UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report: March 14, 1995
(Date of earliest event reported)
BROWNING-FERRIS INDUSTRIES, INC.
(Exact name of registrant as specified in charter)
Commission file number 1-6805
Delaware 74-1673682
(State of Incorporation) (I.R.S. Employer Identification No.)
757 N. Eldridge
Houston, Texas 77079
(Address of Principal Executive Offices) (Zip Code)
Registrants telephone number, including area code: 713/870-8100.
Item 7. Financial Statements and Exhibits
This Form 8-K is being filed in order to file certain exhibits to
Registration Statement No. 33-51879 and Registration Statement No.
33-39432, and such exhibits are being incorporated into Registration
Statement No. 33-51879 and Registration Statement No. 33-39432.
SEC File or
Exhibits Registration Number Exhibit Number
-------- ------------------- --------------
1(a) Underwriting Agreement
between Browning-Ferris Industries,
Inc. and Lehman Brothers Inc., CS
First Boston Corporation, Goldman,
Sachs & Co., J.P. Morgan Securities
Inc. And Morgan Stanley & Co.
Incorporated as Representatives of
the Underwriters named therein,
dated March 8, 1995
4(g) Form of 7 7/8% Senior
Note due March 15, 2005
23(g) Consent of Binder Hamlyn
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused the report to be signed on its behalf
by the undersigned hereto duly authorized.
SIGNATURE
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
March 14, 1995 By: /s/ Henry L. Hirvela
-----------------------------------
Henry L. Hirvela
Vice President and Treasurer
BROWNING-FERRIS INDUSTRIES, INC.
$300,000,000
7 7/8% Senior Notes due March 15, 2005
UNDERWRITING AGREEMENT
March 8, 1995
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Dear Sirs:
We (the "Representatives") understand that Browning-Ferris Industries,
Inc., a Delaware corporation (the "Company"), proposes to issue and sell
$300,000,000 aggregate principal amount of its 7 7/8% Senior Notes due
March 15, 2005 (the "Underwritten Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally
and not jointly, the principal amount of Underwritten Securities set forth
below opposite their respective names at 99.043% of the principal amount
thereof, together with accrued interest, if any, thereon from March 15,
1995, to the Delivery Date:
Principal
Underwriter Amount
------------- -------------
Lehman Brothers Inc.. . . . . . . . . . . . . . . . . . . $ 60,000,000
CS First Boston Corporation . . . . . . . . . . . . . . . . 60,000,000
Goldman, Sachs & Co.. . . . . . . . . . . . . . . . . . . . 60,000,000
J.P. Morgan Securities Inc. . . . . . . . . . . . . . . . . 60,000,000
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . 60,000,000
------------
Total. . . . . . . . . . . . . . .. . . . . . . . . . . . $300,000,000
The Underwritten Securities shall have the following terms:
Maturity: March 15, 2005
Interest rate: 7 7/8% per annum.
Interest payment dates: March 15 and September 15 of each year,
commencing September 15, 1995.
Redemption provisions: The Underwritten Securities will not be redeemable
prior to maturity.
Sinking fund provisions: There is no sinking fund provision applicable to
the Underwritten Securities.
Other terms: The satisfaction, discharge and defeasance provisions
specified in Section 403 of the Indenture pursuant to which the
Underwritten Securities shall be issued shall be applicable to the
Underwritten Securities. In no event, however, will the Company effect
such a satisfaction, discharge and defeasance unless it delivers to the
Trustee an opinion of counsel to the effect that the holders of the
Underwritten Securities will not recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance and
that such defeasance will not otherwise alter the United States federal
income tax treatment of such holders' principal and interest payments on
the Underwritten Securities. (Such opinion must be based on a ruling of
the Internal Revenue Service or a change in United States federal income
tax law occurring after the date hereof, since such a result would not
occur under current tax law.)
Delivery Date: March 15, 1995.
Underwriting discounts and commission: .650% of the principal amount.
Public offering price: 99.693% of the principal amount of the Underwritten
Securities, plus accrued interest, if any, from March 15, 1995 to the
Delivery Date.
Purchase price: 99.043% of the principal amount of the Underwritten
Securities, plus accrued interest, if any, from March 15, 1995 to the
Delivery Date (payable in same-day funds).
Arrangements, if any, with respect to Delayed Delivery Contracts: None
Information in Prospectus Supplement which has been furnished by
Underwriters for inclusion therein: The information on the cover page of
the Prospectus Supplement relating to the price to the public and
underwriting discounts and commissions and the information set forth under
the caption "Underwriting".
Other terms and conditions: All references to "Registration Statement"
in this Underwriting Agreement and in the Underwriting Agreement Provisions
attached hereto as Exhibit A shall mean both the registration statement on
Form S-3 (No. 33-39432) filed with the Securities and Exchange Commission
on March 14, 1991 and the Registration Statement on Form S-3 (No. 33-51879)
filed with the Securities and Exchange Commission on January 12, 1994
(including all documents incorporated by reference into either), as amended
or supplemented at the date of the Underwriting Agreement (except that such
references shall mean either of such two registration statements when the
context so dictates).
Similarly, all references to "Preliminary Prospectus" in this Underwriting
Agreement and in the Underwriting Agreement Provisions attached hereto as
Exhibit A shall mean each prospectus (including all documents incorporated
therein by reference) included in both Registration Statements, or
amendments or supplements thereof, before each became effective under the
Act, including any prospectus filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations (except, if at all, that such references
shall mean either of such two preliminary prospectuses when the context so
dictates).
All the provisions contained in Exhibit A to Exhibit 1(b) to the Company's
Registration Statement on Form S-3 (No. 33-51879) entitled "Browning-Ferris
Industries, Inc. Debt Securities Underwriting Agreement Basic Provisions"
are herein incorporated by reference in their entirety and shall be deemed
to be a part of this Underwriting Agreement to the same extent as if such
provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer no later than 7:00 o'clock P.M. on March 8, 1995,
by signing a copy of this Underwriting Agreement in the space set forth
below and returning the signed copy to us, or by sending us a written
acceptance in the following form:
"We hereby accept your offer, set forth in the Underwriting Agreement,
dated March 8, 1995 to purchase the Underwritten Securities on the terms
set forth therein."
