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Proc-Type: 2001,MIC-CLEAR
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<SEC-DOCUMENT>0000899243-01-502006.txt : 20020413
<SEC-HEADER>0000899243-01-502006.hdr.sgml : 20020413
ACCESSION NUMBER: 0000899243-01-502006
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 13
CONFORMED PERIOD OF REPORT: 20010930
FILED AS OF DATE: 20011218
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BJ SERVICES CO
CENTRAL INDEX KEY: 0000864328
STANDARD INDUSTRIAL CLASSIFICATION: OIL, GAS FIELD SERVICES, NBC [1389]
IRS NUMBER: 630084140
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0930
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-10570
FILM NUMBER: 1816399
BUSINESS ADDRESS:
STREET 1: 5500 NW CENTRAL DR
CITY: HOUSTON
STATE: TX
ZIP: 77210
BUSINESS PHONE: 7134624239
MAIL ADDRESS:
STREET 1: 5500 NORTHWEST CENTRAL DR
STREET 2: 5500 NORTHWEST CENTRAL DR
CITY: HOUSTON
STATE: TX
ZIP: 77092
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<FILENAME>d10k405.txt
<DESCRIPTION>ANNUAL REPORT FOR THE PERIOD ENDING 9/30/2001
<TEXT>
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended September 30, 2001
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From to .
-----------------
Commission file number 1-10570
-----------------
BJ SERVICES COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<C> <S>
Delaware 63-0084140
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
5500 Northwest Central Drive, Houston, Texas 77092
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (713) 462-4239
-----------------
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
------------------- -----------------------------------------
Common Stock $.10 par value New York Stock Exchange
Preferred Share Purchase Rights New York Stock Exchange
7% Series B Notes due 2006 New York Stock Exchange
Securities Registered Pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K ((S)229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [X]
At December 3, 2001, the registrant had outstanding 157,849,759 shares of
Common Stock, $.10 par value per share. The aggregate market value of the
Common Stock on such date (based on the closing prices in the daily composite
list for transactions on the New York Stock Exchange) held by nonaffiliates of
the registrant was approximately $4.5 billion.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of Registrant's Proxy Statement for the Annual Meeting of
Stockholders to be held January 24, 2002 are incorporated by reference into
Part III.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<C> <S> <C>
PART I
Item 1. Business............................................................. 3
Item 2. Properties........................................................... 14
Item 3. Legal Proceedings.................................................... 14
Item 4. Submission of Matters to a Vote of Security Holders.................. 14
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters 15
Item 6. Selected Financial Data.............................................. 16
Item 7. Management's Discussion and Analysis of Financial Condition and and
Results of Operations.............................................. 17
Item 7A. Quantitative and Qualitative Disclosures about Market Risk........... 24
Item 8. Financial Statements and Supplementary Data.......................... 25
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure............................................... 51
PART III
Item 10. Directors and Executive Officers of the Company...................... 51
Item 11. Executive Compensation............................................... 51
Item 12. Security Ownership of Certain Beneficial Owners and Management....... 51
Item 13. Certain Relationships and Related Transactions....................... 51
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K...... 52
</TABLE>
2
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PART I
ITEM 1. Business
General
BJ Services Company (the "Company"), whose operations trace back to the
Byron Jackson Company (which was founded in 1872), was organized in 1990 under
the corporate laws of the state of Delaware. The Company is a leading provider
of pressure pumping and other oilfield services serving the petroleum industry
worldwide. The Company's pressure pumping services consist of cementing and
stimulation services used in the completion of new oil and natural gas wells
and in remedial work on existing wells, both onshore and offshore. Other
oilfield services include product and equipment sales for pressure pumping
services, tubular services provided to the oil and natural gas exploration and
production industry, commissioning and inspection services provided to
refineries, pipelines and offshore platforms and specialty chemical services.
In April 1995, the Company completed the acquisition of The Western Company
of North America ("Western" and the "Western Acquisition"), which provided the
Company with a greater critical mass with which to better compete in domestic
and international markets and the realization of significant consolidation
benefits. The Western Acquisition increased the Company's then existing total
revenue base by approximately 75% and more than doubled the Company's domestic
revenue base at that time. In addition, in excess of $40 million in annual
overhead and redundant operating costs were eliminated by combining the two
companies.
In June 1996, the Company completed the acquisition of Nowsco Well Service
Ltd. ("Nowsco" and the "Nowsco Acquisition"). Nowsco's operations were
conducted primarily in Canada, the United States, Europe, Southeast Asia and
Argentina and included pressure pumping and commissioning and inspection
services. The Nowsco Acquisition added approximately 40% to the Company's then
existing revenue base.
During the year ended September 30, 2001, the Company generated
approximately 88% of its revenue from pressure pumping services and 12% from
product and equipment sales and other oilfield services. Over the same period,
the Company generated approximately 57% of its revenue from U.S. operations and
43% from international operations. For geographic and segment revenue details
for each of the three years ended September 30, 2001, see Note 9 of the Notes
to Consolidated Financial Statements.
Pressure Pumping Services
Cementing Services
The Company's cementing services, which accounted for approximately 31% of
total revenue during 2001, consist of blending high-grade cement and water with
various solid and liquid additives to create a slurry that is pumped into a
well between the casing and the wellbore. The additives and the properties of
the slurry are designed to achieve the proper cement set up time, compressive
strength and fluid loss control, and vary depending upon the well depth,
downhole temperatures and pressures, and formation characteristics.
The Company provides central, regional and district laboratory testing
services to evaluate slurry properties, which vary with cement supplier and
local water sources. Job design recommendations are developed by the Company's
field engineers to achieve desired compressive strength and bonding
characteristics.
There are a number of specific applications for cementing services used in
oilfield operations. The principal application is the cementing between the
casing pipe and the wellbore during the drilling and completion phase of a well
("primary cementing"). Primary cementing is performed to (i) isolate fluids
behind the casing between productive formations and other formations that would
damage the productivity of hydrocarbon producing zones or damage the quality of
freshwater aquifers, (ii) seal the casing from corrosive formation fluids, and
(iii) provide structural support for the casing string. Cementing services are
also utilized when recompleting wells from one producing zone to another and
when plugging and abandoning wells.
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Stimulation Services
The Company's stimulation services, which accounted for approximately 57% of
total revenue during 2001, consist of fracturing, acidizing, sand control,
nitrogen, coiled tubing and downhole tool services. These services are designed
to improve the flow of oil and natural gas from producing formations and are
summarized as follows:
Fracturing. Fracturing services are performed to enhance the production of
oil and natural gas from formations having such permeability that the natural
flow is restricted. The fracturing process consists of pumping a fluid gel into
a cased well at sufficient pressure to "fracture" the formation. Sand, bauxite
or synthetic proppant that is suspended in the gel is pumped into the fracture
to prop it open. The size of a fracturing job is generally expressed in terms
of pounds of proppant, which can exceed 200,000 lbs. In some cases, fracturing
is performed by an acid solution pumped under pressure without a proppant or
with small amounts of proppant. The main pieces of equipment used in the
fracturing process are a blender, which blends the proppant and chemicals into
the fracturing fluid, multiple pumping units capable of pumping significant
volumes at high pressures, and a monitoring van loaded with real time
monitoring equipment and computers used to control the fracturing process. The
Company's fracturing units are capable of pumping slurries at pressures of up
to 15,000 pounds per square inch at rates of up to four barrels per minute. In
1998, the Company embarked on a program to replace its aging fleet with new,
more efficient and higher horsepower pressure pumping equipment. The Company
has made significant progress with this program, which is now approximately 33%
complete. During 2000, the Company introduced and successfully field tested the
Gorilla(TM) pumping unit, a 2700 hydraulic horsepower frac unit that provides
the highest horsepower pump available in the service industry. During 2001, 26
Rhino fracturing pumps (2000 horsepower units) and 6 Gorilla pumping units were
placed into operation in the U.S.
An important element of fracturing services is the design of the fracturing
treatment, which includes determining the proper fracturing fluid, proppants
and injection program to maximize results. The Company's field engineering
staff provide technical evaluation and job design recommendations as an
integral element of its fracturing service for the customer. Technological
developments in the industry over the past several years have focused on
proppant concentration control (i.e., proppant density), liquid gel concentrate
capabilities, computer design and monitoring of jobs and cleanup properties for
fracturing fluids. The Company introduced equipment to respond to these
technological advances. In 1998, the Company introduced a low polymer
fracturing fluid (Vistar(TM)) designed to provide greater fracture length with
minimal polymer residue. Vistar(TM) was commercialized in 1999 and is now used
in over 50% of the Company's U.S. fracturing treatments.
Acidizing. Acidizing enhances the flow rate of oil and natural gas from
wells with reduced flow caused by formation damage from drilling or completion
fluids, or the buildup over time of materials that block the formation.
Acidizing entails pumping large volumes of specially formulated acids into
reservoirs to dissolve barriers and enlarge crevices in the formation, thereby
eliminating obstacles to the flow of oil and natural gas. The Company maintains
a fleet of mobile acid transport and pumping units to provide acidizing
services for the onshore market, and maintains acid storage and pumping
equipment on most of its offshore stimulation vessels.
Sand Control. Sand control services involve pumping gravel to fill the
cavity created around a wellbore during drilling. The gravel provides a filter
for the exclusion of formation sand from the producing pathway. Oil and natural
gas are then free to move through the gravel into the wellbore. These services
are utilized primarily in unconsolidated reservoirs, mostly in the Gulf of
Mexico, the North Sea, Venezuela, Trinidad and Indonesia.
Nitrogen. There are a number of uses for nitrogen, an inert gas, in pressure
pumping operations. Used alone, it is effective in displacing fluids in various
oilfield applications, including underbalanced drilling. However, nitrogen
services are used principally in applications supporting the Company's coiled
tubing and fracturing services.
Coiled Tubing. Coiled tubing services involve injecting coiled tubing into
wells to perform various well-servicing operations. The application of coiled
tubing to drilling operations has increased in recent years due to
4
<PAGE>
improvements in coiled tubing technology. Coiled tubing is a flexible steel
pipe with a diameter of less than five inches manufactured in continuous
lengths of thousands of feet and wound or coiled along a large reel on a truck
or skid-mounted unit. Due to the small diameter of coiled tubing, it can be
inserted through existing production tubing and used to perform workovers
without using a larger, more costly workover rig. The other principal
advantages of employing coiled tubing in a workover include (i) not having to
"shut-in" the well during such operations, thereby allowing production to
continue and reducing the risk of formation damage to the well, (ii) the
ability to reel continuous coiled tubing in and out of a well significantly
faster than conventional pipe, which must be jointed and unjointed, (iii) the
ability to direct fluids into a wellbore with more precision, allowing for
localized stimulation treatments and providing a source of energy to power a
downhole motor or manipulate downhole tools and (iv) enhanced access to remote
or offshore fields due to the smaller size and mobility of a coiled tubing
unit. Recent technological improvements have increased its dependability and
durability, expanding coiled tubing's potential uses and markets.
Downhole Tools. The Company provides downhole tools and technical personnel
for gravel pack and frac pack completions, reservoir flow testing, well
stimulation and well servicing applications from service bases on the U.S. Gulf
Coast. The Company's downhole tool capabilities fall into two
categories--completion tools and service tools. Completion tools, which are
used after a well is drilled to bring it into production, generally are sold
and remain in the well. Service tools, which are used to perform a wide range
of downhole operations to maintain or improve a well, generally are rented by
customers from the Company. While marketed separately, downhole tool sales and
services are usually provided during the course of providing other pressure
pumping services.
The Company participates in the offshore stimulation market through the use
of skid-mounted pumping units and operation of several stimulation vessels
including one in the North Sea, four in the Gulf of Mexico and five in South
America.
The Company believes that, as production continues to decline in key
producing fields of the U.S. and certain international regions, the demand for
fracturing and other stimulation services is likely to increase. Consequently,
the Company has been increasing its pressure pumping capabilities in certain
international markets over the past several years.
Other Services
The Company's other services, including product and equipment sales for
cementing and stimulation services, as well as the following services,
accounted for approximately 12% of the Company's total revenue in 2001. Product
and equipment sales are generally made in areas where pressure pumping services
are mostly provided by local service companies. Other than in its specialty
chemical business, the Company generally does not sell proprietary products to
other companies involved in well servicing.
Tubular Services. Tubular services comprise installing (or "running") casing
and production tubing into a wellbore. Casing is run to protect the structural
integrity of the wellbore and to seal various zones in the well. These services
are primarily provided during the drilling and completion phases of a well.
Production tubing is run inside the casing. Oil and natural gas are produced
through the tubing. These services are provided during the completion and
workover phases.
Process and Pipeline Services. Process and pipeline services involve
inspecting and testing the integrity of pipe connections in offshore drilling
and production platforms and onshore and offshore pipelines and industrial
plants, and are provided during the commissioning, decommissioning,
installation or construction stages of these infrastructures, as well as during
routine maintenance checks. Historically, hydrocarbon storage and production
facilities have been tested for leaks using either water under pressure or a
"live" system whereby oil, gas or water was introduced at operating pressure.
At remote locations such as offshore facilities, the volume of fresh water
required to test a facility made its use impractical and the use of flammable
or toxic fluids created a risk of
5
<PAGE>
explosion or other health hazards. Commission leak testing, or CLT, uses a
nitrogen and helium gas mixture in conjunction with certain specialized
equipment to detect very small leaks in joints, instruments and valves that
form the components of such facilities. Although the process is safer and more
practical than traditional leak detection methods, it may be more expensive.
Accordingly its use is restricted to those instances where environmental and
safety concerns are particularly acute.
Pipeline testing and commissioning services include filling, pressure
testing, de-watering, purging and vacuum drying of pipelines. Other pipeline
services include grouting and insulating pipeline bundles. Recent technical
innovations include the development of pipeline gels, both hydrocarbon and
aqueous, for pipeline cleaning and transport as well as plugs used for
isolation purposes. The Company has also developed high friction pig trains and
freezing techniques for the isolation of sections of pipelines.
