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: September 12, 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)
Registrant s telephone number, including area code: 713/870-8100.
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Item 7. Financial Statements and Exhibits
This Form 8-K is being filed in order to file certain exhibits to
Registration Statement No. 33-58891 and such exhibits are being
incorporated into Registration Statement No. 33-58891.
SEC File or Exhibit
Exhibits Registration Number Number
--------------------------------------- ------------------- --------
1(a) Underwriting Agreement between
Browning-Ferris Industries,
Inc. and Morgan Stanley & Co.
Incorporated, CS First Boston
Corporation, Goldman, Sachs &
Co., Lehman Brothers Inc., and
J.P. Morgan Securities Inc., as
Representatives of the
Underwriters named therein,
dated September 12, 1995
4(g) Form of 7.40% Debenture due
September 15, 2035
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Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereto duly authorized.
SIGNATURE
BROWNING-FERRIS INDUSTRIES, INC.
(Registrant)
September 15, 1995. By: /s/ Gerald K. Burger
--------------------------------
Gerald K. Burger
Vice President and Secretary
BROWNING-FERRIS INDUSTRIES, INC.
$400,000,000
7.40% Debentures due September 15, 2035
UNDERWRITING AGREEMENT
September 12, 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 $400,000,000 aggregate principal amount of its
7.40% Debentures due September 15, 2035 (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 98.590% of the principal amount
thereof, together with accrued interest, if any, thereon from
September 15, 1995, to the Delivery Date:
Principal
Underwriter Amount
Morgan Stanley & Co. Incorporated . . . . . . . . . . . $ 80,000,000
CS First Boston Corporation . . . . . . . . . . . . . 80,000,000
Goldman, Sachs & Co.. . . . . . . . . . . . . . . . . 80,000,000
Lehman Brothers Inc.. . . . . . . . . . . . . . . . . 80,000,000
J.P. Morgan Securities Inc. . . . . . . . . . . . . . 80,000,000
Total. . . . . . . . . . . . . . . . . . . . . . . $400,000,000
The Underwritten Securities shall be issued under the Restated
Indenture, dated as of September 1, 1991, as amended (the
"Indenture"), between the Company and Texas Commerce Bank National
Association, as Trustee (successor to First City, Texas--Houston,
National Association, formerly First City National Bank of Houston)
(the "Trustee") and shall have the following terms:
Maturity: September 15, 2035
Interest rate: 7.40% per annum.
Interest payment dates: March 15 and September 15 of each
year, commencing March 15, 1996.
Redemption provisions: The Underwritten Securities will be
redeemable as a whole or in part, at the option of the Company at
any time, at a redemption price equal to the greater of (i) 100% of
their principal amount and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon
discounted to maturity on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Yield (as
defined in the Prospectus) plus 20 basis points, plus in each case
accrued interest to the date of redemption.
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: September 15, 1995.
Underwriting discounts and commission: .875% of the principal
amount.
Public offering price: 99.465% of the principal amount of the
Underwritten Securities, plus accrued interest, if any, from
September 15, 1995 to the Delivery Date.
Purchase price: 98.590% of the principal amount of the
Underwritten Securities, plus accrued interest, if any, from
September 15, 1995 to the Delivery Date (payable in same-day
funds).
Arrangements, if any, with respect to Delayed Delivery
Contracts: None
Information in Prospectus which has been furnished by
Underwriters for inclusion therein: The information on the cover
page of the Prospectus 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 (the
"Underwriting Agreement Provisions") shall mean the Registration
Statement on Form S-3 (No. 33-58891) filed with the Securities and
Exchange Commission on April 27, 1995 (including all documents
incorporated by reference), as amended or supplemented at the date
of the Underwriting Agreement.
Similarly, all references to "Preliminary Prospectus" in this
Underwriting Agreement and in the Underwriting Agreement Provisions
shall mean each prospectus (including all documents incorporated
therein by reference) included in the Registration Statement, 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.
The letter of Arthur Andersen & Co. referred to in
Section 10(f) of the Underwriting Agreement Provisions shall be
dated the Delivery Date, and the "subsequent specified date"
referred to in Section 10(f)(iii)(B) of the Underwriting Agreement
Provisions shall be September 8, 1995.
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 Provisions", as modified above,
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
September 12, 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 September 12, 1995, to purchase the Underwritten
Securities on the terms set forth therein."
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
J.P. MORGAN SECURITIES INC.
As Representatives of the Underwriters
By: MORGAN STANLEY & CO. INCORPORATED
By:/s/ DAVID B.D. LUMPKINS
------------------------------------
David B.D. Lumpkins
Managing Director
Accepted:
BROWNING-FERRIS INDUSTRIES, INC.
By: /s/ RONALD E. LONG
------------------------------------
Ronald E. Long
Assistant 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
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 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. $200,000,000
7.40% DEBENTURE DUE SEPTEMBER 15, 2035
GLOBAL DEBENTURE
Cusip 115885 AK1
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 Two Hundred Million Dollars ($200,000,000), on September
15, 2035 (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, beginning on
March 15, 1996, and at the Maturity Date specified above on said
principal amount, at the rate of 7.40% 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 Debenture 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 Debenture 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 Debentures not
less than ten days preceding such Special Record Date. In any case
where the date for any payment on the Debentures 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 Debenture 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 Debenture 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 Debenture is a Global Security
representing one-half of the entire principal amount of a series of
Securities designated "7.40% Debentures due September 15, 2035"
(herein called the "Debentures") issued under the Indenture.
Unless otherwise provided herein, all terms used in this Global
Debenture which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The Debentures do not have a sinking fund.
The Debentures will be redeemable as a whole or in part, at the
option of the Company at any time, at a Redemption Price equal to
the greater of (i) 100% of their principal amount and (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest thereon discounted to maturity on a
semiannual basis (assuming a 360-day year consisting of twelve 30-
day months) at the Treasury Yield plus 20 basis points, plus in
each case accrued interest to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the
rate per annum equal to the semiannual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Debentures, which
prior to 2006 will be deemed to be a 30-year Treasury security,
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining
term of the Debentures. "Independent Investment Banker" means
Morgan Stanley & Co. Incorporated or, if such firm is unwilling or
unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by
the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) on the third business day preceding such
Redemption Date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference
Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, CS First Boston Corporation, Goldman, Sachs & Co.,
Lehman Brothers Inc. and J.P. Morgan Securities Inc. and their
respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer.
Holders of Debentures to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the
date fixed for redemption.
In case an Event of Default with respect to the Debentures 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 Debentures 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 Debentures 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 Debenture 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 Debentures 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 Debenture.
No reference herein to the Indenture and no provision of this
Global Debenture or of the Indenture (including the Company's right
to defease and discharge the Debentures 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 Debenture at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
This Global Debenture 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 Debenture 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 Debentures. To the extent that this Global
Debenture is exchangeable pursuant to the preceding sentence, it
shall be exchangeable for Debentures registered in such names as
the Depositary shall direct.
Except as provided in the immediately preceding paragraph, this
Global Debenture 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 Debenture, 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 Debenture (whether or not this Global
Debenture 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
Debenture.
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 Debenture 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 Debenture, 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 Debenture 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 Debenture,
this Global Debenture 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 Debenture shall be governed by and
construed in accordance with the laws of the State of Texas.
This Global Debenture 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 September 15, 1995 BROWNING-FERRIS INDUSTRIES, INC.
TRUSTEE'S CERTIFICATE By:_______________________________
OF AUTHENTICATION Title:____________________________
This is one of the Securities Attest:___________________________
of the series designated herein Title:____________________________
referred to in the within-mentioned
Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By:________________________________
Authorized Officer