Very truly yours,
LEHMAN BROTHERS INC.
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the Underwriters
By: LEHMAN BROTHERS INC.
By: /s/ Mary Louise deVeer
---------------------------
Mary Louise deVeer
Managing Director
Accepted:
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ Henry Hirvela
------------------------------
Henry Hirvela
Vice President and Treasurer
EXHIBIT A
BROWNING-FERRIS INDUSTRIES, INC.
Debt Securities
UNDERWRITING AGREEMENT PROVISIONS
Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell certain of its Debt Securities (the "Securities")
in one or more offerings on terms determined at the time of sale. The
Securities will be issued under a Restated Indenture, dated as of September
1, 1991, as amended between the Company and Texas Commerce Bank, National
Association, as Trustee (successor trustee to First City, Texas-Houston,
National Association, formerly First City National Bank of Houston), and an
Indenture dated as of August 1, 1987 between the Company and NationsBank
Texas, N.A., as Trustee (successor trustee to First RepublicBank Houston,
National Association) (the "Indentures").
Each issue of Securities may vary as to aggregate principal amount,
maturity date, interest rate or rates and timing of payments thereof,
redemption provisions and sinking fund requirements, if any, and any other
variable terms which the Indenture contemplates may be set forth in the
Securities as issued thereunder from time to time. The standard provisions
set forth herein may be incorporated by reference in any underwriting
agreement relating to a particular issue of Underwritten Securities (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as
this Agreement. Unless otherwise defined therein, terms defined in the
Underwriting Agreement are used herein as therein defined.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 33-51879) with respect
to the Securities has been prepared and filed by the Company in
conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has become effective. As used in
this Agreement, (i) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference)
included in that registration statement, or amendments or
supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to
Rule 424(a) of the Rules and Regulations; (ii) "Registration
Statement" means that registration statement (including all
documents incorporated therein by reference), as amended or
supplemented at the date of the Underwriting Agreement; (iii)
"Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in Registration
Statement; (iv) "Prospectus" means the Basic Prospectus, together
with any prospectus amendment or supplement (including in each
case all documents incorporated therein by reference) specifically
relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations (other than an Interim Prospectus); and (v) "Interim
Prospectus" means any preliminary form of Prospectus specifically
relating to the Underwritten Securities, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing
or suspending the use of the Prospectus.
(b) The Registration Statement contains, and the Prospectus contains
and will contain at all times during the period specified in
Paragraph 7(c), all statements which are required by the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
under such Acts; the Indenture, including any amendments and
supplements thereto, conforms with the requirements of and has
been duly qualified under, the Trust Indenture Act and the rules
and regulations of the Commission thereunder; the Registration
Statement, as of its effective date, did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus does not and will not
at any time during the period specified in Paragraph 7(c),
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the Company
makes no representation or warranty as to (i) information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for use in
connection with the preparation thereof or (ii) that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification under the Trust Indenture Act
Form T-1) of the Trustee.
(c) The accountants who have certified or shall certify the financial
statements of the Company included in the Company's most recent
Annual Report on Form 10-K which is incorporated by reference in
the Prospectus (the "Form 10-K"), are independent accountants,
as required by the Act and the Rules and Regulations.
(d) The consolidated financial statements filed as part of or
incorporated by reference in the Registration Statement present
fairly, and the consolidated financial statements included in
any Preliminary Prospectus, any Interim Prospectus or the
Prospectus present and will present fairly at all times during
the period specified in Paragraph 7(c), the financial position,
results of operations, stockholders' equity and cash flow of the
entities purported to be shown thereby, as of the respective dates
of, and for the respective periods covered by, such financial
statements, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved and comply and will comply as to form in all material
respects with the Act, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder. The term
"financial statements" includes the financial statements and the
accompanying notes and schedules.
(e) The Company and each of its consolidated subsidiaries (the
"Subsidiaries") have been duly incorporated, are validly existing
as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership of property
or the conduct of their respective businesses requires
qualification (except where the failure to be in good standing or
to qualify would not have a material adverse effect upon the
Company and its subsidiaries taken as a whole). The Company has
all requisite power and authority necessary to enter into this
Agreement, any Delayed Delivery Contracts (as defined in Paragraph
3) and the Indentures, and to carry out the provisions and
conditions hereof and thereof. This Agreement has been duly and
validly authorized, executed and delivered by the Company and is
a legal, valid and binding instrument of the Company.
(f) Except as set forth or contemplated in the Prospectus, there has
not been any material adverse change in the financial condition,
results of operations, business or properties of the Company and
its subsidiaries taken as a whole from that on the latest dates
as of which or during the latest period for which such financial
condition, results of operations, business or properties is set
forth in the Prospectus.
(g) Except as referred to in the Prospectus, there is no material
litigation or governmental or other proceeding pending or, to
the best of the knowledge of the Company, threatened against or
affecting, or involving the properties or business of, the
Company or any of the Subsidiaries which singly or in the
aggregate poses a material risk of adversely affecting the
transactions contemplated by the Prospectus or which would pose
a material risk of adversely affecting the financial condition,
results of operations, business or properties of the Company or
any Subsidiary to an extent material to the Company and the
Subsidiaries taken as a whole or where an adverse decision would
adversely affect the validity or enforceability of this Agreement.
(h) All contracts, agreements and other documents required to be filed
as exhibits to the Registration Statement have been filed with the
Commission.
(i) Neither the Company nor any of the Subsidiaries is in violation of
its corporate charter or by-laws or in default under any agreement,
indenture or instrument, the effect of which violation or default
would be material to the Company and its subsidiaries taken as a
whole.