In conducting its pipeline inspection business, the Company uses
"intelligent pigs." Intelligent pigs are pipeline monitoring vehicles which,
together with interpretational software, offer to pipeline operators,
constructors and regulators measurement of pipeline geometry, determination of
pipeline location and orientation and examination of the pipeline's internal
condition. In addition, the customer can develop a structural analysis using
the measured pipeline geometry information. The operator's planning is improved
through the utilization of the data to determine the pipeline's status,
estimate current and future reliability and provide recommendations on remedial
or maintenance requirements which consider the severity of the problem
identified. Analysis work using intelligent pigs can be routinely performed
with maintenance monitoring programs implemented as a method for increasing
safety for people, property and the environment.
Specialty Chemical Services. Specialty chemical services are provided to
customers in the upstream and downstream oil and natural gas businesses through
the BJ Unichem division. These services involve the design of treatments and
the sale of products to reduce the negative effects of corrosion, scale,
paraffin, bacteria, and other contaminants in the production and processing of
oil and natural gas. BJ Unichem's products are used by customers engaged in
crude oil production, natural gas processing, raw and finished oil and natural
gas product transportation, refining, fuel additizing and petrochemical
manufacturing. BJ Unichem's services address two principal priorities: (1) the
protection of the customer's capital investment in metal goods, such as
downhole casing and tubing, pipelines and process vessels, and (2) the
treatment of fluids to allow them to meet the specifications of the particular
operation, such as production transferred to a pipeline, water discharged
overboard from a platform, or fuel sold at a marketing terminal.
Operations
Pressure pumping services are provided both on land and offshore on a
24-hour, on-call basis through regional and district facilities in
approximately 200 locations worldwide. Services are provided utilizing complex
truck or skid-mounted equipment designed and constructed for the particular
pressure pumping service furnished. After equipment is moved to a well location
it is configured with appropriate connections to perform the services required.
The mobility of this equipment permits the Company to provide pressure pumping
services to wellsites in virtually all geographic areas. Management believes
that the Company's pressure pumping equipment is adequate to service both
current and projected levels of market activity in the near term.
The Company maintains a fleet of mobile cement pumping equipment for onshore
operations. Offshore operations are performed with skid-mounted cement pumping
units primarily using the Company's patented Recirculating Averaging Mixer
("RAM"). Most cementing units are equipped with computerized systems that allow
for real-time monitoring and control of the cementing processes.
Principal materials utilized in pressure pumping include cement, fracturing
proppants, acid and bulk chemical additives. Generally these items are
available from several suppliers and the Company uses more than one supplier
for each item. The Company also produces certain of its specialized pressure
pumping products through company-owned blending facilities in Germany,
Singapore and Canada. Sufficient material inventories
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are maintained to allow the Company to provide on-call services to its
customers to whom the materials are sold in the course of providing pressure
pumping services. Repair parts and maintenance items for pressure pumping
equipment are carried in inventory to ensure continued operations without
significant downtime caused by parts shortages. The Company has experienced
only intermittent tightness in supply or extended lead times in obtaining
necessary supplies of these materials or replacing equipment parts and does not
anticipate any chronic shortage of any of these items in the foreseeable future.
The Company believes that coiled tubing and other materials utilized in
performing coiled tubing services are and will continue to be widely available
from a number of manufacturers. Although there are only three principal
manufacturers of the reels around which the coiled tubing is wrapped, the
Company has not experienced any difficulty in obtaining coiled tubing reels in
the past and anticipates no such difficulty in the future.
Engineering and Support Services
The Company maintains two primary research and development centers--one in
Tomball, Texas (near Houston) and the other in Calgary, Alberta. The Company's
research and development organization is divided into five distinct
areas--Petroleum Engineering, Software Applications, Instrumentation
Engineering, Mechanical Engineering and Coiled Tubing Engineering.
Petroleum Engineering. The petroleum engineering laboratory specializes in
designing fluids with enhanced performance characteristics in the fracturing,
acidizing, sand control and cementing operations (i.e., "frac fluids" and
"cement slurries"). As fluids must perform under a wide range of downhole
pressures, temperatures and other conditions, this design process is a critical
element in developing products to meet customer needs.
Software Applications. The Company's software applications group develops
and supports a wide range of proprietary software utilized in the monitoring of
both cement and stimulation job parameters. This software, combined with the
Company's internally developed monitoring hardware, allows for real-time job
control as well as post-job analysis.
Instrumentation Engineering. The pressure pumping industry utilizes an array
of monitoring and control instrumentation as an integral element of providing
cementing and stimulation services. The Company's monitoring and control
instrumentation, developed by its instrumentation engineering group,
complements its products and equipment and provides customers with desired
real-time monitoring of critical applications.
Mechanical Engineering. Though similarities exist between the major
competitors in the general design of their pumping equipment, the actual
engine/transmission configurations as well as the mixing and blending systems
differ significantly. Additionally, different approaches to the integrated
control systems result in equipment designs which are usually distinct in
performance characteristics for each competitor. The Company's mechanical
engineering group is responsible for the design and manufacturing of virtually
all of the Company's primary pumping and blending equipment. However, some
primary pumping equipment and certain peripheral support equipment which is
generic to the industry is purchased externally. The Company's mechanical
engineering group provides new product design as well as support to the
rebuilding and field maintenance functions.
Coiled Tubing Engineering. The coiled tubing engineering group is located in
Calgary, Alberta. This group provides most of the support and research and
development activities for the Company's coiled tubing services. Development
work for drilling applications (DUCT) involves using coiled tubing directional
drilling technology for completions and directional underbalanced drilling. The
Company is also actively involved in the ongoing development of downhole tools
that may be run on coiled tubing, including rotary jetting equipment and
through-tubing inflatable packer systems.
7
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Manufacturing
In addition to the engineering facility, the Company's research and
technology center near Houston also houses its main equipment and
instrumentation manufacturing facility. This operation currently occupies
approximately 345,000 square feet and includes complete fabrication, engine and
transmission rebuilding, pump manufacturing, assembly, warehousing, laboratory,
training and engineering capabilities. The Company also has smaller
manufacturing capabilities in several international locations. The Company
employs outside vendors for manufacturing of its coiled tubing units and
certain fabrication work, but is not dependent on any one source.
Competition
Pressure Pumping Services. There are two primary companies with which the
Company competes in pressure pumping services, Halliburton Energy Services, a
division of Halliburton Company, and Dowell, a division of Schlumberger Ltd.
These companies have operations in most areas of the U.S. in which the Company
participates and in most international regions. It is estimated that, exclusive
of "captive" service companies, these two competitors, along with the Company,
provide over 90% of pressure pumping services to the industry. Several smaller
companies compete with the Company in certain areas of the U.S. and in certain
international locations. The principal methods of competition which apply to
the Company's business are its prices, service record and reputation in the
industry. While Halliburton Energy Services and Dowell are larger in terms of
overall pressure pumping revenues, the Company has the largest market share
position in certain areas.
Other Services. The Company believes that it is one of the largest suppliers
of tubular services in the U.K. North Sea and has expanded such services into
other international markets in the past several years. The largest provider of
tubular services is Weatherford International, Inc. In the U.K., tubular
services are typically provided under long-term contracts which limit the
opportunities to compete for business until the end of the contract term. In
continental Europe, shorter-term contracts are typically available for bid by
the provider of tubular services. The Company believes it is the largest
provider of commissioning and leak detection services and one of the largest
providers of pipeline inspection services. In specialty chemical services,
there are several competitors significantly larger than the BJ Unichem division.
Markets and Customers
Demand for the Company's services and products depends primarily upon the
number of oil and natural gas wells being drilled, the depth and drilling
conditions of such wells, the number of well completions and the level of
workover activity worldwide.
The Company's principal customers consist of major and independent oil and
natural gas producing companies. During 2001, the Company provided oilfield
services to several thousand customers, none of which accounted for more than
5% of consolidated revenues. While the loss of certain of the Company's largest
customers could have a material adverse effect on Company revenues and
operating results in the near term, management believes the Company would be
able to obtain other customers for its services in the event of a loss of any
of its largest customers.
United States. The United States represents the largest single oilfield
services market in the world. The Company provides its pressure pumping
services to its U.S. customers through a network of over 50 locations
throughout the U.S., a majority of which offer both cementing and stimulation
services. Demand for the Company's pressure pumping services in the U.S. is
primarily driven by oil and natural gas drilling activity, which tends to be
extremely volatile depending on the current and anticipated prices of oil and
natural gas. Due to aging oilfields and lower-cost sources of oil
internationally, drilling activity in the U.S. has declined more than 75% from
its peak in 1981. Record low drilling activity levels were experienced in 1986
and 1992 and again in 1999. Despite a recovery in the latter half of fiscal
1999, the U.S. average fiscal 1999 rig count of 601 active rigs
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represented the lowest in history. The recovery in U.S. drilling, however,
continued throughout fiscal 2000 and 2001 due to exceptionally strong oil and
natural gas prices. For the 12 months ended September 30, 2001, the active U.S.
rig count averaged 1,172 rigs, a 39% increase over fiscal 2000. Much of the
increase occurred in the number of rigs drilling for natural gas, which
increased 42% over the previous fiscal year, while the average number of rigs
drilling for oil increased 30%. Crude oil and natural gas prices have declined
over the past several months and North American drilling activity has begun to
decline. The Company's management believes that such activity will decline
further over the next three to six months.
International. The Company operates in over 40 countries in the major
international oil and natural gas producing areas of Latin America, Europe,
Africa, Russia, Southeast Asia, Canada and the Middle East. The Company
generally provides services to its international customers through wholly-owned
foreign subsidiaries. Additionally, the Company holds certain controlling and
minority interests in several joint venture companies, through which it
conducts a portion of its international operations. With the acquisition of
Fracmaster Ltd. in June 1999, the Company's Canadian operations now represent
its largest international operation with approximately 12% of consolidated
revenue in fiscal 2001.
Drilling activity outside North America is somewhat less volatile than the
U.S. market. Due to the significant investment and complexity in international
projects, management believes drilling decisions relating to such projects tend
to be evaluated and monitored with a longer-term perspective with regard to oil
and natural gas pricing. Additionally, the international market is dominated by
major oil companies and national oil companies which tend to have different
objectives and more operating stability than the typical independent producer
in the U.S. International activities have been increasingly important to the
Company's results of operations since 1992, when the Company implemented a
strategy to expand its international presence. During fiscal 2001, the Company
completed expansion projects in Saudi Arabia, Kazakhstan and West Africa.
The Company now operates in most of the major oil and natural gas producing
regions of the world. International operations are subject to special risks
that can materially affect the sales and profits of the Company, including
currency exchange rate fluctuations, the impact of inflation, governmental
expropriation, exchange controls, political instability and other risks. The
Company mitigates the risk of currency exchange rate fluctuations by invoicing
the majority of its international services in U.S. dollars.
Employees
At September 30, 2001, the Company had a total of 11,057 employees.
Approximately 61% of the Company's employees were employed outside the United
States. At September 30, 2001, the Company had a sufficient number of trained
employees to meet customer requirements, however in times of rapidly expanding
activity temporary labor shortages may occur.
Governmental and Environmental Regulation
The Company's business is affected both directly and indirectly by
governmental regulations relating to the oil and natural gas industry in
general, as well as environmental and safety regulations which have specific
application to the Company's business.
The Company, through the routine course of providing its services, handles
and stores bulk quantities of hazardous materials. In addition, leak detection
services involve the inspection and testing of facilities for leaks of
hazardous or volatile substances. If leaks or spills of hazardous materials
handled, transported or stored by the Company occur, the Company may be
responsible under applicable environmental laws for costs of remediating damage
to the surface, sub-surface or aquifers incurred in connection with such
occurrence. Accordingly, the Company has implemented and continues to implement
various procedures for the handling and disposal of hazardous materials. Such
procedures are designed to minimize the occurrence of spills or leaks of these
materials.
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<PAGE>
The Company has implemented and continues to implement various procedures to
further assure its compliance with environmental regulations. Such procedures
generally pertain to the operation of underground storage tanks, disposal of
empty chemical drums, improvement to acid and wastewater handling facilities
and cleaning of certain areas at the Company's facilities. The estimated future
cost for such procedures is $5.0 million which will be incurred over a period
of several years, and for which the Company has provided appropriate reserves.
In addition, the Company maintains insurance for certain environmental
liabilities which the Company believes is reasonable based on its knowledge of
the industry.
The Comprehensive Environmental Response, Compensation and Liability Act,
also known as "Superfund," imposes liability without regard to fault or the
legality of the original conduct, on certain classes of persons that
contributed to the release of a "hazardous substance" into the environment.
Certain third-party owned disposal facilities used by the Company or its
predecessors have been investigated under state and federal Superfund statutes,
and the Company is currently named as a potentially responsible party for
cleanup at five such sites. Although the Company's level of involvement varies
at each site, in general, the Company is one of numerous parties named and will
be obligated to pay an allocated share of the cleanup costs. While it is not
feasible to predict the outcome of these matters with certainty, management is
of the opinion that their ultimate resolution should not have a material
adverse effect on the Company's operations or financial position.
Research and Development; Patents
Research and development activities for pressure pumping services are
directed primarily toward improvement of existing products and services and the
design of new products and processes to meet specific customer needs. The
Company currently holds numerous patents relating to products and equipment
used in its pumping services business. While such patents, in the aggregate,
are important to maintaining the Company's competitive position, no single
patent is considered to be of a critical or essential nature.
To remain competitive, the Company devotes significant resources to
developing technological improvements to its pumping services products. Many of
these improvements have centered on improving products in fracturing systems
and, more recently, in deepwater cementing applications.
