10.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, any Guarantor or any other Subsidiary of the
Company. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 10.11 Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 10.12 Severability.
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 10.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.14 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
BJ SERVICES COMPANY
By:
-----------------------------------
Name:
Title:
Address:
BANK OF MONTREAL TRUST COMPANY
By:
-----------------------------------
Name:
Title:
Address:
BJ SERVICES COMPANY, U.S.A.
By:
-----------------------------------
Name:
Title:
Address:
BJ SERVICE INTERNATIONAL, INC.
By:
-----------------------------------
Name:
Title:
Address:
BJ SERVICES COMPANY MIDDLE EAST
By:
-----------------------------------
Name:
Title:
Address:
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EXHIBIT A
[FACE OF SECURITY]
BJ SERVICES COMPANY
7% SERIES [A/B] NOTE DUE 2006
CUSIP _________(1)
No. $_________
BJ Services Company, a Delaware corporation (the "Company"), for value
received promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on February 1, 2006.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
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.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[SEAL] BJ SERVICES COMPANY
By:
-----------------------------------
By:
-----------------------------------
Certificate of Authentication:
BANK OF MONTREAL TRUST COMPANY,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned
Indenture.
By:
-----------------------------------
Authorized Signature
- ---------------
(1) So long as the restrictive legend is included on a Definitive
Security, a CUSIP number is not needed for a Definitive
Security transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933).
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[Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. The Depository Trust Company shall act as the Depositary until a
successor shall be appointed by the Company and the Registrar. Unless this
certificate is presented by an authorized representative of The Depository
Trust Company (55 Water Street, New York, New York) ("DTC"), to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as may be requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.](2)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT,
- ---------------
(2) This paragraph should be included only if the Security is
issued in global form.
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62
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
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[REVERSE OF SECURITY]
BJ SERVICES COMPANY
7% SERIES [A/B] NOTE DUE 2006
This Security is one of a duly authorized issue of 7% [Series A/Series
B] Notes due 2006 (the "Securities") of BJ Services Company, a Delaware
corporation (the "Company").
1. Interest. The Company promises to pay interest on the principal
amount of this Security at 7% per annum from February 20, 1996 until maturity.
The Company will pay interest semiannually on February 1 and August 1 of each
year (each an "Interest Payment Date"), or if any such day is not a Business
Day, on the next succeeding Business Day. Interest on the Securities will
accrue from the most recent Interest Payment Date on which interest has been
paid or, if no interest has been paid, from February 20, 1996; provided that if
there is no existing Default in the payment of interest, and if this Security
is authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be August 1, 1996. The Company shall pay interest on overdue
principal from time to time on demand at a rate equal to the interest rate then
in effect; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender
this Security to a Paying Agent to collect principal payments. The Company will
pay the principal of and interest on the Securities in money of the United
States of America that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay such amounts by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. Ranking and Guarantees. The Securities are senior unsecured
obligations of the Company. The Company's obligations to pay principal and
interest with respect to the Securities are unconditionally guaranteed on a
joint and several basis (the "Guarantees") by the guarantors (the
"Guarantors"), parties to the Indenture. Each of the Guarantees is an unsecured
obligation of the Guarantor providing such Guarantee. Certain limitations to
the obligations of the Guarantors are set forth in further detail in the
Indenture. References herein to the Indenture or the Securities shall be deemed
also to refer to the Guarantees set forth in the Indenture except where the
context otherwise requires.
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64
4. Paying Agent and Registrar. Initially, Bank of Montreal Trust
Company (the "Trustee"), the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar,
co-registrar or additional paying agent without notice to any Holder. The
Company may act in any such capacity.
5. Indenture. The Company issued the Securities under an Indenture
dated as of February 1, 1996 (the "Indenture") among the Company, the
Guarantors and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in
effect on the date of execution of the Indenture. The Securities are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Securities are unsecured general obligations of
the Company limited to $125,000,000 in aggregate principal amount.
6. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not exchange or register the transfer of
any Securities during the period between a record date and the corresponding
Interest Payment Date.
7. Persons Deemed Owners. The registered Holder of a Security shall be
treated as its owner for all purposes.
8. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the then outstanding Securities, and any existing Default under, or compliance
with any provision of, the Indenture may be waived (other than any continuing
Default or Event of Default in the payment of the principal of or interest on
the Securities) by the Holders of at least a majority in principal amount of
the Securities then outstanding in accordance with the terms of the Indenture.