(j) The execution, delivery and performance by the Company of this
Agreement and any Delayed Delivery Contracts and compliance by the
Company with the provisions of the Underwritten Securities and the
Indentures will not conflict with, result in the creation or
imposition of any lien, security interest or other encumbrance
upon any of the assets of the Company or any of the Subsidiaries
pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument to which the Company is a
party or by which it is bound where any such default would be
material to the Company and the Subsidiaries taken as a whole
or result in a violation of the corporate charter or by-laws of
the Company or any of the Subsidiaries or, to the best knowledge
of the Company, any law applicable to the Company or the
Subsidiaries the penalties for violations of which would be
material singly or in the aggregate to the Company and the
Subsidiaries taken as a whole; and except as required by the
Act, the Trust Indenture Act, the Exchange Act and applicable
state securities laws or "Blue Sky" laws of any jurisdiction,
no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the
execution, delivery and performance by the Company of this
Agreement, the Delayed Delivery Contracts, if any, and the
Indentures.
(k) On the Delivery Date (as defined in Paragraph 6), (i) each
Indenture (including all amendments thereof and supplements
thereto) will have been validly authorized, executed and
delivered by the Company and will constitute the legally binding
obligation of the Company, (ii) the Underwritten Securities will
have been validly authorized and, upon payment therefor as
provided in this Agreement, will be validly issued and
outstanding, and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture pursuant to which they are issued, and (iii) the
Underwritten Securities, and the Indenture pursuant to which
they are issued, will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(l) Since the end of its most recently completed fiscal year, the
Company has filed all documents and amendments to previously
filed documents required to be filed by it pursuant to Section
12, 13(a), 13(b), 14 or 15(d) of the Exchange Act; the documents
incorporated by reference into any Preliminary Prospectus, any
Interim Prospectus or the Prospectus have been, and (in the case
of any amendment or supplement to any such document, or any
material incorporated reference in any such document, filed with
the Commission after the date as of which this representation is
being made) will be at all times during the period specified in
Paragraph 7(c), prepared by the Company in conformity with the
applicable requirements of the Act and the Rules and Regulations
and the Exchange Act and the rules and regulations of the
Commission thereunder, and such documents have been, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed
with the Commission after the date as of which this
representation is being made) will be at all times during the
period specified in Paragraph 7(c), timely field as required
thereby.
2. The obligation of the Underwriters to purchase, and the Company to
sell, the Underwritten Securities is evidenced by an Underwriting
Agreement delivered at the time the Company determines to sell the
Underwritten Securities. The Underwriting Agreement specifies the firm
or firms which will be Underwriters, the principal amount of the
Underwritten Securities to be purchased by each Underwriter, the
purchase price to be paid by the Underwriters for the Underwritten
Securities, the public offering price, if any, of the Underwritten
Securities, whether or not the Underwriters are authorized to solicit
institutional investors to purchase Underwritten Securities pursuant
to Delayed Delivery Contracts, certain terms thereof and the
Underwriters' compensation therefor and any terms of the Underwritten
Securities not already specified in the Indenture pursuant to which
they are issued (including, but not limited to, designations,
denominations, interest rates and payment dates, maturity and
redemption provisions and sinking fund requirements). The Underwriting
Agreement specifies any details of the terms of the offering which
should be reflected in the post-effective amendment to the Registration
Statement or the supplement to the Prospectus relating to the offering
of the Underwritten Securities.
It is understood that, in making this Agreement, the Underwriters are
contracting severally and not jointly, and that their several
agreements to purchase Securities on the basis of the agreements and
representations herein contained shall be several and not joint and
shall apply only to the respective principal amounts of Securities to
be purchased by them as provided therein.
3. Any offer to purchase Underwritten Securities by institutional
investors solicited by the Underwriters for delayed delivery shall be
made pursuant to contracts substantially in the form of Exhibit I
attached hereto, with such changes therein as the Company and the
Representatives may approve (the "Delayed Delivery Contracts"). The
Company shall have the right, in its sole discretion, to approve or
disapprove each such institutional investor. Underwritten Securities
which are subject to Delayed Delivery Contracts are herein sometimes
called "Delayed Delivery Underwritten Securities" and Underwritten
Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called "Immediate Delivery Underwritten Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities
pursuant to this Agreement, the Company will pay to the
Representatives, for the account of the Underwriters, the
compensation specified in the Underwriting Agreement for arranging
the sale of Delayed Delivery Underwritten Securities. The
Underwriters shall have no responsibility with respect to the
validity or performance of any Delayed Delivery Contracts.
For the purpose of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter,
there shall be deducted from the principal amount of Underwritten
Securities to be purchased by such Underwriter as set forth in the
Underwriting Agreement that portion of the aggregate principal amount
of Delayed Delivery Underwritten Securities that the principal amount
of Underwritten Securities to be purchased by such Underwriter as set
forth in the Underwriting Agreement bears to the aggregate principal
amount of Underwritten Securities set forth therein to be purchased
by all of the Underwriters (in each case as adjusted by the
Representatives to avoid fractions of the minimum principal amount
in which the Underwritten Securities may be issued), except to the
extent that the Representatives determine, in their discretion, that
such deduction shall be otherwise than in such proportion and so
advise the Company.
4. The Company shall not be obligated to deliver any Underwritten
Securities except upon tender of payment for all Immediate Delivery
Underwritten Securities to be purchased pursuant to this Agreement
as hereinafter provided.
5. If any Underwriter defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Immediate Delivery Underwritten
Securities which the defaulting Underwriter agreed but failed to
purchase in the respective proportions which the principal amount
of Underwritten Securities set forth in the Underwriting Agreement
to be purchased by each remaining non-defaulting Underwriter set
forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining
non-defaulting Underwriters; provided that the remaining non-
defaulting Underwriters shall not be obligated to purchase any
Immediate Delivery Underwritten Securities if the aggregate principal
amount of Immediate Delivery Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 10% of the total principal amount of Underwritten Securities.