In 1991, the Company introduced a borate-based fracturing fluid, Spectra
Frac(R) G, which is being widely used in the U.S. stimulation market and the
North Sea. In 1993, this product was complemented with two additional
fracturing fluids, Spartan Frac(R) and Medallion Frac(R), which have expanded
the Company's services line offering to cover a broader range of economic and
downhole design variables. During 1994, the Company commercialized a
proprietary enzyme process used in conjunction with the three fracturing
fluids. These "enzyme breakers" significantly enhance the production of oil and
natural gas in a wide range of wells. During 1998, the Company introduced a low
polymer fracturing fluid (Vistar(TM)) designed to provide greater fracture
length with minimal polymer residue. This product has been successfully
utilized in a wide variety of applications since 1998. During 1999 and 2000,
the Company successfully field tested a low and mid stress range deformable
particle (FlexSand(TM)) designed to prevent proppant flowback and extend the
life of the fracturing treatment. During 2001, the Company commercialized the
FlexSand/TM/ additive globally and successfully field tested a high stress
range version of the deformable particle.
During 2000, the Company developed and successfully field tested a
continually mixed, crosslinked hydrochloric acid system, XL Acid(R). XL Acid(R)
provides deep penetration of live acid to effectively etch large areas of the
formation.
To address the trend towards more deepwater completions, the Company has
developed DeepSet(TM), a cementing system designed to handle low sea floor
temperatures, and further commercialized automated foam cementing equipment
designed to address shallow water flows typically found in deepwater
environments.
During 2000 and 2001, the Company successfully field tested and
commercialized the TST-3(TM) service packer. This packer provides the latest in
service tool technology and operational efficiency. During 2001, the
10
<PAGE>
Company successfully field tested and commercialized a composite drillable
bridge plug, the Python/TM/. The Python/TM / plug performs at temperatures to
350(degrees)F and differential pressures greater than 10,000 pounds per square
inch.
The testing and development of new products is an integral part of the
Company's pipeline inspection and coiled tubing businesses. Developments
include a MFL corrosion inspection tool; ROTO-JET(R), a tool for use in
wellbore scale removal; the SandVac/TM//Well Vac/TM/ treatment tool (a licensed
tool incorporating a hydraulic jet pump to effectively remove sand and other
particles hindering production from the wellbore); the Tornado/TM/ treatment
tool (a patent pending tool employing switchable rearward facing jets that can
be used to remove sand from deviated wellbores at much higher efficiencies than
previously obtainable); and various downhole tools and other technologies used
in directional drilling applications using coiled tubing. During 2001, the
Company globally commercialized the LEGS/TM/ (lateral entry guidance system)
tool for use with coiled tubing re-entry into vertical and horizontal wells
containing lateral wellbores. The LEGS/TM/ tool provides the technology to
locate and successfully enter laterals for workover operations in existing
wells. Additionally, the Company operates under various license arrangements,
generally ranging from 10 to 20 years in duration, relating to certain products
or techniques. None of these license arrangements is material.
The Company intends to continue to devote significant resources to its
research and development efforts. For information regarding the amounts of
research and development expenses for each of the three fiscal years ended
September 30, 2001, see Note 12 of the Notes to Consolidated Financial
Statements.
Risk Factors
This document and our other filings with the Securities and Exchange
Commission and our other materials released to the public contain
"forward-looking statements," as defined in the Private Securities Litigation
Reform Act of 1995. These forward-looking statements discuss the Company's
prospects, expected revenues, expenses and profits, strategies for its
operations and other subjects, including conditions in the oilfield service and
oil and gas industries and in the United States and international economy in
general.
Our forward-looking statements are based on assumptions that we believe to
be reasonable but that may not prove to be accurate. All of the Company's
forward-looking information is, therefore, subject to risks and uncertainties
that could cause actual results to differ materially from the results expected.
Although it is not possible to identify all factors, these risks and
uncertainties include the risk factors discussed below.
Business Risks. The Company's results of operations could be adversely
affected if its business assumptions do not prove to be accurate or if adverse
changes occur in the Company's business environment, including the following
areas:
. general global economic and business conditions,
. potential declines or increased volatility in oil and natural gas prices
that would adversely affect our customers and the energy industry,
. potential reductions in spending on exploration and development drilling
by customers in the oil and natural gas industry that would reduce demand
for our products and services,
. the actions of the Organization of the Petroleum Exporting Countries
(OPEC),
. capital and equity market conditions,
. business opportunities that may be available to and pursued by the Company,
. our ability to integrate technological advances and compete on the basis
of advanced technology,
. competition and consolidation in our businesses and
. potential higher prices for products used by the Company in its operations.
11
<PAGE>
Risks of Economic Downturn. Because of the recent economic downturn in the
United States and many foreign economies as well as hostilities following
September 11, there may be decreased demand and lower prices for oil and
natural gas and therefore for our products and services. Our customers are
generally involved in the energy industry, and if these customers experience a
business decline, we may be subject to increased exposure to credit risk. If an
economic downturn occurs, our results of operations may be adversely affected.
Risks from Operating Hazards. The Company's operations are subject to
hazards present in the oil and natural gas industry, such as fire, explosion,
blowouts and oil spills. These incidents as well as accidents or problems in
normal operations can cause personal injury or death and damage to property or
the environment. The customer's operations can also be interrupted. From time
to time, customers seek to recover from the Company for damage to their
equipment or property that occurred while the Company was performing work.
Damage to the customer's property could be extensive if a major problem
occurred. For example, operating hazards could arise:
. in the pressure pumping business, during work performed on oil and gas
wells,
. in the specialty chemical business, as a result of use of the Company's
products in refineries, and
. in the process and pipeline business, as a result of work performed by the
Company at petrochemical plants as well as on pipelines.
Risks from Unexpected Litigation. The Company has insurance coverage against
operating hazards that it believes is customary in the industry. However, the
insurance has large deductibles and exclusions from coverage. The Company's
insurance premiums can be increased or decreased based on the claims made by
the Company under its insurance policies. The insurance does not cover damages
from breach of contract by the Company or based on alleged fraud or deceptive
trade practices. Whenever possible, the Company obtains agreements from
customers that limit the Company's liability. Insurance and customer agreements
do not provide complete protection against losses and risks, and the Company's
results of operations could be adversely affected by unexpected claims not
covered by insurance.
Risks from International Operations. The Company's international operations
are subject to special risks that can materially affect the Company's sales and
profits. These risks include:
. limits on access to international markets,
. unsettled political conditions, war, civil unrest, and hostilities in some
petroleum-producing and consuming countries and regions where we operate
or seek to operate,
. fluctuations and changes in currency exchange rates,
. the impact of inflation and
. governmental action such as expropriation of assets, general legislative
and regulatory environment, exchange controls, changes in global trade
policies such as trade restrictions and embargoes imposed by the United
States and other countries, and changes in international business,
political and economic conditions.
Other Risks. Other risk factors that could cause actual results to be
different from the results we expect include:
. weather conditions that affect operating conditions in the oil and natural
gas industry,
. changes in environmental laws and other governmental regulations and
. changes in the conduct of business, logistics, supply, transportation and
security measures in effect since September 11.
Many of these risks are beyond the control of the Company. In addition,
future trends for pricing, margins, revenues and profitability remain difficult
to predict in the industries we serve and under current economic and political
conditions. We do not assume any responsibility to publicly update any of our
forward-looking statements.
12
<PAGE>
Executive Officers of the Registrant
The current executive officers of the Company and their positions and ages
are as follows:
<TABLE>
<CAPTION>
Office
Held
Name Age Position with the Company Since
- ---- --- ------------------------- ------
<S> <C> <C> <C>
J. W. Stewart...... 57 Chairman of the Board, President and Chief Executive 1990
Officer
Michael McShane.... 47 Senior Vice President--Finance and Chief Financial 1998
Officer
David Dunlap....... 40 Vice President and President--International Division 1995
James Horsch....... 49 Controller 2001
Thomas H. Koops.... 55 Vice President--Technology and Logistics 1992
Margaret B. Shannon 52 Vice President--General Counsel 1994
T. M. Whichard..... 43 Vice President and Treasurer 1998
Kenneth A. Williams 51 Vice President and President--U.S. Division 1991
Stephen A. Wright.. 54 Director of Human Resources 1987
</TABLE>
Mr. Stewart joined Hughes Tool Company in 1969 as Project Engineer. He
served as Vice President--Legal and Secretary of Hughes Tool Company and as
Vice President--Operations for a predecessor of the Company prior to being
named President of the Company in 1986. In 1990, he was also named Chairman and
Chief Executive Officer of the Company.
Mr. McShane joined the Company from Reed Tool Company in 1987 as Vice
President--Finance and was named Senior Vice President--Finance in 1998. At
Reed Tool Company he held various financial management positions including
Corporate Controller and Regional Controller of Far East Operations.
Mr. Dunlap joined the Company in 1984 as a District Engineer and was named
Vice President--International Operations in December 1995. He has previously
served as Vice President--Sales for the Coastal Division of North America and
U.S. Sales and Marketing Manager.
Mr. Horsch joined the Company as Director of Internal Audit in 1995 and
became Controller in 2001. Prior thereto, he spent 16 years in the public
accounting profession, primarily with Price Waterhouse.
Mr. Koops joined the Company as Manager--Products and Technical Services in
1976, prior to being named Vice President--Manufacturing and Logistics of the
Company in 1988 and to his current position in 1992.
Ms. Shannon joined the Company in 1994 as Vice President--General Counsel
from the law firm of Andrews & Kurth L.L.P., where she had been a partner since
1984.
Mr. Whichard joined the Company as Tax and Treasury Manager in 1989 from
Weatherford International and was named Treasurer in 1992 and Vice President in
1998. Prior to being named Treasurer in 1992, he served in various positions
including Tax Director and Assistant Treasurer.
Mr. Williams joined the Company in 1973 and has since held various positions
in the U.S. operations. Prior to being named Vice President--North American
Operations in 1991, he served as Region Manager--Western U.S. and Canada.
Mr. Wright joined the Company as Manager of Compensation and Benefits in
1985 from Global Marine Inc., an offshore drilling company, and assumed his
current position with the Company in 1987.
13
<PAGE>
ITEM 2. Properties
The Company's properties consist primarily of pressure pumping and blending
units and related support equipment such as bulk storage and transport units.
Although a portion of the Company's U.S. pressure pumping and blending fleet is
being utilized through a servicing agreement with an outside party, the
majority of its worldwide fleet is owned and unencumbered. The Company's
tractor fleet, most of which in the U.S. is leased, is used to transport the
pumping and blending units. The Company's domestic light duty truck fleet is
also leased, whereas a majority of vehicles used in its international
operations are owned by the Company.
The Company both owns and leases regional and district facilities from which
pressure pumping services and other oilfield services are provided to
land-based and offshore customers. The Company's principal executive offices in
Houston, Texas are leased. The technology and research centers located near
Houston, Texas and Calgary, Alberta are owned by the Company, as are blending
facilities located in Germany, Singapore and Canada. The Company operates
several stimulation vessels, including one in the North Sea and four in South
America which are owned, and three in the Gulf of Mexico on which the hulls are
leased. The Company believes that its facilities are adequate for its current
operations. For additional information with respect to the Company's lease
commitments, see Note 11 of the Notes to Consolidated Financial Statements.
ITEM 3. Legal Proceedings
The Company, through performance of its service operations, is sometimes
named as a defendant in litigation, usually relating to claims for bodily
injuries or property damage (including claims for well or reservoir damage).
The Company maintains insurance coverage against such claims to the extent
deemed prudent by management. The Company believes that there are no existing
claims that are likely to have a materially adverse effect on the Company for
which it has not already provided.
As a result of the Western Acquisition and the Nowsco Acquisition, the
Company assumed responsibility for certain claims and proceedings made against
Western and Nowsco in connection with their businesses. Some, but not all, of
such claims and proceedings will continue to be covered under insurance
policies of the Company's predecessors that were in place at the time of the
acquisitions. Although the outcome of the claims and proceedings against the
Company (including Western and Nowsco) cannot be predicted with certainty,
management believes that there are no existing claims or proceedings that are
likely to have a materially adverse effect on the Company. See Government and
Environmental Regulation under Item 1, Business above.
ITEM 4. Submission of Matters to a Vote of Security Holders
No matters were submitted for stockholders' vote during the fourth quarter
of the fiscal year ended September 30, 2001.
14
<PAGE>
PART II
ITEM 5. Market for Registrant's Common Equity and Related Stockholder Matters
The Common Stock of the Company began trading on The New York Stock Exchange
in July 1990 under the symbol "BJS". Warrants to purchase common stock
("Warrants") were issued in April 1995 and traded under the symbol "BJSW". The
Warrants expired on April 13, 2000. At December 3, 2001 there were
approximately 2,631 holders of record of the Company's Common Stock.
The following table sets forth for the periods indicated the high and low
sales prices per share for the Company's Common Stock and Warrants reported on
the NYSE composite tape. All amounts prior to the 2 for 1 stock split effective
May 31, 2001 have been retroactively restated to reflect the increased number
of common shares outstanding resulting from the stock split.
<TABLE>
<CAPTION>
Common Stock Warrant Price
Price Range Range
------------- --------------
High Low High Low
------ ------ ------- ------
<S> <C> <C> <C> <C>
Fiscal 2000
1st Quarter............................ $21.72 $13.35 $ 57.00 $25.00
2nd Quarter............................ 38.38 19.07 122.69 46.75
3rd Quarter............................ 37.82 26.69 119.00 83.25
4th Quarter............................ 35.38 26.50
Fiscal 2001
1st Quarter............................ 36.50 24.00
2nd Quarter............................ 43.10 30.50
3rd Quarter............................ 41.95 27.75
4th Quarter............................ 28.82 14.55
Fiscal 2002
1st Quarter (through December 3, 2001). 29.05 16.85
</TABLE>
Since its initial public offering in 1990, BJ Services has not paid any cash
dividends to its stockholders. The Company expects that, for the foreseeable
future, any earnings will be retained for the development of the Company's
business or used for the share repurchase program discussed below and,
accordingly, no cash dividends are expected to be declared on the Common Stock.