Without the consent of any Holder, the Company, the Guarantors and the Trustee
may amend or supplement the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency; to provide for uncertificated Securities in
addition to or in place of certificated Securities; to provide for the
assumption of the obligations of the Company and each Guarantor under the
Indenture to Holders in the case of the merger, consolidation or sale or other
disposition of all or substantially all of the assets of the Company or any
Guarantor; to reflect the release of any Guarantor from its Guarantee to the
extent permitted by the Indenture; to add guarantees to the Securities; to add
to the covenants of the Company or the Guarantors or to surrender any right of
the Company or any Guarantor; to make any change that does not materially
adversely affect the rights of any Holder; or to comply with the qualification
of the Indenture under the Trust Indenture Act of 1939, as amended.
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65
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of
record of any Securities with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of the Indenture.
Without the consent of each Holder affected, the Company may not (i)
reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver, (ii) reduce the rate of or change the time for payment of
interest, including default interest, on any Security, (iii) reduce the
principal of or change the fixed maturity of any Security, (iv) make any
Security payable in money other than that stated in the Security, (v) impair
the right to institute suit for the enforcement of any payment of principal of
or interest on any Security, (vi) make any change in the percentage of
principal amount of Securities necessary to waive compliance with certain
provisions of the Indenture or (vii) waive a continuing Default or Event of
Default in the payment of principal of or interest on the Securities.
9. Defaults and Remedies. Events of Default include: default in payment
of interest on the Securities for 30 days; default in payment of principal of
the Securities; failure by the Company or any Guarantor for 60 days after
written notice by the Trustee or by the Holders of at least 25% of the
aggregate principal amount of the Securities then outstanding to it to comply
with any of its other covenants or agreements in the Indenture, the Guarantees
or the Securities; the acceleration of the maturity of any Indebtedness of the
Company or any Subsidiary of the Company (other than the Securities or any
Non-Recourse Indebtedness) that has an outstanding principal amount of $20
million or more individually or in the aggregate; a default in the payment of
principal or interest in respect of any Indebtedness of the Company or any
Subsidiary of the Company (other than the Securities or any Non-Recourse
Indebtedness) having an outstanding principal amount of $20 million or more
individually or in the aggregate, and such default shall be continuing for a
period of 30 days without the Company or such Subsidiary, as the case may be,
effecting a cure of such default; a judgment or order for the payment of money
in excess of $20 million (net of applicable insurance coverage) having been
rendered against the Company, any Guarantor or any other "significant
subsidiary" (as such term is defined in Regulation S-X under the Securities
Exchange Act of 1934, as amended; a "Significant Subsidiary") of the Company
and such judgment or order shall continue unsatisfied and unstayed for a period
of 30 days; or certain events involving bankruptcy, insolvency or
reorganization of the Company, any Guarantor or any other Significant
Subsidiary of the Company. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities may declare the principal of and interest on all the
Securities to be immediately due and payable, except that in the case of an
Event of Default arising from certain events of bankruptcy, insolvency or
reorganization of the Company or any Guarantor, all outstanding Securities
become due and payable immediately without further action or notice. The amount
due and payable upon the acceleration of any Security is equal to 100% of the
principal amount thereof plus accrued interest to the date of payment. Holders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The
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Trustee may require indemnity reasonably satisfactory to it before it enforces
the Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company must furnish an annual compliance certificate to the
Trustee.
10. Discharge Prior to Maturity. The Indenture shall be discharged and
canceled upon the payment of all of the Securities and shall be discharged
except for certain obligations upon the irrevocable deposit with the Trustee of
funds or U.S. Government Obligations sufficient for such payment.
11. Trustee Dealings with Company and Guarantors. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company, the Guarantors or their respective
Affiliates, and may otherwise deal with the Company, the Guarantors or their
respective Affiliates, as if it were not Trustee.
12. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or such Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
13. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
14. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the Holders
of the Securities. No representation is made as to the accuracy of such numbers
as printed on the Securities and reliance may be placed only on the other
identification numbers printed thereon.
15. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
16. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided by Holders of Securities under the Indenture,
Holders of Transfer Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement, dated as of the Issue Date (the
"Registration Rights Agreement"), among the Company and the Initial Purchasers.
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THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE. REQUEST MAY BE MADE TO:
BJ SERVICES COMPANY
5500 NORTHWEST CENTRAL DRIVE
HOUSTON, TEXAS 77092
ATTENTION: GENERAL COUNSEL
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FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEES
Each Guarantor (which term includes any successor Person under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture, the
due and punctual payment of the principal of and interest on the Securities and
all other amounts due and payable under the Indenture and the Securities by the
Company.
The obligations of the Guarantors to the Holders of Securities and to
the Trustee pursuant to the Guarantees and the Indenture are expressly set
forth in Article 9 of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantees.
BJ SERVICES COMPANY, U.S.A.
By:
-----------------------------------
By:
-----------------------------------
BJ SERVICE INTERNATIONAL, INC.