If the foregoing maximum is exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the
Representatives, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them,
all the Immediate Delivery Underwritten Securities. If the remaining
Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the Immediate Delivery Underwritten
Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the
payment of expenses as set forth in Paragraphs 7(j) and 11.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company or to the
other several Underwriters for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Immediate
Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone
the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company
or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
As used in this Agreement, the term "Underwriter" shall include any
party substituted under this Section 5 with the same effect as if it
had originally been a party to this Agreement with respect to such
Immediate Delivery Underwritten Securities.
6. Delivery of and payment for the Immediate Delivery Underwritten
Securities shall be made at such location as may be agreed upon by
the Representatives and the Company, at 10:00 A.M., New York City
time, on the fifth business day following the date of the
Underwriting Agreement (unless postponed in accordance with the
provisions of Paragraph 5 hereof), or at such other time and date
as shall be agreed upon. This date and time are sometimes referred
to as the "Delivery Date". On the Delivery Date the Company shall
deliver the Immediate Delivery Underwritten Securities to the
Representatives for the account of each Underwriter against payment
to or upon the order of the Company of the purchase price by
certified or official bank check or checks payable in New York
Clearing House (next day) funds. Upon delivery, the Immediate
Delivery Underwritten Securities shall be in definitive fully
registered form and in such denominations and registered in such
names as the Representatives shall request in writing not later
than 10:30 A.M., New York City time, on the third business day
prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Immediate Delivery Underwritten
Securities, the Company shall make the Immediate Delivery
Underwritten Securities available for inspection by the
Representatives in New York, New York, or such other place as may
be agreed upon by the Representatives and the Company, not later
than 2:00 P.M., New York City time, on the business day prior to
the Delivery Date.
7. The Company agrees:
(a) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a signed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto filed prior to the date of the Underwriting Agreement or
relating to or covering the Underwritten Securities, and a copy
of the Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Underwriters such number of the
following documents as the Representatives may reasonably
request: (i) conformed copies of the Registration Statement
(excluding exhibits other than the computation of the ratio of
earnings to fixed charges, the Indentures and this Agreement),
(ii) the Prospectus and (iii) any documents incorporated by
reference in the Prospectus, and the Company authorizes the
Underwriters and all dealers to whom any Underwritten Securities
may be offered or sold by the several Underwriters to use such
documents during the period referred to in (c) below in
connection with the sale of the Underwritten Securities in
accordance with the applicable provisions of the Act and the
Rules and Regulations;
(c) To file with the Commission, during such period following the
date of the Underwriting Agreement as, in the opinion of counsel
for the Underwriters, the Prospectus is required by law to be
delivered, any amendment or supplement to the Registration
Statement or the Prospectus that may, in the judgment of the
Company or the Representatives, be required by the act or
requested by the Commission;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to the
Registration Statement, (ii) the Prospectus or any amendment
or supplement thereto or (iii) any document incorporated by
reference in any of the foregoing or any amendment or supplement
to any such incorporated document, to furnish a copy thereof to
the Representatives and to counsel for the Underwriters and,
with respect to any such filing prior to the Delivery Date,
obtain the consent of the Representatives to the filing, which
consent shall not be unreasonably withheld;
(e) To advise the Representatives promptly (i) when any post-
effective amendment to the Registration Statement relating to
or covering the Underwritten Securities becomes effective, (ii)
of any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement (insofar
as the amendment or supplement relates to or covers the
Underwritten Securities), to the Prospectus, to any document
incorporated by reference in any of the foregoing or for any
additional information relating to the Registration Statement
(insofar as such information relates to or covers the
Underwritten Securities), (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the Prospectus or
any document incorporated therein by reference or the initiation
or threat of any stop order proceeding or of any challenge to
the accuracy or adequacy of any document incorporated by
reference in the Prospectus and (iv) of receipt by the Company
of any notification with respect to the suspension of the
qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for
that purpose. In case of the happening at any time during the
period referred to in (c) above of any event which materially
affects the Company or the Underwritten Securities and which
should be set forth in a supplement to or an amendment of the
Prospectus relating to the Underwritten Securities in order to
make the statements therein not misleading, the Company agrees
to prepare and furnish to the several Underwriters at its own
expense such amendment or amendments to such Prospectus as will
correct such Prospectus so that as corrected it will not contain,
or such supplement or supplements to such Prospectus which when
read in conjunction with such Prospectus will make the combined
information not contain, any untrue statement of a material fact
or omit to state any material fact necessary in order to make
the statements in such Prospectus, in light of the circumstances
under which they were made, not misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain
the lifting of that order at the earliest possible time;
(g) As soon as practicable, in accordance with Rule 158 under the
Act, to make generally available to the holders of Securities and
to deliver to the Representatives an earnings statement (which
need not be audited), conforming with the requirements of Section
11(a) of the Act, covering a period of at least 12 months
beginning after the effective date of the Registration Statement;
(h) For a period of three years after the Delivery Date for the
Underwritten Securities, to furnish to each of the Representatives
copies of all public reports and all reports and financial
statements furnished by the Company to the New York Stock
Exchange, Inc. pursuant to requirements of or agreements with
such Exchange or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer and
sale under the securities laws of such jurisdictions as the
Representatives may reasonably request, provided that the Company
shall not be required to register or qualify as a foreign
corporation nor, except as to matters relating to the offer and
sale of the Underwritten Securities, take any action which would
subject it to service of process generally in any jurisdiction,
or to the imposition of any taxes based on, or measured by, all
or any part of the income of the Company, in any jurisdiction
where it is not at such date so subject;
(j) To pay all costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities; the costs incident
to the preparation, printing and filing under the Act of the
Registration Statement and any amendments, supplements and
exhibits thereto; the costs incident to the preparation, printing
and filing of any document and any amendments and exhibits thereto
required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statement as originally
filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, the Prospectus
and any documents incorporated by reference in any of the
foregoing documents; the costs of printing this Agreement, any
Agreement Among Underwriters and the Delayed Delivery Contracts,
if any; fees paid in connection with any filings with the