At September 30, 2001, there were 173,755,324 shares of Common Stock issued and
160,484,120 shares outstanding. On March 22, 2001, the Company's Board of
Directors approved a 2 for 1 stock split, which was effected on May 31, 2001 in
the form of a stock dividend, for holders of record on May 17, 2001. On
December 19, 1997, the Company's Board of Directors authorized a stock
repurchase program of up to $150 million (subsequently increased to $300
million in May 1998, to $450 million in September 2000 and again to $600
million in July 2001). Subsequent to September 30, 2001, the Board of Directors
approved an increase in the authorized amount to $750 million. Repurchases are
made at the discretion of the Company's management and the program will remain
in effect until terminated by the Company's Board of Directors. Under this
program, the Company has repurchased 12,792,800 shares at a cost of $219.4
million through fiscal 2000, and 7,014,200 shares at a cost of $177.5 million
during fiscal 2001. Subsequent to the end of fiscal 2001, the Company has
purchased an additional 3,741,000 shares at a cost of $83.8 million. In October
1999, the Company reissued 8,055,944 shares of treasury stock through a private
placement under Rule 144A with certain financial institutions. The proceeds
from the private placement of $144.0 million were used to pay down outstanding
debt. The Company also entered into privately negotiated option agreements
pursuant to which it repurchased an equivalent number of shares in April 2000
for a total of $149.0 million. The Company utilized proceeds of $143.5 million
from the exercise of outstanding warrants, combined with borrowings under
existing credit facilities, to fund the repurchase. A total of 4,787,852
warrants, at an exercise price of $15 per share (each warrant represented the
right to purchase two shares), were exercised before their expiration date of
April 13, 2000. The exercise of warrants resulted in the issuance of 19,151,408
shares of Common Stock.
15
<PAGE>
The Company has a Stockholder Rights Plan (the "Rights Plan") designed to
deter coercive takeover tactics and to prevent an acquirer from gaining control
of the Company without offering a fair price to all of the Company's
stockholders. Under this plan, each outstanding share of the Company's Common
Stock includes one-quarter of a preferred share purchase right ("Right") which
becomes exercisable under certain circumstances, including when beneficial
ownership of the Company's Common Stock by any person, or group, equals or
exceeds 15% of the Company's outstanding Common Stock. Each Right entitles the
registered holder to purchase from the Company one one-thousandth of a share of
Series A Junior Participating Preferred Stock at a price of $150, subject to
adjustment under certain circumstances. Upon the occurrence of certain events
specified in the Rights Plan, each holder of a Right (other than an Acquiring
Person) will have the right, upon exercise of such Right, to receive that
number of shares of common stock of the Company (or the surviving corporation)
that, at the time of such transaction, would have a market price of two times
the purchase price of the Right. No shares of Series A Junior Participating
Preferred Stock have been issued by the Company.
ITEM 6. Selected Financial Data
The following table sets forth certain selected historical financial data of
the Company. The selected operating and financial position data as of and for
each of the five years in the period ended September 30, 2001 have been derived
from the audited consolidated financial statements of the Company, some of
which appear elsewhere in this Annual Report. This information should be read
in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and the Consolidated Financial Statements
and Notes thereto which are included elsewhere herein.
<TABLE>
<CAPTION>
As of and For the Year Ended September 30,
----------------------------------------------------------
2001 2000 1999(1) 1998 1997
---------- ---------- ---------- ---------- ----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
Operating Data:
Revenue................................. $2,233,520 $1,555,389 $1,131,334 $1,527,468 $1,466,573
Operating expenses, excluding unusual
charges and goodwill amortization..... 1,683,561 1,346,667 1,092,879 1,289,295 1,269,731
Goodwill amortization................... 13,739 13,497 13,525 13,824 14,435
Unusual charges(2)...................... 39,695 26,586
Operating income (loss)................. 536,220 195,225 (14,765) 197,763 182,407
Interest expense........................ (13,282) (19,968) (31,365) (25,685) (30,715)
Other income (expense), net............. 3,676 (1,550) 613 (772) 1,727
Income tax expense (benefit)............ 179,922 57,307 (15,221) 54,654 46,462
Net income (loss)....................... 349,259 117,976 (29,688) 117,400 107,906
Earnings (loss) per share(4):...........
Basic............................... 2.13 .74 (.21) .79 .70
Diluted............................. 2.09 .70 (.21) .72 .65
Depreciation and amortization........... 104,969 102,018 99,800 91,497 90,376
Capital expenditures(3)................. 183,414 80,518 110,566 167,961 102,198
Financial Position Data (at end of period):
Property, net........................... $ 676,445 $ 585,394 659,717 $ 602,028 $ 540,356
Total assets............................ 1,985,367 1,785,233 1,824,764 1,743,701 1,726,768
Long-term debt, excluding current
maturities............................ 79,393 141,981 422,764 241,869 298,634
Stockholders' equity.................... 1,370,081 1,169,771 877,089 900,064 960,227
</TABLE>
- --------
(1) Includes the effect of the acquisition of Fracmaster in 1999, which was
accounted for as a purchase in accordance with generally accepted
accounting principles. For further details, see Note 3 of the Notes to
Consolidated Financial Statements.
(2) Unusual charges represent nonrecurring costs associated with the downturn
in oilfield drilling activity in 1999 and 1998. For further details of the
1999 unusual charges, see Note 4 of the Notes to Consolidated Financial
Statements.
(3) Excluding acquisitions of businesses.
(4) Earnings per share amounts have been restated for all periods presented to
reflect the increased number of common shares outstanding resulting from
the 2 for 1 stock splits effective January 30, 1998 and May 31, 2001.
16
<PAGE>
ITEM 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
General
The Company's worldwide operations are primarily driven by the number of oil
and natural gas wells being drilled, the depth and drilling conditions of such
wells, the number of well completions and the level of workover activity.
Drilling activity, in turn, is largely dependent on the price of crude oil and
natural gas. This situation often leads to volatility in the Company's revenues
and profitability, especially in the United States and Canada, where the
Company historically has generated in excess of 50% of its revenues.
Due to "aging" oilfields and lower-cost sources of oil internationally,
drilling activity in the United States has declined more than 75% from its peak
in 1981. Record low drilling activity levels were experienced in 1986, 1992 and
again in early 1999. Despite a recovery in the latter half of fiscal 1999, the
U.S. average fiscal 1999 rig count of 601 active rigs represented the lowest in
history. The recovery in U.S. drilling continued throughout fiscal 2000 and
2001 due to exceptionally strong oil and natural gas prices. For the 12 months
ended September 30, 2001, the active U.S. rig count averaged 1,172 rigs, a 39%
increase over fiscal 2000 and a 95% increase over fiscal 1999. Much of the
increase occurred in the number of rigs drilling for natural gas, which for
fiscal 2001 increased 42% over the previous fiscal year, while the average
number of rigs drilling for oil increased 30%. Crude oil and natural gas prices
have lowered over the past several months, however, and North American drilling
activity has begun to decline. The Company's management believes that such
activity will decline further over the next three to six months.
Drilling activity outside North America has historically been less volatile
than domestic drilling activity. International drilling activity also reached
record low levels during 1999 due to low oil prices during most of the year.
While Canadian drilling activity began to recover during the latter part of
fiscal 1999, activity in most of the other international regions did not begin
to significantly recover until the latter half of fiscal 2001. Active
international drilling rigs (excluding Canada) averaged 736 rigs during fiscal
2001, an increase of 19% over fiscal 2000. Due primarily to strong oil and
natural gas prices throughout most of fiscal 2001 Canadian drilling activity
continued the recovery begun in late 1999, averaging 365 active drilling rigs
during fiscal 2001, up 9% from the previous fiscal year. The Company expects
Canadian drilling activity in fiscal 2002 to be moderately lower than fiscal
2001 and expects drilling activity outside North America to be relatively flat
year-over-year.
Acquisition
On June 28, 1999, the Company completed the acquisition of selected assets
and subsidiaries of Fracmaster Ltd. ("Fracmaster"), an oilfield services
company based in Calgary, Alberta with operations in Canada, the United States,
Russia and China. See Note 3 of the Notes to the Consolidated Financial
Statements for additional information regarding this acquisition. The
acquisition of Fracmaster primarily impacted the Company's operations in Canada
and Russia.
17
<PAGE>
Results of Operations
The following table sets forth selected key operating statistics reflecting
industry rig count and the Company's financial results:
<TABLE>
<CAPTION>
Year Ended September 30,
-----------------------
2001 2000 1999
------ ------ ------
<S> <C> <C> <C>
Rig Count: (1)
U.S..................................................... 1,172 842 601
International........................................... 1,100 952 828
Revenue per rig (in thousands)............................. $983.0 $867.0 $791.7
Revenue per employee (in thousands)........................ $213.6 $182.9 $152.7
Percentage of gross profit to revenue (2).................. 32.0% 22.2% 13.9%
Percentage of research and engineering expense to revenue.. 1.5% 1.7% 2.1%
Percentage of marketing expense to revenue................. 2.8% 3.4% 4.4%
Percentage of general and administrative expense to revenue 3.0% 3.6% 4.1%
</TABLE>
- --------
(1) Industry estimate of drilling activity as measured by average active rigs.
(2) Gross profit represents revenue less cost of sales and services.
Revenue: Due to continued improvement in U.S. drilling activity and pricing,
along with gradually increasing international drilling activity, the Company's
revenue for fiscal 2001 reached a record level of $2.23 billion, an increase of
44% over fiscal 2000. Revenues for fiscal 2000 were $1.56 billion, an increase
of 38% over fiscal 1999 due primarily to increased North American drilling and
workover activity, as well as benefits from the acquisition of Fracmaster in
June 1999. Management expects the Company's revenues in fiscal 2002 to decrease
approximately 10-15% from the record levels in 2001 as the recent relative
weakness in natural gas and crude oil prices is expected to negatively impact
North American drilling activity.
Operating Income (Loss): Operating income for fiscal year 2001 was $536.2
million, an increase of $341.0 million over the previous fiscal year. The
Company's gross profit margins for fiscal 2001 increased to 32.0% from 22.2% in
fiscal 2000. The margin improvement was primarily a result of pricing
improvement in the U.S., better equipment utilization and labor efficiencies.
These efficiencies are reflected in the increase in both revenue per rig and
revenue per employee in fiscal 2001 compared to fiscal 2000. Partially
offsetting the improved margins were increases in research and engineering,
marketing and general and administrative expenses totaling $27.5 million due to
increased costs to support the higher revenue level and higher employee
incentive costs, which are based upon the Company's earnings and stock price
performance. Each of these operating expenses, however, declined as a
percentage of revenues.
For the year ended September 30, 2000, the Company's operating income was
$195.2 million, compared to an operating loss of $14.8 million in fiscal 1999.
The Company's gross profit margins for fiscal 2000 increased to 22.2% from
13.9% in fiscal 1999. The margin improvement was primarily a result of
increased North American drilling and workover activity, pricing improvement in
the U.S. and the impact of cost reduction programs implemented during 1999. The
1999 operating loss was primarily a result of the Company recording a pretax
unusual charge of $39.7 million ($.18 per diluted share after-tax), comprised
of $12.8 million of severance costs, $23.1 million of asset writedowns and $3.8
million of other costs associated with the downturn in the oilfield services
industry. In addition to the unusual charge, the 1999 operating loss also
included $16.7 million of costs resulting from the acquisition of Fracmaster
and additional severance costs and asset writedowns primarily associated with
the Company's international operations, which were included in cost of sales.
Research and engineering, marketing and general and administrative expenses in
total increased by $17.4 million in 2000 compared to 1999, due primarily to
higher employee incentive costs and from overhead resulting from the Fracmaster
acquisition.
Other: Interest expense in 2001 decreased by $6.7 million compared to the
previous year due to repayment of $82.7 million of debt with improved cash flow
from operations. Interest expense in 2000 decreased by $11.4
18
<PAGE>
million from 1999 due to repayment of debt with improved cash flow from
operations combined with proceeds from an equipment refinancing transaction and
a private placement of common stock, both of which were completed in the
Company's first fiscal quarter of 2000 (see also Capital Resources and
Liquidity).
Interest income in 2001 was $2.6 million compared to $1.6 million in fiscal
2000 and only $.6 million in fiscal 1999. The increase in interest income was
due to overnight investing of excess cash from operations.
Other income, net in 2001 was $3.7 million compared to other expense, net in
fiscal 2000 of $1.6 million. Included in other income in 2001 was a
non-recurring $12.9 million gain realized on the sale of a joint venture
operation in Russia. Partially offsetting this was minority interest expense
for the year of $6.8 million and a $1.7 million premium associated with the
repurchase and retirement of $46 million of the Company's 7% notes maturing in
2006. Other expense, net in fiscal 2000 consisted primarily of minority
interest expense of $3.3 million, which was partially offset by a settlement
gain of $1.5 million recognized on the conversion of a pension plan in Canada.
Income Taxes: The Company's effective tax rate has remained below the U.S.
statutory rate during each of the past three years primarily as a result of
profitability in international jurisdictions where the statutory tax rate is
less than the U.S. rate, the availability of certain nonrecurring tax benefits
and the availability of tax benefits from the Company's reorganization pursuant
to its initial public offering in 1990. The effective tax rate increased to
34.0% in 2001 from 32.7% in 2000, following a decrease from 33.9% in 1999.