By:
-----------------------------------
By:
-----------------------------------
BJ SERVICES COMPANY MIDDLE EAST
By:
-----------------------------------
By:
-----------------------------------
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to_______________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:_____________ Your Signature:______________________________________
(Sign exactly as your name appears on
the face of this Security)
Signature Guarantee:____________________________________________________________
(Participant in a Recognized Signature
Guaranty Medallion Program)
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITY*
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Principal Amount
Amount of Amount of of this Global Signature of
decrease in increase in Security following authorized officer
Principal Amount Principal Amount such decrease of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
---------------- ----------------------- ----------------------- ----------------------- ------------------
- ------------------------------------------------
* This should be included only if the Security is issued in global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 7% Series [A/B] Notes due 2006 of BJ Services Company
This Certificate relates to $_____ principal amount of Securities
held in *______ book-entry or *______ definitive form by _____________________
(the "Transferor").
The Transferor**:
/ / has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Global Securities held by the Depositary a
Security or Securities in definitive, registered form equal to its beneficial
interest in such Global Securities (or the portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or register
the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relative to the above captioned Securities and that the transfer of
this Security does not require registration under the Securities Act (as
defined below) because:*
/ / Such Security is being acquired for the Transferor's own account
without transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section
2.06(d)(i)(A) of the Indenture).
/ / Such Security is being transferred (i) to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A under the
Securities Act or (ii) pursuant to an exemption from registration in accordance
with Rule 904 under the Securities Act (and in the case of clause (ii), based
on an opinion of counsel if the Company so requests and together with a
certification in substantially the form of Exhibit D to the Indenture).
/ / Such Security is being transferred (i) in accordance with Rule 144
under the Securities Act (and based on an opinion of counsel if the Company so
requests) or (ii) pursuant to an effective registration statement under the
Securities Act.
- ---------------
**Check applicable box.
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72
/ / Such Security is being transferred to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the registration
requirements of the Securities Act (and based on an opinion of counsel if the
Company so requests) together with a certification in substantially the form of
Exhibit C to the Indenture.
/ / Such Security is being transferred in reliance on and in compliance
with another exemption from the registration requirements of the Securities Act
(and based on an opinion of counsel if the Company so requests).
--------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-----------------------------------
Name:
Title:
Address:
Date:
---------------
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EXHIBIT C
FORM OF TRANSFEREE LETTER OF REPRESENTATION
TO BE DELIVERED BY INSTITUTIONAL ACCREDITED INVESTORS
BJ Services Company,
c/o Bank of Montreal Trust Company, as Trustee
77 Water Street, 4th Floor
New York, New York 10005
Dear Sirs:
In connection with the proposed transfer to us of $___________
aggregate principal amount of the 7% Notes due 2006 (the "Notes") of BJ
SERVICES COMPANY, a Delaware corporation (the "Company"), we confirm that:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or other applicable
securities laws, and may not be offered, sold or otherwise transferred except
as permitted in the following sentence. We agree on our behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is three years after the
later of the date of original issue thereof and the last date on which the
Company or any "affiliate" of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to
the Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) so long as the Notes are eligible for
resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" (a "QIB") as defined in
Rule 144A under the Securities Act that purchases for its own account or for
the account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S. persons
that occur outside the United States within the meaning of Regulation S under
the Securities Act, (e) to an institutional "accredited investor" (an
"Institutional Accredited Investor") within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring the
Notes for its own account or for the account of such an Institutional
Accredited Investor for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution in violation of the
Securities Act or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject to the Company's and
the Trustee's right prior to any such offer, sale or transfer (i) pursuant to
clause (d), (e) or (f) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to each of them and (ii)
in each of the foregoing cases to require that a certificate of transfer in the
form appearing on the Notes is completed and delivered by the transferor to the
Trustee.
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2. We are an Institutional Accredited Investor purchasing for our own
account or for the account of such an Institutional Accredited Investor for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or any other
applicable securities laws and we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment for an
indefinite period.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
Name of Transferee:
-----------------
By:
------------------------------
Date:
------------------------------
Upon transfer the Notes would be registered in the name of the new
beneficial owner as follows:
Name:
------------------------------
Address:
------------------------------
------------------------------
Taxpayer ID No:
------------------------------
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
-------------, ----
Bank of Montreal Trust Company, as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of certain 7% Series [A/B] Notes
due 2006 (the "Securities") of BJ Services Company, a Delaware corporation (the
"Company"), we represent that:
(i) the offer of the Securities was not made to a person in the
United States;
(ii) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(iii) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the U.S. Securities Act of 1933, as
applicable; and
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S under the U.S. Securities Act of 1933.
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Very truly yours,
--------------------------------------
[Name]
By:
-----------------------------------
Name:
Title:
Address:
D-2