National Association of Securities Dealers, Inc.; fees paid to
rating agencies in connection with the rating of the Securities,
including the Underwritten Securities; the fees and expenses of
qualifying the Securities, including the Underwritten Securities,
under the securities laws of the several jurisdictions as provided
in this Paragraph and of preparing and printing a Blue Sky
Memorandum, and a memorandum concerning the legality of the
Securities, including the Underwritten Securities, as an
investment (including reasonable fees of counsel to the
Underwriters in connection therewith); and all other costs and
expenses incident to the performance of the Company's obligations
under this Agreement; provided, that, except as provided in this
Paragraph and in Paragraph 11, the Underwriters shall pay all
their own costs and expenses, including the fees and expenses of
their counsel, any transfer taxes on the Underwritten Securities
which they may sell and the expenses of advertising any offering
of the Underwritten Securities made by the Underwriters; and
(k) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments
to previously filed documents, required to be filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
8. (a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any
of them may become subject under the Act or otherwise insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, as of its effective
date or as of the effective date of any post-effective
amendment thereof, or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any Interim Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto,
or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading, and reimburse
each such indemnified party upon demand for any legal or
other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage,
liability or action and shall, if requested by any such
indemnified party, assume the defense of such indemnified
party in any action based upon allegations of any such loss,
claim, damage or liability, with counsel satisfactory to such
indemnified party; provided, however, that the Company will
not be liable in any such case (i) to the extent that any
such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives expressly for use in connection
with the preparation of the Registration Statement or (ii)
with respect to the Prospectus, if used outside the period
during which the Underwriters are authorized to use the same
or (iii) with respect to any Preliminary Prospectus, if such
statement or omission was contained or made in any Preliminary
Prospectus and corrected in the Prospectus and (x) the loss,
claim, damage or liability suffered or incurred by any
Underwriter (or any person who controls any Underwriter)
resulted from an action, claim, or suit by any person who
purchased Underwritten Securities which are the subject
thereof from such Underwriter in the offering, and (y)
such Underwriter failed to deliver or provide a copy of
the Prospectus to such person at or prior to the confirmation
of the sale of Underwritten Securities in any case where such
delivery is required by the Act (unless such failure is the
result of non-compliance by the Company with subparagraph
(b) of Paragraph 7). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls
the Company within the meaning of the Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act or
otherwise insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as of its effective
date or as of the effective date of any post-effective amendment
thereof, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, any
Interim Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent,
that the same was made therein in reliance upon and in
conformity with written information furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement, and reimburse each such indemnified party
upon demand for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such
loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Paragraph 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Paragraph 8,
notify the indemnifying party in writing of the commencement of
such action in sufficient time to permit the indemnifying party
to assume the defense thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this
Paragraph 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will (i) if it
is so required under subparagraph (a) of this Paragraph, assume
the defense of such action with counsel satisfactory to such
indemnified party, or (ii) if not required to assume the defense
under such paragraph (a), will be entitled to participate
therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified
party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party,
and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to
assert such legal defenses (in which case the indemnifying party
shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties, but the indemnifying
party shall not, in connection with any one such action, or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses with
respect to any period during the pendency of such action or
similar or related actions of more than one separate firm of
attorneys for all indemnified parties so named, designated in
writing by the Representatives if the indemnifying party is the
Company or by the Company if the indemnifying party is any
Underwriter. Upon the assumption by the indemnifying party of
the defense of such action pursuant to clause (i) or clause
(ii) of this subparagraph (c), and approval by the indemnified
party of counsel, the indemnifying party shall not be liable to
such indemnified party under this Paragraph 8 for any legal or
other expenses subsequently incurred by such indemnified party
in connection with the defense thereof (other than reasonable
costs of investigation) unless (x) the indemnified party shall
have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next
preceding sentence, (y) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time, or
(z) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party. The indemnifying party shall not be
liable for any settlement of any action or claim effected
without its consent which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in
subparagraph (a) or (b) of this Paragraph 8 is for any reason
held to be unavailable from an indemnifying party, then the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including any
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted) to which the Company and one
or more of the Underwriters may be subject in such proportion so
that the Underwriters are responsible for that portion
represented by the percentage that the underwriting commissions
with respect to the Underwritten Securities bears to the public
offering price, and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any Agreement Among Underwriters)
be responsible for any amount in excess of the underwriting
commission applicable to the Underwritten Securities purchased
by such Underwriter hereunder, and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Paragraph 8, each person, if any, who
controls an Underwriter within the meaning of the Act shall have
the same rights to contribution as such Underwriter, and each
person, if any, who controls the Company within the meaning of
the Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in
each case to clauses (y) and (z) of this subparagraph (d). Any
party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be
made against another party or parties under this subparagraph
(d), notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties shall
not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder
or otherwise than under this subparagraph (d).
(e) The respective indemnity and contribution agreements of the
Company and the Underwriters contained in this Paragraph 8, and
the representations and warranties of the Company contained in
Paragraph 1, shall remain operative and in full force and effect,
regardless of any termination or cancellation of this Agreement
or any investigation made by or on behalf of any Underwriter or
the Company or any director or officer or any controlling person
referred to in this Paragraph 8, and such agreement,
representations and warranties, as well as the other covenants
contained herein, shall survive the delivery of the Underwritten
Securities and any successor of any Underwriter or of the Company
or any legal representative of any such director or officer or of
any such controlling person, as the case may be, shall be entitled
to the benefits of the respective indemnity and contribution
agreements.