U.S./Mexico Pressure Pumping Segment
The Company's U.S./Mexico pressure pumping revenues in fiscal 2001 were a
record $1.23 billion, a 65% increase over the previous year. The increase is
primarily due to increased drilling and workover activity, which increased 39%
and 18%, respectively over the prior year, along with an improvement in U.S.
pricing for the Company's products and services of approximately 20%. In
addition, revenue in the Company's Mexico operations increased by $16.9 million
in fiscal 2001 compared to 2000 as a result of a new contract. Fiscal year 2000
revenues of $743.8 million represented a 64% increase over 1999. This
improvement occurred because independent oil companies, with whom the Company
has a strong market position, contributed most of the increase in U.S. drilling
activity during that year. Also contributing to the increased U.S. revenues in
2000 was an increase in prices of approximately 16%, as the Company implemented
new price books in November 1999 and again in September 2000. As a result of
recent weakness in natural gas prices and the resulting slowdown in U.S.
drilling activity, management believes that fiscal 2002 revenue generated by
its U.S./Mexico pressure pumping operations will decline from that of fiscal
2001 by approximately 20-25%.
Operating income for the Company's U.S./Mexico pressure pumping operations
was $430.2 million, an increase of $288.3 million over fiscal 2000. The
improvement was due primarily to increased activity, improved pricing, better
equipment utilization, and labor efficiencies. Operating income for the
Company's U.S./Mexico pressure pumping operations was $141.8 million in fiscal
2000 compared to an operating loss of $3.9 million in fiscal 1999. The
improvement was due primarily to increased drilling and workover activity,
better utilization of personnel and equipment as a result of cost reduction
measures implemented in fiscal 1999 and better pricing for the Company's
products and services. The operating loss in fiscal 1999 was primarily caused
by decreased revenues resulting from the severe decline in drilling and
workover activity and corresponding lower prices for the Company's products and
services as the market contracted.
International Pressure Pumping Segment
Revenue for the Company's international pressure pumping operations was
$794.7 million in fiscal 2001, an increase of 26% compared with the previous
fiscal year. This was the result of an increase in Canadian gas drilling,
increased stimulation activity in several international regions and
contributions from geographic expansions. Each of the Company's international
regions showed year-over-year revenues increases in fiscal
19
<PAGE>
2001, with its Russia/China region up 57%, Middle East region up 50%, Asia
Pacific region up 38%, Latin America region up 25%, Europe/Africa region up 22%
and Canada region up 16%. Revenue for the Company's international pressure
pumping operations was $629.2 million in fiscal 2000, an increase of 24%
compared with fiscal 1999. This increase was due mostly to the 1999 addition of
the former Fracmaster operations in Canada and Russia and a 58% increase in
drilling activity in Canada. Excluding Canada, where revenues increased 93%,
fiscal 2000 international pressure pumping revenues increased 6% despite
average drilling activity being comparable to prior year levels. Increased
revenues in the Company's Latin America region were mostly offset by the impact
of continued weakness in drilling activity in other international areas, most
significantly in the Company's Asia Pacific operations. Revenues for the
Company's international pressure pumping operations are expected to decline
slightly in fiscal 2002 from 2001 levels due primarily to the effects of an
expected slowdown in Canadian drilling activity.
As a result of the improved activity, operating income for the Company's
international pressure pumping operations was $126.8 million for fiscal 2001,
an increase of $59.5 million over the previous year. In addition to the
increased activity, operating margins as a percentage of revenues improved from
11% in fiscal 2000 to 16% in fiscal 2001 due mostly to startup costs in
selected international locations that negatively impacted operating margins in
fiscal 2000. Operating income for the Company's international pressure pumping
operations was $67.3 million in fiscal 2000 compared to $47.3 million in fiscal
1999. The improvement was primarily due to improved Canadian business and a
non-recurring charge relating primarily to asset writedowns that reduced
operating margins for the Company's international pressure pumping operations
by $9.5 million in the third quarter of fiscal 1999. Operating income in Canada
for 2000 increased as a result of efficiencies gained through better equipment
and personnel utilization throughout the year, and from having a full year of
the former Fracmaster operations. These gains, however, were partially offset
by lower pricing outside North America, margin decreases in the Company's
Europe/Africa region due to reduced North Sea activity (where the Company's
operations have a relatively high fixed cost base), and shutdown costs incurred
in closing a facility in Germany in early 2000. Additionally, the operating
income margins for the Company's Middle East region were negatively impacted by
startup costs incurred for delayed projects.
Other Services Segment
Revenue for each of the Company's other service lines, which consist of
specialty chemicals, tubular services and process and pipeline services, were
$207.2 million in fiscal 2001, a 14% increase over the previous year. The
process and pipeline inspection service line grew by 13% on increased projects
in several regions, while tubular service revenues increased 33% through
activity improvements and expansions in the Far East and West Africa. Revenue
for the Company's specialty chemicals service line increased 5% for fiscal 2001
compared to the previous year. Revenues for these other services lines had
increased 7% in fiscal 2000 compared to the prior year due primarily to the
recovery in drilling activity levels.
Operating income for the Company's other service lines increased $11.3
million above fiscal 2000 figures to reach $29.3 million (14.1% of related
revenue) for the year ended September 30, 2001. Operating income margins in the
Company's tubular services and process and pipeline services lines benefited
most from the increased revenue as they were better able to cover their
relatively high fixed cost base. Operating income for these service lines had
declined to $17.9 million (9.8% of related revenue) in fiscal 2000 compared to
$19.0 million (11.1% of related revenue) in 1999. During fiscal 2000, operating
income margins in the Company's tubular services line suffered from the drop in
drilling activity in the North Sea as it was unable to make a corresponding
reduction in its fixed cost base. Also contributing to the operating income
decline in fiscal 2000 were job delays and higher startup costs in the process
and pipeline services group for new projects that began late in the fiscal year.
Capital Resources and Liquidity
Net cash provided from operating activities for fiscal 2001 was $517.6
million, an increase of $312.8 million from the prior year, due primarily to
higher profitability and the $130.0 million cash benefit resulting
20
<PAGE>
from utilization of U.S. tax loss carryforwards. This was partially offset by
increases in working capital, particularly accounts receivable, as a result of
the rapid revenue growth in North America. Net cash provided from operating
activities was $204.7 million in 2000, an increase of $140.3 million from 1999,
due primarily to higher profitability and non-cash U.S. tax expense.
Net cash used for investing activities in fiscal 2001 was $188.7 million,
compared to net cash provided by investing activities in 2000 of $43.7 million.
Fiscal 2001 capital spending of $183.4 million was the largest portion of the
net cash used for investing activities. Capital expenditures for fiscal 2001
increased $102.9 million from 2000 and were used to replace and enhance U.S.
fracturing equipment and expand stimulation resources internationally. The
previous year's net cash provided by investing activities was due primarily to
proceeds received from a transaction involving the transfer of certain pumping
service equipment assets in the first quarter of fiscal 2000. Subsequent to the
transfer of equipment, the Company received $120.0 million, which was used to
repay outstanding bank debt. The fiscal 2000 capital spending related primarily
to maintenance capital and U.S. offshore and international expansion.
Capital expenditures for fiscal 2002 are expected to be comparable to fiscal
2001 spending levels at approximately $170 to $185 million. The 2002 capital
program is expected to be used primarily for enhancement of U.S. fracturing
equipment and stimulation expansion internationally. The actual amount of 2002
capital expenditures will be primarily dependent on the availability of
external manufacturing capacity and expansion opportunities and is expected to
be funded by cash flows from operating activities and available credit
facilities. Management believes cash flows from operating activities and
available lines of credit, if necessary, will be sufficient to fund projected
capital expenditures.
Cash flows used for financing activities for fiscal 2001 was $251.2 million,
compared to cash flows used for financing activities in fiscal 2000 of $245.9
million. In connection with the June 2001 replacement of its existing credit
facility, the Company prepaid the remaining $30.3 million of borrowings that
were outstanding under the term loan portion of the credit facility. Also in
June 2001, the Company repurchased and retired $46 million of its 7% notes
maturing in 2006 and recorded associated debt extinguishment costs of $1.7
million (classified as other expense), consisting mainly of a $1.3 million
early payment premium. In addition to the repayment of debt during fiscal 2001,
the Company purchased 7.0 million shares of its common stock at a cost of
$177.5 million. In September 2000, the Company also repurchased 800,000 shares
of its common stock at a cost of $22.8 million under a share repurchase program
initially approved by the Company's Board of Directors in December 1997. The
share repurchase program, as amended, authorizes purchases up to $600 million,
$203.1 million of which was available for future purchase as of September 30,
2001. Subsequent to the end of the fiscal year, the Company has purchased an
additional 4.0 million shares at a cost of $91.0 million. Also following the
fiscal year end, the Board of Directors approved an increase in the authorized
amount for the share repurchase program to $750 million. Financing activities
in fiscal 2000 included a private placement of 8.1 million shares of common
stock in October 1999 that generated proceeds of $144.0 million, which was used
to pay outstanding debt. In connection with the private placement, the Company
also entered into privately negotiated option agreements pursuant to which it
repurchased an equivalent number of shares in April 2000 for a total of $149.0
million. In April 2000, the Company utilized proceeds of $143.5 million from
the exercise of outstanding warrants, combined with borrowings under existing
credit facilities, to fund the repurchase. Cash flows provided by financing
activities in 1999 were $114.6 million. The 1999 proceeds from borrowings were
used to fund the Fracmaster acquisition and the Company's capital spending
program.
Management strives to maintain low cash balances while utilizing available
credit facilities to meet the Company's capital needs. Any excess cash
generated has historically been used to pay down outstanding borrowings or fund
the Company's stock repurchase program. In June 2001, the Company replaced its
existing credit facility with a new $400 million committed line of credit
("Committed Credit Facility"). The Committed Credit Facility consists of a $200
million, 364-day commitment that renews annually at the option of the lenders
and a $200 million three-year commitment. There were no outstanding borrowings
under the Committed Credit Facility at September 30, 2001.
21
<PAGE>
In addition to the Committed Credit Facility, the Company had $119.8 million
in various unsecured, discretionary lines of credit at September 30, 2001,
which expire at various dates in 2002. There are no requirements for commitment
fees or compensating balances in connection with these lines of credit and
interest on borrowings is based on prevailing market rates. At September 30,
2001, there were $14.0 million in outstanding borrowings under these lines of
credit.
Due to repayment of borrowings from cash flows from operations, the
Company's total interest-bearing debt decreased to 6.4% of its total
capitalization at September 30, 2001 compared to 13.1% at September 30, 2000.
The Committed Credit Facility includes various customary covenants and other
provisions including the maintenance of certain profitability and solvency
ratios, none of which materially restrict the Company's activities. Management
believes that the Committed Credit Facility, combined with other discretionary
credit facilities and cash flows from operations, provides the Company with
sufficient capital resources and liquidity to manage its routine operations,
meet debt service obligations and fund projected capital expenditures. If the
discretionary lines of credit are not renewed, or if borrowings under these
lines of credit otherwise become unavailable, the Company expects to refinance
this debt by arranging additional committed bank facilities or through other
long-term borrowing alternatives.
Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board ("FASB") issued
Statement No. 133, "Accounting for Derivative Instruments and Hedging
Activities" ("SFAS 133"). SFAS 133, as amended, establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts and for hedging activities. This
statement requires that entities recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those
instruments at fair value. The adoption of SFAS 133 at the beginning of fiscal
year 2001 did not have a material impact on the Company's financial position or
results of operations.
On July 20, 2001, the FASB issued Statement No. 141, "Business Combinations"
("SFAS 141"), and Statement No. 142, "Goodwill and Other Intangible Assets"
("SFAS 142"). SFAS 141 requires all business combinations initiated after June
30, 2001 to be accounted for using the purchase method. Use of the
pooling-of-interest method is no longer permitted.
SFAS 142 requires that goodwill no longer be amortized to earnings, but
instead be reviewed for possible impairment. Goodwill amortization ceases upon
adoption of SFAS 142, which is effective for fiscal years beginning after
December 15, 2001. Early adoption is permitted for companies with fiscal years
beginning after March 15, 2001, and the Company currently intends to adopt SFAS
142 effective October 1, 2001, the beginning of its next fiscal year. The
Company's cessation of goodwill amortization under the guidelines of SFAS 142
will result in a reduction of approximately $14 million in annual operating
expenses, assuming no impairment of goodwill. The Company is still in the
process of determining the effects of implementing SFAS 142.
In August 2001, the FASB issued SFAS No. 143, "Accounting for Asset
Retirement Obligations" ("SFAS 143"). SFAS 143 requires the fair value of a
liability for an asset retirement legal obligation to be recognized in the
period in which it is incurred. When the liability is initially recorded,
associated costs are capitalized by increasing the carrying amount of the
related long-lived asset. Over time, the liability is accreted to its present
value each period, and the capitalized cost is depreciated over the useful life
of the related asset. SFAS 143 is effective for fiscal years beginning after
June 15, 2002, with earlier application encouraged. SFAS 143 requires entities
to record a cumulative effect of a change in accounting principle in the income
statement in the period of adoption. The Company plans to adopt SFAS 143 on
October 1, 2002 and is in the process of determining the effect of adoption on
its consolidated financial statements.
In August 2001, the FASB issued SFAS No. 144, "Accounting for the Impairment
or Disposal of Long-Lived Assets" ("SFAS 144"). SFAS 144 provides new guidance
on the recognition of impairment losses on long-
22
<PAGE>
lived assets to be held and used or to be disposed of and also broadens the
definition of what constitutes a discontinued operation and how the results of
a discontinued operation are to be measured and presented. SFAS 144 supercedes
SFAS No. 121 "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of" and APB Opinion No. 30, while retaining
many of the requirements of these two statements. Under SFAS 144, assets held
for sale that are a component of an entity will be included in discontinued
operations if the operations and cash flows will be or have been eliminated
from the ongoing operations of the entity and the entity will not have any
significant continuing involvement in the operations prospectively. SFAS 144 is
effective for fiscal years beginning after December 15, 2001, with early
adoption encouraged. SFAS 144 is not expected to materially change the methods
used by the Company to measure impairment losses on long-lived assets, but may
result in future dispositions being reported as discontinued operations to a
greater extent than is currently permitted. The Company plans to adopt SFAS 144
on October 1, 2002.