9. The obligations of the Underwriters under this Agreement may be
terminated by the Representatives, in their absolute discretion, by
notice given to and received by the Company prior to the delivery of
and payment for the Immediate Delivery Underwritten Securities, if,
during the period beginning on the date of the Underwriting Agreement
to and including the Delivery Date, there shall have occurred (a) any
change, or any development involving a prospective change, in or
affecting primarily the financial condition, results of operations,
business or property of the Company and its Subsidiaries taken as a
whole which has a material adverse effect on the investment quality
of the Underwritten Securities; (b) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange;
(c) a general moratorium on commercial banking activities declared
by Federal, New York State or Texas State authorities; (d) any
downgrading in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act; or (e) any material adverse change in the existing
financial, political or economic conditions in the United States,
including any effect of international conditions on the financial
markets in the United States that, in the judgment of the
Representatives, makes it impracticable or inadvisable to
commence or continue the offering of the Underwritten Securities
or to enforce contracts for the resale of the Underwritten Securities
by the Underwriters.
10. The respective obligations of the Underwriters under this Agreement
with respect to the Underwritten Securities are subject to the
accuracy in all material respects, on the date of the Underwriting
Agreement and on the Delivery Date, of the representations and
warranties of the Company contained herein, to performance by the
Company of its obligations hereunder required to be performed at
or prior to the Delivery Date, and to each of the following
additional terms and conditions applicable to the Underwritten
Securities:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement nor any order
directed to any document incorporated by reference in the
Prospectus shall have been issued and prior to that time no
stop order proceeding shall have been initiated or threatened
by the Commission, and no challenge shall have been made to
the accuracy or adequacy of any document incorporated by
reference in the Prospectus; any request of the Commission
for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been
complied with; and after the date of the Underwriting
Agreement the Company shall not have filed with the Commission
any amendment or supplement to the Registration Statement or
the Prospectus (or any document incorporated by reference
therein) without the consent of the Representatives, which
consent shall not be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration
Statement contained at the date of the Underwriting Agreement,
or that the Prospectus contained at such date or contains, an
untrue statement of a fact which, in the opinion of counsel
for the Underwriters, is material or omitted or omits to
state a fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to make
the statements therein (and in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
Underwritten Securities and the Indentures and the form of the
Registration Statement, the Prospectus (other than financial
statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all material respects to counsel
for the Underwriters, the Underwriters shall have received the
favorable opinion of counsel for the Underwriters, dated as of
the Delivery Date, with respect to such matters as the
Representatives may reasonably require, and the Company shall
have furnished to such counsel all documents and information
that it may reasonably request to enable it to pass upon such
matters.
(d) The Company shall have furnished to the Representatives, on the
Delivery Date, a certificate, dated as of the Delivery Date, of
its Chairman of the Board or the President or a Vice President
and of the chief financial officer of the Company, stating that,
to the best of their knowledge after due investigation:
(i) There is no litigation or governmental proceeding pending
or threatened of a character which would materially
adversely affect the subject matter of this Agreement or
be required to be disclosed in the Registration Statement
which is not so disclosed;
(ii) On the Delivery Date, the representations and warranties
contained in Paragraph 1 are true and correct in all
material respects, the Company has complied, in all
material respects, with all its agreements herein
contained, and the conditions to be performed by the
Company referred to in this Paragraph have been fulfilled;
and
(iii) There have been no material adverse changes in the financial
condition, results of operations, business or properties of
the Company and its subsidiaries taken as a whole, from that
shown in the Registration Statement and the Prospectus, other
than changes disclosed by or contemplated in the Registration
Statement or the Prospectus.
(e) The Company shall have furnished to the Representatives, on the
Delivery Date, the opinion of counsel for the Company, addressed
to the Representatives and in form and substance satisfactory to
the Representatives and counsel for the Underwriters, with respect
to the issuance and sale of the Underwritten Securities and such
other related matters as the Representatives may reasonably
require. In rendering such opinions, such counsel may rely
as to matters governed by the laws of other jurisdictions
(other than the United States, New York and Texas) on the
opinions of local counsel satisfactory to such counsel.
(f) You shall have received a letter, dated the date of delivery
thereof (which shall be on or prior to the date of this
Agreement) of Arthur Andersen & Co. confirming that they
are independent public accountants within the meaning of the
Act and the applicable published 1933 Act Regulations thereunder
and stating in effect that:
(i) in their opinion the financial statements examined by
them and incorporated by reference in the Registration
Statement comply in form in all material respects with the
applicable accounting requirements of the 1933 Act and the
1934 Act and the related published rules and regulations;
(ii) they have made a review of the unaudited financial statements
included or incorporated by reference in the Registration
Statement in accordance with standards established by the
American Institute of Certified Public Accountants;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements included or
incorporated by reference in the Registration Statement
do not comply in form in all material respects with the
applicable accounting requirements of the 1934 Act and
the related published rules and regulations or are not
in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements
incorporated by reference in the Registration
Statement;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date
not more than five days prior to the date of this
Agreement, there was any change in the common stock or
additional paid-in capital account or in short-term
indebtedness or long-term debt of the Company and its
subsidiaries consolidated or any decrease in
consolidated common stockholders' equity, as compared
with amounts shown on the latest consolidated balance
sheet included or incorporated by reference in the
Prospectus; or
(C) for the period from the closing date of the latest
consolidated income statement included or incorporated
by reference in the Prospectus to the closing date of
the latest available consolidated income statement
read by such accountants, or at a subsequent specified
date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with
the corresponding period of the previous year, in
consolidated revenues, or in the total or per share
amounts of consolidated net income; except in all cases
set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial
information contained in the Registration Statement (in
each case to the extent that such dollar amounts,
percentages and other financial information are derived
from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Registration Statement for purposes of this
subsection.
(g) Subsequent to the date of the Underwriting Agreement, there
shall not have been any change or other development in the
financial condition or business of the Company which, in the
reasonable judgment of the Representatives, has had or may have
materially adverse consequences for the Company or which makes
it impractical or inadvisable, in the reasonable judgment of
the Representatives, to proceed with the public offering or
the delivery of the Underwritten Securities.