Forward Looking Statements
This document contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 and Section 21E of the
Securities Exchange Act of 1934 concerning, among other things, the Company's
prospects, expected revenues, expenses and profits, developments and business
strategies for its operations, all of which are subject to certain risks,
uncertainties and assumptions. These forward-looking statements are identified
by their use of terms and phrases such as "expect," "estimate," "project,"
"believe," "achievable" and similar terms and phrases. These statements are
based on certain assumptions and analyses made by the Company in light of its
experience and its perception of historical trends, current conditions,
expected future developments and other factors it believes are appropriate
under the circumstances. Such statements are subject to general economic and
business conditions, conditions in the oil and natural gas industry,
fluctuating prices of crude oil and natural gas, weather conditions that affect
conditions in the oil and natural gas industry, the business opportunities that
may be presented to and pursued by the Company, changes in law or regulations
and other factors, many of which are beyond the control of the Company. Should
one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially from those
expected, estimated or projected.
23
<PAGE>
ITEM 7A. Quantitative and Qualitative Disclosures About Market Risk
The table below provides information about the Company's market sensitive
financial instruments and constitutes a "forward-looking statement." The
Company's major market risk exposure is to foreign currency fluctuations
internationally and changing interest rates, primarily in the United States and
Europe. The Company's policy is to manage interest rates through use of a
combination of fixed and floating rate debt. If the floating rates were to
increase by 10% from September 30, 2001 rates, the Company's combined interest
expense to third parties would increase by a total of $7,000 each month in
which such increase continued. At September 30, 2001, the Company had issued
fixed-rate debt of $78.8 million. These instruments are fixed-rate and,
therefore, do not expose the Company to the risk of loss in earnings due to
changes in market interest rates. However, the fair value of these instruments
would increase by $1.8 million if interest rates were to decline by 10% from
their rates at September 30, 2001.
A portion of the Company's borrowings are denominated in foreign currencies,
which exposes the Company to market risk associated with exchange rate
movements. When necessary, the Company enters into forward foreign exchange
contracts to hedge the impact of foreign currency fluctuations. There was one
foreign exchange contract outstanding at September 30, 2001 in the amount of
$13.9 million. This contract was settled on October 1, 2001 with no gain or
loss. All items described are non-trading and are stated in U.S. dollars (in
thousands).
<TABLE>
<CAPTION>
Expected Maturity Dates Fair Value
----------------------- September 30,
2002 2003 2004 2005 Thereafter Total 2001
------ ---- ---- ---- ---------- ------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
SHORT TERM BORROWINGS
Bank borrowings; US $ denominated....... $6,177 $ 6,177 $ 6,177
Average variable interest rate--7% at
September 30, 2001....................
Bank borrowings; Norwegian Krone
denominated........................... $2,255 $ 2,255 $ 2,255
Average variable interest rate--7.64% at
September 30, 2001....................
Bank borrowings; Euro denominated....... $2,278 $ 2,278 $ 2,278
Average variable interest rate--5.08% at
September 30, 2001....................
Bank borrowings; British Pounds
denominated........................... $2,948 $ 2,948 $ 2,948
Average variable interest rate--5.31% at
September 30, 2001....................
LONG TERM BORROWINGS
Current leases; US $ denominated........ $ 318 $ 318 $ 318
Variable interest rate--6.18% at
September 30, 2001....................
Non-current leases; US $ denominated.... $301 $301 $ 602 $ 602
Variable interest rate--6.18% at
September 30, 2001....................
7% Series B Notes--US $ denominated..... $78,791 $78,791 $83,258
Fixed interest rate--7%.................
</TABLE>
24
<PAGE>
ITEM 8. Financial Statements and Supplementary Data
INDEPENDENT AUDITORS' REPORT
Stockholders of BJ Services Company:
We have audited the accompanying consolidated statements of financial
position of BJ Services Company and subsidiaries as of September 30, 2001 and
2000, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the three years in the period ended
September 30, 2001. Our audits also included the financial statement schedule
listed at Item 14. These financial statements and the financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements and the financial
statement schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of BJ Services Company and
subsidiaries at September 30, 2001 and 2000, and the results of their
operations and their cash flows for each of the three years in the period ended
September 30, 2001 in conformity with accounting principles generally accepted
in the United States of America. Also, in our opinion, such financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
DELOITTE & TOUCHE LLP
Houston, Texas
November 14, 2001
25
<PAGE>
BJ SERVICES COMPANY
CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
Year Ended September 30,
---------------------------------------
2001 2000 1999
---------- ---------- ----------
(in thousands, except per share amounts)
<S> <C> <C> <C>
Revenue............................. $2,233,520 $1,555,389 $1,131,334
Operating Expenses:
Cost of sales and services....... 1,519,722 1,210,299 973,931
Research and engineering......... 34,268 27,078 23,269
Marketing........................ 63,266 53,011 49,312
General and administrative....... 66,305 56,279 46,367
Goodwill amortization............ 13,739 13,497 13,525
Unusual charges.................. 39,695
---------- ---------- ----------
Total operating expenses..... 1,697,300 1,360,164 1,146,099
---------- ---------- ----------
Operating income (loss)............. 536,220 195,225 (14,765)
Interest expense.................... (13,282) (19,968) (31,365)
Interest income..................... 2,567 1,576 608
Other income (expense), net......... 3,676 (1,550) 613
---------- ---------- ----------
Income (loss) before income taxes... 529,181 175,283 (44,909)
Income tax expense (benefit)........ 179,922 57,307 (15,221)
---------- ---------- ----------
Net income (loss)................... $ 349,259 $ 117,976 $ (29,688)
========== ========== ==========
Earnings (Loss) Per Share:
Basic............................ $ 2.13 $ .74 $ (.21)
Diluted.......................... $ 2.09 $ .70 $ (.21)
Weighted-Average Shares Outstanding:
Basic............................ 163,885 158,508 141,578
Diluted.......................... 167,080 168,700 141,578
</TABLE>
See Notes to Consolidated Financial Statements
26
<PAGE>
BJ SERVICES COMPANY
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
ASSETS
<TABLE>
<CAPTION>
September 30,
---------------------
2001 2000
---------- ----------
(in thousands)
Current Assets:
<S> <C> <C>
Cash and cash equivalents......................... $ 84,103 $ 6,472
Receivables, less allowance for doubtful accounts:
2001, $10,376; 2000, $11,545.................... 475,715 348,106
Inventories:
Products........................................ 67,744 63,621
Work-in-process................................. 2,850 1,408
Parts........................................... 64,544 47,766
---------- ----------
Total inventories............................. 135,138 112,795
Deferred income taxes............................. 15,139 15,632
Other current assets.............................. 22,538 23,373
---------- ----------
Total current assets.......................... 732,633 506,378
Property:
Land.............................................. 12,902 12,619
Buildings and other............................... 203,266 198,066
Machinery and equipment........................... 1,005,366 863,214
---------- ----------
Total property................................ 1,221,534 1,073,899
Less accumulated depreciation..................... 545,089 488,505
---------- ----------
Property, net................................. 676,445 585,394
Goodwill, net of amortization...................... 476,795 476,237
Deferred income taxes.............................. 79,526 199,795
Investments and other assets....................... 19,968 17,429
---------- ----------
$1,985,367 $1,785,233
========== ==========
</TABLE>
See Notes to Consolidated Financial Statements
27
<PAGE>
BJ SERVICES COMPANY
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
September 30,
----------------------
2001 2000
---------- ----------
(in thousands)
<S> <C> <C>
Current Liabilities:
Accounts payable, trade....................................................... $ 190,803 $ 147,581
Short-term borrowings......................................................... 13,658 3,449
Current portion of long-term debt............................................. 318 30,651
Accrued employee compensation and benefits.................................... 67,079 48,536
Income taxes.................................................................. 20,215 15,754
Taxes other than income....................................................... 11,523 7,017
Accrued insurance............................................................. 10,593 11,557
Other accrued liabilities..................................................... 75,409 72,546
---------- ----------
Total current liabilities................................................. 389,598 337,091
Long-term debt................................................................... 79,393 141,981
Deferred income taxes............................................................ 10,172 7,966
Accrued postretirement benefits.................................................. 30,801 30,149
Other long-term liabilities...................................................... 105,322 98,275
Commitments and contingencies (Note 11)
Stockholders' Equity:
Preferred stock (authorized 5,000,000 shares, none issued)
Common stock, $.10 par value (authorized 380,000,000 shares; 173,755,324
shares issued and160,484,120 shares outstanding in 2001; 173,755,324 shares
issued and 165,296,428 shares outstanding in 2000).......................... 17,376 8,688
Capital in excess of par...................................................... 966,550 948,859
Retained earnings............................................................. 690,128 376,270
Accumulated other comprehensive income........................................ (3,633) 4,541
Unearned compensation......................................................... (4,891) (3,433)
Treasury stock, at cost (2001--13,271,204 shares; 2000--8,458,896 shares)..... (295,449) (165,154)
---------- ----------
Total stockholders' equity................................................ $1,370,081 1,169,771
---------- ----------
$1,985,367 $1,785,233
========== ==========
</TABLE>
See Notes to Consolidated Financial Statements
28
<PAGE>
BJ SERVICES COMPANY
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Accumulated
Capital Other
Common In Excess Treasury Unearned Retained Comprehensive
Stock Of Par Stock Compensation Earnings Income Total
------- --------- --------- ------------ -------- ------------- ----------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, September 30, 1998.................... $ 7,638 $765,547 $(193,804) $ (365) $313,629 $ 7,419 $ 900,064
Comprehensive income:
Net income.................................. (29,688)
Other comprehensive income, net of tax:
Cumulative translation adjustments....... (5,585)
Minimum pension liability adjustment..... 3,090
Comprehensive income........................... (32,183)
Issuance of stock for:
Warrants surrendered........................ 70 70
Reissuance of treasury stock for:
Stock options............................... 14,796 (9,750) 5,046
Stock purchase plan......................... 4,144 (2,172) 1,972
Stock performance awards.................... (2,235) 4,342 115 (2,222)
Recognition of unearned compensation........... 1,140 1,140
Revaluation of stock performance awards........ 1,504 (1,504)
Tax benefit from exercise of options........... 980 980
------- -------- --------- -------- -------- ------- ----------
Balance, September 30, 1999.................... 7,638 765,866 (170,522) (614) 269,797 4,924 877,089
Comprehensive income:
Net income.................................. 117,976
Other comprehensive income, net of tax:
Cumulative translation adjustments....... (888)
Minimum pension liability adjustment..... 505
Comprehensive income........................... 117,593
Issuance of stock for:
Warrants surrendered........................ 956 142,570 143,526
Stock options............................... 94 15,058 15,152
Treasury stock purchased....................... (171,796) (171,796)
Reissuance of treasury stock for:
Stock private placement..................... 12,003 131,997 144,000
Stock options............................... (12,003) 32,629 (5,055) 15,571
Stock purchase plan......................... 10,959 (6,171) 4,788
Stock performance awards.................... (1,302) 1,579 (277)
Recognition of unearned compensation........... 3,390 3,390
Stock performance award........................ 3,651 (3,651)
Revaluation of stock performance awards........ 2,557 (2,558) (1)
Tax benefit from exercise of options........... 20,459 20,459
------- -------- --------- -------- -------- ------- ----------
Balance, September 30, 2000.................... 8,688 948,859 (165,154) (3,433) 376,270 4,541 1,169,771
Comprehensive income:
Net income.................................. 349,259
Other comprehensive income, net of tax:
Cumulative translation adjustments....... (2,180)
Minimum pension liability adjustment..... (5,994)
Comprehensive income........................... 341,085
Reissuance of treasury stock for:
Stock options............................... (589) 37,454 (23,986) 12,879
Stock purchase plan......................... 8,052 (2,727) 5,325
Stock performance awards.................... (1,397) 1,397
Stock split................................. 8,688 (8,688)
Acquisition................................. 171 267 438
Treasury stock purchased....................... (177,465) (177,465)
Recognition of unearned compensation........... 3,165 3,165
Stock performance award........................ 4,141 (4,141)
Revaluation of stock performance awards........ 482 (482)
Tax benefit from exercise of options........... 14,883 14,883
------- -------- --------- -------- -------- ------- ----------
Balance, September 30, 2001.................... $17,376 $966,550 $(295,449) $ (4,891) $690,128 $(3,633) $1,370,081
======= ======== ========= ======== ======== ======= ==========
</TABLE>
See Notes to Consolidated Financial Statements
29
<PAGE>
BJ SERVICES COMPANY
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended September 30,
-------------------------------
2001 2000 1999
--------- --------- ---------
(in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss).................................................. $ 349,259 $ 117,976 $ (29,688)
Adjustments to reconcile net income to cash provided from operating
activities:
Depreciation and amortization................................... 104,969 102,018 99,800
Net loss on disposal of assets.................................. 41 1,451 147
Recognition of unearned compensation............................ 3,165 3,390 1,140
Deferred income tax expense (benefit)........................... 143,834 39,037 (32,866)
Unusual charge (noncash)........................................ 23,051
Minority interest............................................... 6,803 3,263 2,585
Changes in:
Receivables..................................................... (124,183) (47,808) 19,191
Accounts payable, trade......................................... 42,828 19,125 (22,444)
Inventories..................................................... (21,856) (16,928) 19,921
Other current assets and liabilities............................ 26,673 (18,028) (5,837)
Other, net...................................................... (13,975) 1,213 (10,571)
--------- --------- ---------
Net cash flows provided from operating activities.................. 517,558 204,709 64,429
Cash flows from investing activities:
Property additions................................................. (183,414) (80,518) (110,566)
Proceeds from disposal of assets................................... 13,238 127,492 7,270
Acquisitions of businesses, net of cash acquired................... (18,569) (3,240) (73,442)
--------- --------- ---------
Net cash provided from (used for) investing activities............. (188,745) 43,734 (176,738)
Cash flows from financing activities:
Proceeds from exercise of stock options and stock purchase plan.... 18,204 35,511 7,997
Proceeds from stock private placement.............................. 144,000
Proceeds from warrant exercise..................................... 143,526 70
Purchase of treasury stock......................................... (177,465) (171,796)
Proceeds from (repayment of) bank borrowings, net.................. (91,921) (397,136) 106,541
--------- --------- ---------
Net cash flows provided from (used for) financing activities....... (251,182) (245,895) 114,608
Increase in cash and cash equivalents.............................. 77,631 2,548 2,299
Cash and cash equivalents at beginning of year..................... 6,472 3,924 1,625
--------- --------- ---------
Cash and cash equivalents at end of year........................... $ 84,103 $ 6,472 $ 3,924
========= ========= =========
</TABLE>
See Notes to Consolidated Financial Statements
30
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation
BJ Services Company is a leading provider of pressure pumping and other
oilfield services to the petroleum industry. The consolidated financial
statements include the accounts of BJ Services Company and its majority-owned
subsidiaries (the "Company"). All significant intercompany balances and
transactions have been eliminated in consolidation.