11. If the Company shall fail to tender the Immediate Delivery
Underwritten Securities for delivery to the Underwriters, or if
the Underwriters shall decline to purchase the Immediate Delivery
Underwritten Securities for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of
Immediate Delivery Underwritten Securities and the solicitation
of any purchases of the Delayed Delivery Underwritten Securities,
and upon demand the Company shall pay the full amount thereof to
the Representatives. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse the
several Underwriters on account of those expenses.
12. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by the Representatives. Any notice
by the Company to the Underwriters shall be sufficient if given
in writing or by telegraph addressed to the Representatives
specified in the Underwriting Agreement, and any notice by the
Underwriters to the Company shall be sufficient if give in
writing or by telegraph addressed to the Company at 757 N.
Eldridge, Houston, Texas 77079, Attention: Secretary.
13. This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Company, and their respective successors and
assigns. This Agreement and the terms and provisions hereof are for
the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for
the benefit of any person or persons, if any, who control any
Underwriter within the meaning of the Act, and (b) the indemnity
agreement of the Underwriters contained in Paragraph 8 shall be
deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of the Act, and,
in each case, their respective legal representatives, successors
and assigns. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to
above in this Paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
contained herein. The term "successors" or the term "successors
and assigns" as used in this Agreement shall not include any
Purchaser, as such Purchaser, from any of the Underwriters of any
of the Underwritten Securities.
14. For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
15. This Agreement shall be governed by and construed in accordance with
this laws of New York applicable to contracts made and to be performed
within the State of New York. The Underwriting Agreement may be
executed in one or more counterparts and if executed in more than one
counterpart, the executed counterparts shall together constitute a
single instrument.
EXHIBIT I
BROWNING-FERRIS INDUSTRIES, INC.
[Title of Securities]
Delayed Delivery Contract
____________, 199_
Browning-Ferris Industries, Inc.
757 N. Eldridge
Houston, Texas 77079
Dear Sirs:
The undersigned hereby agrees to purchase from Browning-Ferris Industries,
Inc., a Delaware corporation (the "Company"), and the Company hereby agrees
to sell to the undersigned $_____________ principal amount of the Company's
above-captioned securities (the "Securities"), offered by the Company's
prospectus dated ____________, 199_, as supplemented by the prospectus
supplement dated ____________, 199_ (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price
of ___% of the principal amount thereof plus accrued interest from
____________, 199_ to the Delivery Date (as defined in the next paragraph)
and on the further terms and conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ____________, 199_ herein called the
"Delivery Date".
At 10:00 A.M., New York City time, on the Delivery Date, the Securities
to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of
such Securities and will make payment to the Company of the purchase
price therefor, at the office of _____________. Payment will be certified
or official bank check payable in New York Clearing House funds to or upon
the order of the Company. The Securities will be delivered in definitive
fully registered form in such authorized denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than two full business
days prior to the Delivery Date, or if the undersigned fails to make
a timely designation in the foregoing manner, in the form of one
definitive fully registered certificate representing the Securities in
the above principal amount, registered in the name of the undersigned.
This Contract will terminate and be of no further force and effect after
____________, 199_, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto and (ii) the Company shall
have sold to the Underwriters named in the Prospectus the Immediate
Delivery Underwritten Securities (as defined in the Underwriting
Agreement referred to in the Prospectus), and the Company shall have
mailed or delivered to the undersigned at its address set forth below
a notice to that effect, stating the date of the occurrence thereof,
accompanied by copies of the opinions of counsel for the Company delivered
to such Underwriters pursuant to Paragraph 10(e) of the Underwriting
Agreement Basic Provisions.
The obligation of the undersigned to accept delivery of and make payment
for the Securities on the Delivery Date will be subject to the condition
that the Securities shall not, on the Delivery Date, be an investment
prohibited by the laws of the jurisdiction to which the undersigned is
subject, the undersigned hereby representing that such an investment is
not so prohibited on the date hereof.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-
served basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company
and the undersigned when such counterpart is so mailed or delivered.
This Contract shall be governed by the laws of the State of New York.
Very truly yours,
________________________________
(Name of Purchaser)
By: ___________________________
Title: ________________________
________________________________
________________________________
Address
Accepted as of ____________, 199_
BROWNING-FERRIS INDUSTRIES, INC.
By: ___________________________
Title: ________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please Print.)
Telephone No.
(including
Name Area Code)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE RESTATED
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE RESTATED INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF SUCH DEPOSITARY OR BY A NOMINEE OF
SUCH DEPOSITARY TO SUCH DEPOSITARY OR ANOTHER NOMINEE OF SUCH DEPOSITARY
OR BY SUCH DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF SUCH
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
R- Principal Amount
BROWNING-FERRIS INDUSTRIES, INC. $150,000,000
7 7/8 % SENIOR NOTE DUE MARCH 15, 2005
GLOBAL NOTE
Cusip 115885 AH8
BROWNING-FERRIS INDUSTRIES, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to Cede & Co., as the nominee of The Depository
Trust Company, or registered assigns, the principal amount of One
Hundred Fifty Million Dollars ($150,000,000), on March 15, 2005 (the
"Maturity Date") and to pay interest (computed on the basis of a
360-day year of twelve 30- day months) on March 15 and September 15
("Interest Payment Date") in each year and at the Maturity Date
specified above on said principal amount, at the rate of 7 7/8% per
annum, from the date hereof until payment of said principal amount
has been made or duly provided for. The interest so payable on any
Interest Payment Date (other than at maturity) will be paid to the
Person in whose name this Global Note is registered at the close of
business on the last day of the month immediately preceding the month
in which such interest payment is due (a "Regular Record Date"), next
preceding such Interest Payment Date, unless the Company shall default
in the payment of interest due on any such Interest Payment Date, in
which case such defaulted interest shall be paid to the Person in
whose name this Global Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest
established by notice to the registered holders of Notes not less
than ten days preceding such Special Record Date. In any case where
the date for any payment on the Notes is not a Business Day, such
payment shall be made on the next succeeding Business Day. A Business
Day is any day that is not a Saturday or Sunday and that, in Houston,
Texas, is not a day on which banking institutions are generally
authorized or required by law or executive order to close.