All references in these financial statements and footnotes to numbers of
shares outstanding, earnings per share amounts and per share data, including
stock option and stock purchase plan information, have been restated to reflect
the 2 for 1 stock split that occurred on May 31, 2001.
Certain amounts for 2000 and 1999 have been reclassified in the accompanying
consolidated financial statements to conform to the current year presentation.
2. Summary of Significant Accounting Policies
Use of estimates: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
the disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenue and expenses during
the reporting periods. Actual results could differ from these estimates.
Cash and cash equivalents: The Company considers all highly liquid
investments purchased with original maturities of three months or less to be
cash equivalents.
Inventories: Inventories, which consist principally of (i) products which
are consumed in the Company's services provided to customers, (ii) spare parts
for equipment used in providing these services and (iii) manufactured
components and attachments for equipment used in providing services, are stated
primarily at the lower of weighted-average cost or market.
Property: Property is stated at cost less amounts provided for permanent
impairments and includes capitalized interest of $1.9 million, $1.6 million and
$2.3 million for the years ended September 30, 2001, 2000 and 1999,
respectively, on funds borrowed to finance the construction of capital
additions. Depreciation is generally provided using the straight-line method
over the estimated useful lives of individual items. Leasehold improvements are
amortized on a straight-line basis over the shorter of their estimated useful
lives or the lease terms.
Intangible assets: Goodwill represents the excess of cost over the fair
value of the net assets of companies acquired in purchase transactions.
Goodwill is being amortized on a straight-line method over periods ranging from
5 to 40 years. Patents are being amortized on a straight-line basis over their
estimated useful lives, not to exceed 17 years. Accumulated amortization of
intangible assets at September 30, 2001 and 2000 was $84.5 million and $70.6
million, respectively. The Company utilizes undiscounted estimated cash flows
to evaluate any possible impairment of intangible assets. If such cash flows
are less than the net carrying value of the intangible assets the Company
records an impairment loss equal to the difference in discounted estimated cash
flows and the net carrying value. The discount rate utilized is based on market
factors at the time the loss is determined.
See "New Accounting Pronouncements" in this note for information regarding
the effects of a new accounting pronouncement on the Company's prospective
accounting for goodwill and goodwill amortization.
31
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Investments: Investments in companies in which the Company's ownership
interest ranges from 20 to 50 percent and the Company exercises significant
influence over operating and financial policies are accounted for using the
equity method. Other investments are accounted for using the cost method.
Revenue Recognition: The Company recognizes revenue as services are rendered
or products are delivered.
Foreign currency translation: Gains and losses resulting from financial
statement translation of foreign operations where the U.S. dollar is the
functional currency are included in the consolidated statement of operations as
cost of sales. Gains and losses resulting from financial statement translation
of foreign operations where a foreign currency is the functional currency are
included as a separate component of stockholders' equity. Except in Canada, the
Company's foreign operations use the U.S. dollar as the functional currency.
Foreign exchange contracts: The Company sometimes enters into forward
foreign exchange contracts to hedge the impact of currency fluctuations on
certain assets and liabilities denominated in foreign currencies. Changes in
market value are offset against foreign exchange gains or losses on the related
assets or liabilities and are included in cost of sales and services. There was
one foreign exchange contract outstanding at September 30, 2001 in the amount
of $13.9 million and another outstanding at September 30, 2000 in the amount of
$50.6 million. These contracts were settled on October 1, 2001 and 2000,
respectively, with no gain or loss.
Environmental remediation and compliance: Environmental remediation and
compliance costs are accrued based on estimates of known environmental
exposures. Liabilities are recorded when environmental assessments and/or
remedial efforts are probable and the cost can be reasonably estimated.
Impairment of long-lived assets: Under Financial Accounting Standards Board
("FASB") Statement No. 121, "Accounting for the Impairment of Long-Lived Assets
and for Long-Lived Assets to be Disposed Of" ("SFAS 121"), the Company
recognizes impairment losses for long-lived assets used in operations when
indicators of impairment are present and the undiscounted cash flows estimated
to be generated by those assets are less than their carrying amounts. In the
year ended September 30, 1999, the Company recorded an impairment of $23.1
million against certain long-lived assets based on a decrease in the
undiscounted cash flows expected to be generated by these assets as a result of
reduced oilfield drilling activity. See Note 4.
Employee stock-based compensation: Under FASB Statement No. 123 "Accounting
for Stock-Based Compensation," the Company is permitted to either record
expenses for stock options and other stock-based employee compensation plans
based on their fair value at the date of grant or to continue to apply
Accounting Principles Board Opinion No. 25 ("APB 25") and recognize
compensation expense, if any, based on the intrinsic value of the equity
instruments at the measurement dates. The Company elected to continue following
APB 25; therefore, no compensation expense has been recognized because the
exercise prices of employee stock options equal the market prices of the
underlying stock on the dates of grant.
New accounting pronouncements: In June 1998, the FASB issued Statement No.
133, "Accounting for Derivative Instruments and Hedging Activities," as amended
("SFAS 133"). SFAS 133 established accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded in
other contracts and for hedging activities. This statement requires recognition
of all derivatives as either assets or liabilities and measurement of those
instruments at fair value. The Company's adoption of SFAS 133 at the beginning
of fiscal 2001 did not have a material impact on its financial position or
results of operations.
On July 20, 2001, the FASB issued Statement No. 141, "Business Combinations"
("SFAS 141"), and Statement No. 142, "Goodwill and Other Intangible Assets"
("SFAS 142"). SFAS 141 requires all business combinations initiated after June
30, 2001 to be accounted for using the purchase method. Use of the
pooling-of-interest method is no longer permitted.
32
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
SFAS 142 requires that goodwill no longer be amortized to earnings, but
instead be reviewed for possible impairment. Goodwill amortization ceases upon
adoption of SFAS 142, which is effective for fiscal years beginning after
December 15, 2001. Early adoption is permitted for companies with fiscal years
beginning after March 15, 2001, and the Company currently intends to adopt SFAS
142 effective October 1, 2001, the beginning of its next fiscal year. The
Company's cessation of goodwill amortization under the guidelines of SFAS 142
will result in a reduction of approximately $14 million in annual operating
expenses, assuming no impairment of goodwill. The Company is in the process of
determining the effects of the implementation of SFAS 142.
In August 2001, the FASB issued Statement No. 143, "Accounting for Asset
Retirement Obligations" ("SFAS 143"), which requires the fair value of a
liability for an asset retirement legal obligation to be recognized in the
period in which it is incurred. When the liability is initially recorded,
associated costs are capitalized by increasing the carrying amount of the
related long-lived asset. Over time, the liability is periodically accreted to
its present value, and the capitalized cost is depreciated over the useful life
of the related asset. SFAS 143 is effective for fiscal years beginning after
June 15, 2002, with earlier application encouraged. SFAS 143 requires entities
to record a cumulative effect of change in accounting principle in the income
statement in the period of adoption. The Company plans to adopt SFAS 143 on
October 1, 2002 and is in the process of determining the effect of adoption on
its consolidated financial statements.
In August 2001, the FASB issued Statement No. 144, "Accounting for the
Impairment or Disposal of Long-Lived Assets" ("SFAS 144"). SFAS 144 provides
new guidance on the recognition of impairment losses on long-lived assets to be
held and used or to be disposed of and also broadens the definition of what
constitutes a discontinued operation and how the results of discontinued
operations are to be measured and presented. SFAS 144 supercedes SFAS 121 and
APB Opinion No. 30, while retaining many of the requirements of those
statements. Under SFAS 144, assets held for sale that are a component of an
entity will be included in discontinued operations if the operations and cash
flows will be or have been eliminated from the ongoing operations of the entity
and it will not have any significant continuing involvement in the operations.
SFAS 144 is effective for fiscal years beginning after December 15, 2001, with
early adoption encouraged. SFAS 144 is not expected to materially change the
methods used by the Company to measure impairment losses on long-lived assets,
but may result in future dispositions being reported as discontinued operations
to a greater extent than is currently permitted. The Company plans to adopt
SFAS 144 on October 1, 2002.
3. Acquisitions of Businesses
Effective June 28, 1999, the Company acquired selected assets and
subsidiaries of Fracmaster Ltd. for total consideration of $78.4 million. This
acquisition was accounted for using the purchase method of accounting.
Accordingly, the results of Fracmaster Ltd.'s operations were included in the
Company's statement of operations beginning July 1, 1999. The assets and
liabilities of Fracmaster Ltd. were recorded in the Company's September 30,
1999 statement of financial position at their estimated fair market value of
$78.4 million. The allocation of the purchase price may be summarized as
follows (in millions):
<TABLE>
<S> <C>
Fair value of assets acquired(1). $129.6
Debt assumed..................... (1.7)
Liabilities assumed.............. (37.1)
Excess of fair value over cost(2) (12.4)
------
$ 78.4
======
</TABLE>
- --------
(1) Includes cash acquired of $4.9 million.
(2) Reduced the value assigned to noncurrent assets.
33
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Pro forma financial information is not presented because the acquisition was
not material to the Company's consolidated financial statements.
The Company made other acquisitions in fiscal 2001 and 2000 for aggregate
consideration of $29.0 million and $3.2 million, respectively. These
acquisitions were accounted for using the purchase method of accounting and,
accordingly, any excess of total consideration over the estimated fair value of
net assets acquired was recorded as goodwill and is being amortized over 40
years. These acquisitions are not material to the Company's financial
statements and therefore pro forma information is not presented.
4. Unusual Charges
During fiscal 1999, the Company recorded pretax unusual charges totaling
$39.7 million ($26.0 million after tax, or $.18 per diluted share) to reflect
changes in its operations as a result of the downturn in oilfield drilling
activity. The components of the unusual charge are as follows (in thousands):
<TABLE>
<CAPTION>
1999 Provision
--------------
<S> <C>
Asset impairments (noncash)... $23,051
Severance and related benefits 12,798
Facility closures and other... 3,846
-------
$39,695
=======
</TABLE>
The 1999 asset impairment losses of $23.1 million primarily relate to
certain equipment previously utilized in the Company's U.S. operations that
were sold or decommissioned and salvaged for spare parts. The severance and
related benefits relate to the cost of the involuntary termination of
approximately 1,100 employees worldwide. The facility closures and other costs
primarily represent remaining lease obligations related to the closure of
several locations in the U.S. and one in Latin America, and costs incurred for
the relocation of equipment and personnel resulting from closing these
facilities. All expenditures for this provision were made as of September 30,
2001.
5. Earnings Per Share
Basic Earnings Per Share ("EPS") excludes dilution and is computed by
dividing income available to common stockholders by the weighted-average number
of common shares outstanding for the period. Diluted EPS is based on the
weighted-average number of shares outstanding during each period and the
assumed exercise of dilutive stock options and warrants less the number of
treasury shares assumed to be purchased from the proceeds using the average
market price of the Company's common stock for each of the periods presented.
At a special meeting on May 10, 2001, the Company's stockholders approved an
amendment to the Company's charter increasing the number of authorized shares
of common stock from 160 million shares to 380 million shares. As a result, a 2
for 1 stock split (effected in the form of a stock dividend) was distributed on
May 31, 2001 to stockholders of record as of May 17, 2001. Accordingly, all
references in the financial statements to number of shares outstanding and
earnings per share amounts have been retroactively restated for all periods
presented to reflect the increased number of common shares outstanding
resulting from the stock split.
34
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The following table presents information necessary to calculate earnings per
share for the three years ended September 30, 2001 (in thousands, except per
share amounts):
<TABLE>
<CAPTION>
2001 2000 1999
-------- -------- --------
<S> <C> <C> <C>
Net income (loss)........................................... $349,259 $117,976 $(29,688)
Weighted-average common shares outstanding.................. 163,885 158,508 141,578
-------- -------- --------
Basic earnings (loss) per share............................. $ 2.13 $ .74 $ (.21)
======== ======== ========
Weighted-average common and dilutive potential common shares
outstanding:
Weighted-average common shares outstanding............... 163,885 158,508 141,578
Assumed exercise of stock options........................ 3,195 4,352 (1)
Assumed exercise of warrants(2).......................... 5,840 (1)
-------- -------- --------
167,080 168,700 141,578
-------- -------- --------
Diluted earnings (loss) per share........................... $ 2.09 $ .70 $ (.21)
======== ======== ========
</TABLE>
- --------
(1) Antidilutive because the Company incurred a net loss in this period.