Both principal of and interest on this Global Note are payable in
immediately available funds in any coin or currency of the United States
of America which at the time of payment is legal tender for the payment
of public and private debts. Payments of principal and interest will be
made in Houston, Texas, at the Corporate Trust Office of Texas Commerce
Bank National Association, or at such other office or agency of the
Company as the Company shall designate pursuant to the Indenture referred
to elsewhere herein.
This Global Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter
called the "Securities"), of the series hereinafter specified, issued or
to be issued under a Restated Indenture dated as of September 1, 1991,
as amended by indentures supplemental thereto (hereinafter called the
"Indenture"), duly executed and delivered by the Company to Texas
Commerce Bank National Association (successor trustee to First City,
Texas--Houston, National Association, formerly First City National
Bank of Houston), a banking corporation existing under the laws of
the United States of America, as trustee (hereinafter called the
"Trustee"), to which Indenture reference is hereby made for a
description of the respective rights and duties thereunder of
the Trustee, the Company and the Holders of the Securities. The
Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest at different rates,
may have different conversion prices (if any), may be subject to
different redemption provisions, may be subject to different
sinking, purchase or analogous funds, may be subject to different
covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Global Note is a Global Security representing
one-half of the entire principal amount of a series of Securities
designated "7 7/8% Senior Notes due March 15, 2005" (herein called the
"Notes") issued under the Indenture. Unless otherwise provided herein,
all terms used in this Global Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Notes do not have a sinking fund and are not subject to redemption.
In case an Event of Default with respect to the Notes shall have occurred
and be continuing, the principal hereof may be declared, and upon such
declaration shall become, immediately due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that such declaration may in certain events be waived
by the Holders of a majority in principal amount of the Notes then
Outstanding.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series to be
affected. It is also provided in the Indenture that prior to any
declaration accelerating the maturity of the Notes as a series, the
Holders of a majority in aggregate principal amount of the Securities of
such series at the time Outstanding may on behalf of the Holders of all of
the Securities of such series waive any past default with respect to the
Securities of such series under the Indenture and its consequences, except
a default in the payment of the principal of, or interest on, any of the
Securities of such series.
The Indenture provides that no Holder of any Note may enforce any remedy
under the Indenture except in the case of refusal or neglect of the
Trustee to act after notice of default and after request by the Holders
of 25% in principal amount of the Outstanding Notes in certain events
and the offer to the Trustee of security and indemnity satisfactory to
it; provided, however, that such provision shall not prevent the Holder
hereof from enforcing payment of the principal of, or interest on, this
Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture (including the Company's right to defease
and discharge the Notes pursuant to Article Four of the Indenture)
shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, and interest on, this Global
Note at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
This Global Note shall be exchangeable for Securities registered in the
names of Persons other than the Depositary or its nominee only if (i)
the Depositary notifies the Company that it is unwilling or unable to
continue as the Depositary or if at any time the Depositary ceases to
be a clearing agency registered under the United States Securities
Exchange Act of 1934, as amended, and the Company fails to appoint
a successor Depositary within 90 days after the Company receives such
notice or becomes aware of such event, (ii) the Company executes and
delivers to the Trustee a Company Order that this Global Note shall
be so exchangeable or (iii) there shall have occurred and be continuing
an Event of Default, or an event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default,
with respect to the Notes. To the extent that this Global Note is
exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Notes registered in such names as the Depositary
shall direct.
Except as provided in the immediately preceding paragraph, this Global
Note may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor of such Depositary or a nominee of
such successor.
Prior to due presentment for registration of transfer of this Global Note,
the Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Holder hereof as the absolute owner of this Global Note
(whether or not this Global Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment hereof or on account hereof (except as otherwise provided in the
Indenture), as herein provided, and for all other purposes, and neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar
shall be affected by any notice to the contrary. All payments made to or
upon the order of such Holder shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for moneys payable on this
Global Note.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests of this Global Note or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
No recourse for the payment of the principal of, or interest on, this
Global Note, or for any claims based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental
thereto or in any Note or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
Except as otherwise expressly provided in this Global Note, this Global
Note shall in all respects be entitled to all benefits, and subject to
the same terms and conditions, as definitive registered securities
authenticated and delivered under the Indenture.
The Indenture and this Global Note shall be governed by and construed in
accordance with the laws of the State of Texas.
This Global Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of March 15, 1995 BROWNING-FERRIS INDUSTRIES, INC.
TRUSTEE'S CERTIFICATE By: __________________________________
OF AUTHENTICATION Title:________________________________
This is one of the Securities of the Attest_______________________
series designated herein referred to Title:_______________________
in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By:_________________________________
Authorized Officer
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
As independent chartered accountants, we hereby consent to the
incorporation by reference of our report dated October 24, 1994
relating to the consolidated financial statements of Attwoods
plc for the year ended July 31, 1994 included in the Current
Report on Form 8-K dated January 24, 1995, as amended by Form 8-K/A,
filed by Browning-Ferris Industries, Inc., into the Browning-Ferris
Industries, Inc. previously filed Form S-8 Registration Statement File
Nos. 33-48207, 33- 41281, 33-53393 and 33-56583, Form S-3 Registration
Statement File Nos. 33-7793, 33-39432, 33-58298 and 33-51879 and Form
S-4 Registration Statement File No. 33- 52240. We also consent to all
references to our firm included in such Registration Statements.
/s/ Binder Hamlyn
Chartered Accountants
Registered Auditors
London, England
March 13, 1995