(2) Includes dilutive impact of warrants for the periods they were outstanding
through April 2000.
6. Debt and Bank Credit Facilities
Long-term debt at September 30, 2001 and 2000 consisted of the following (in
thousands):
<TABLE>
<CAPTION>
2001 2000
------- --------
<S> <C> <C>
Notes payable, banks....................... $ 46,763
7% Series B Notes due 2006, net of discount $78,791 124,593
Other...................................... 920 1,276
------- --------
79,711 172,632
Less current maturities of long-term debt.. 318 30,651
------- --------
Long-term debt............................. $79,393 $141,981
======= ========
</TABLE>
In June 2001, the Company replaced its existing credit facility (the "Bank
Credit Facility") with a $400 million committed line of credit (the "Committed
Credit Facility"). In connection with the replacement of the Bank Credit
Facility, the Company prepaid $30.3 million of borrowings that were outstanding
under the term loan portion and accelerated recognition of $1.2 million of
unamortized debt issuance costs. The Committed Credit Facility consists of a
$200 million, 364-day commitment that renews annually at the option of the
lenders, and a $200 million, three-year commitment. Interest on outstanding
borrowings is charged based on prevailing market rates, which were 3.26% and
6.25% at September 30, 2001 and 2000, respectively. The Company is charged
various fees in connection with the Committed Credit Facility, including a
commitment fee based on the average daily unused portion of the commitment.
Commitment fees were $383,000, $290,000 and $155,000 for 2001, 2000 and 1999,
respectively. There were no outstanding borrowings under the Committed Credit
Facility at September 30, 2001.
In addition to the Committed Credit Facility, the Company had $119.8 million
of unsecured, discretionary lines of credit at September 30, 2001, which expire
at various dates in 2002. There are no requirements for
commitment fees or compensating balances in connection with these lines of
credit and interest is at prevailing
35
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
market rates. There were $14.0 million and $3.4 million in outstanding
borrowings under these lines of credit at September 30, 2001 and 2000,
respectively. The weighted average interest rates on short-term borrowings
outstanding as of September 30, 2001 and 2000 were 6.4% and 9.1%, respectively.
In June 2001, the Company repurchased and retired $46 million of its 7%
notes maturing in 2006 and recorded associated debt extinguishment costs of
$1.7 million (classified as other expense), consisting mainly of a $1.3 million
early payment premium. The remaining $78.8 million of these notes outstanding
at September 30, 2001 mature in 2006.
At September 30, 2001, the Company had outstanding letters of credit and
performance related bonds totaling $17.2 million and $51.7 million,
respectively. The letters of credit are issued to guarantee various trade
activities.
The Company's debt agreements contain various customary covenants including
maintenance of certain profitability and solvency ratios, as defined in the
Committed Credit Facility, none of which materially restrict the Company's
activities.
7. Financial Instruments
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments for which it is practicable.
Cash and Cash Equivalents, Trade Receivables, Trade Payables and Short-Term
Borrowings: The carrying amount approximates fair value because of the short
maturity of those instruments.
Long-term Debt: Fair value is based on the rates currently available to the
Company for debt with similar terms and average maturities. Other long-term
debt consists of borrowings under the Committed Credit Facility. The carrying
amount of such borrowings approximates fair value because interest on the
individual borrowings is at current market rates.
The fair value of financial instruments that differed from their carrying
value at September 30, 2001 and 2000 was as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000
- - ------------------- -------------------
Carrying Carrying
Amount Fair Value Amount Fair Value
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
7% Series B Notes $78,791 $83,258 $124,593 $120,946
</TABLE>
8. Income Taxes
The geographical sources of income (loss) before income taxes for the three
years ended September 30, 2001 were as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
-------- -------- --------
<S> <C> <C> <C>
United States.................... $363,584 $100,576 $(67,887)
Foreign.......................... 165,597 74,707 22,978
-------- -------- --------
Income (loss) before income taxes $529,181 $175,283 $(44,909)
======== ======== ========
</TABLE>
36
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The provision (benefit) for income taxes for the three years ended September
30, 2001 is summarized below (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
-------- ------- --------
<S> <C> <C> <C>
Current:
United States............ $ 3,350 $ 1,081
Foreign.................. 32,738 17,189 $ 17,645
-------- ------- --------
Total current........ 36,088 18,270 17,645
Deferred:
United States............ 130,047 38,635 (26,501)
Foreign.................. 13,787 402 (6,365)
-------- ------- --------
Total deferred....... 143,834 39,037 (32,866)
-------- ------- --------
Income tax expense (benefit) $179,922 $57,307 $(15,221)
======== ======= ========
</TABLE>
The consolidated effective income tax rates (as a percent of income before
income taxes) for the three years ended September 30, 2001 varied from the
United States statutory income tax rate for the reasons set forth below:
<TABLE>
<CAPTION>
2001 2000 1999
---- ---- -----
<S> <C> <C> <C>
Statutory rate............................ 35.0% 35.0% (35.0)%
Foreign earnings at varying rates......... (2.6) (5.4) (10.4)
State income taxes, net of federal benefit .6
Foreign income recognized domestically.... .1 .3 (4.8)
Goodwill amortization..................... .7 2.1 10.5
Nondeductible expenses.................... .3 1.1 5.6
Other, net................................ (.1) (.4) .2
---- ---- -----
34.0% 32.7% (33.9)%
==== ==== =====
</TABLE>
Deferred tax assets and liabilities are recognized for the estimated future
tax effects of temporary differences between the tax basis of assets or
liabilities and their reported amounts in the financial statements. The
measurement of deferred tax assets and liabilities is based on enacted tax laws
and rates currently in effect in each of the jurisdictions in which the Company
has operations. Generally, deferred tax assets and liabilities are classified
as current or noncurrent according to the classification of the related assets
or liabilities for financial reporting. The estimated deferred tax effect of
temporary differences and carryforwards as of September 30, 2001 and 2000 were
as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000
- - -------- --------
<S> <C> <C>
Assets:
Expenses accrued for financial reporting purposes, not yet deducted for
tax..................................................................... $ 73,281 $ 74,425
Net operating loss carryforwards.......................................... 75,020 195,639
Valuation allowance....................................................... (39,140) (39,140)
-------- --------
Total deferred tax asset.............................................. 109,161 230,924
Liabilities:
Differences in depreciable basis of property.............................. (18,214) (20,994)
Income accrued for financial reporting purposes, not yet reported for tax. (6,454) (2,469)
-------- --------
Total deferred tax liability.......................................... (24,668) (23,463)
-------- --------
Net deferred tax asset....................................................... $ 84,493 $207,461
======== ========
</TABLE>
37
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
At September 30, 2001, the Company had approximately $105 million of U.S.
tax net operating loss carryforwards expiring in varying amounts between 2002
and 2014. The Company also had approximately $41 million of foreign tax net
operating loss carryforwards and approximately $11 million of foreign research
and development tax credit carryforwards as of September 30, 2001. Of the
foreign tax net operating loss carryforwards, approximately $12 million is not
subject to annual limitations and will carryforward indefinitely. The foreign
research and development tax credit carryforward and the remaining loss
carryforward, if not used, will expire in varying amounts beginning in 2002.
The potential impact of the expiration of foreign net operating loss and
research and development tax credit carryforwards has been reflected in the
deferred tax asset valuation allowance balance as of September 30, 2001 and
2000. In 2000, a $4.2 million increase in the deferred tax valuation allowance
resulted from $1.1 million of adjustments to the Fracmaster purchase price
allocation; $3.9 million increase related to net operating losses recognized in
Venezuela, which are expected to expire prior to utilization, and a $.8 million
reduction as a result of foreign exchange movements.
The Company does not provide federal income taxes on the undistributed
earnings of its foreign subsidiaries considered to be permanently reinvested in
foreign operations. The cumulative amount of such undistributed earnings was
approximately $540 million at September 30, 2001. If these earnings were to be
remitted to the Company any U.S. income taxes payable would be substantially
reduced by foreign tax credits generated by repatriation of the earnings.
9. Segment Information
The Company has three business segments: U.S./Mexico Pressure Pumping,
International Pressure Pumping and Other Oilfield Services. The U.S./Mexico
Pressure Pumping segment includes cementing services and stimulation services
(consisting of fracturing, acidizing, sand control, nitrogen, coiled tubing and
downhole tools services) provided throughout the United States and Mexico. The
International Pressure Pumping segment includes cementing and stimulation
services provided to customers in over 40 countries in the major international
oil and natural gas producing areas of Canada, Latin America, Europe, Africa,
Southeast Asia, the Middle East, Russia and China. The Other Oilfield Services
segment consists of specialty chemicals, tubular services and process and
pipeline services provided in the U.S. and internationally.
The accounting policies of the segments are the same as those described in
the summary of significant accounting policies. The Company evaluates the
performance of its operating segments based on operating income excluding
goodwill amortization and unusual charges. Intersegment sales and transfers are
not significant.
38
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Summarized financial information concerning the Company's segments for each
of the three years ended September 30, 2001 is shown in the following tables
(in thousands). The "Corporate" column includes corporate expenses not
allocated to the operating segments.
Business Segments
<TABLE>
<CAPTION>
U.S./Mexico International Other
Pressure Pressure Oilfield
Pumping Pumping Services Corporate Total
----------- ------------- -------- --------- ----------
<S> <C> <C> <C> <C> <C>
2001
Revenues..................... $1,230,553 $794,687 $207,153 $ 1,127 $2,233,520
Operating income (loss)(1)... 430,152 126,828 29,266 (36,287) 549,959
Identifiable assets.......... 529,050 604,507 137,817 713,993 1,985,367
Capital expenditures......... 116,703 51,999 12,960 1,752 183,414
Depreciation and amortization 38,817 53,012 10,941 2,199 104,969
2000
Revenues..................... $ 743,788 $629,218 $182,354 $ 29 $1,555,389
Operating income (loss)(1)... 141,816 67,317 17,940 (18,351) 208,722
Identifiable assets.......... 351,269 573,414 119,105 741,445 1,785,233
Capital expenditures......... 31,656 36,150 7,863 4,849 80,518
Depreciation and amortization 38,791 52,258 11,112 (143) 102,018
1999
Revenues..................... $ 453,912 $505,613 $171,184 $ 625 $1,131,334
Operating income (loss)(1)... (3,889) 47,308 18,973 (23,937) 38,455
Identifiable assets.......... 356,794 584,936 122,121 760,913 1,824,764
Capital expenditures......... 42,460 36,515 12,607 18,984 110,566
Depreciation and amortization 36,532 44,951 10,677 7,640 99,800
</TABLE>
- --------
(1) Operating income by segment excludes goodwill amortization and unusual
charges.
39
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Geographic Information
<TABLE>
<CAPTION>
Long-Lived
Revenues Assets
---------- ----------
<S> <C> <C>
2001
United States......... $1,274,806 $ 794,292
Canada................ 260,608 100,362
Other countries....... 698,106 278,554
---------- ----------
Consolidated total. $2,233,520 $1,173,208
========== ==========
2000
United States......... $ 801,431 $ 693,860
Canada................ 223,227 105,174
Other countries....... 530,731 280,026
---------- ----------
Consolidated total. $1,555,389 $1,079,060
========== ==========
1999
United States......... $ 488,566 $ 769,492
Canada................ 118,996 114,159
Other countries....... 523,772 300,376
---------- ----------
Consolidated total. $1,131,334 $1,184,027
========== ==========
</TABLE>
Revenues by Product Line
<TABLE>
<CAPTION>
2001 2000 1999
---------- ---------- ----------
<S> <C> <C> <C>
Cementing........ $ 693,715 $ 492,159 $ 356,762
Stimulation...... 1,279,675 846,796 577,077
Other............ 260,130 216,434 197,495
---------- ---------- ----------
Total revenue. $2,233,520 $1,555,389 $1,131,334
========== ========== ==========
</TABLE>
A reconciliation from the segment information to consolidated income (loss)
before income taxes for each of the three years ended September 30, 2001 is set
forth below (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
-------- -------- --------
<S> <C> <C> <C>
Total operating profit for reportable segments $549,959 $208,722 $ 38,455
Goodwill amortization......................... (13,739) (13,497) (13,525)
Unusual charges............................... (39,695)
Interest expense, net......................... (10,715) (18,392) (30,757)
Other income (expense), net................... 3,676 (1,550) 613
-------- -------- --------
Income (loss) before income taxes............. $529,181 $175,283 $(44,909)
======== ======== ========
</TABLE>
40
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
10. Employee Benefit Plans
U.S. Benefit Plans
The Company administers a thrift plan for U.S. based employees whereby
eligible employees elect to contribute from 2% to 12% of their base salaries to
an employee benefit trust. Employee contributions are matched by the Company at
the rate of $.50 per $1.00 up to 6% of the employee's base salary. In addition,
the Company contributes between 2% and 5% of each employee's base salary
depending on their age as of January 1 each year as a base contribution.
Company matching contributions vest immediately while base contributions become
fully vested after five years of employment. The Company's contributions to
these thrift plans amounted to $8.4 million, $7.6 million, and $7.4 million in
2001, 2000, and 1999, respectively.
Effective October 1, 2000, the Company established a non-qualified
supplemental executive retirement plan. The unfunded defined benefit plan will
provide Company executives with supplemental retirement benefits based on the
highest consecutive three years compensation out of the final ten years and
become vested at age 55. The expense associated with this plan was $3.7 million
in 2001. The related accrued benefit obligation was $3.7 million as of
September 30, 2001.
Effective December 7, 2000, the Company established a non-qualified
directors' benefit plan. The unfunded defined benefit plan will provide the
Company's non-employee directors with benefits upon termination of their
service based on the number of years of service and the last annual retainer
fee. The expense associated with this plan was $1.3 million for 2001. The
related accrued benefit obligation was $1.3 million as of September 30, 2001.
The Company's U.S. employees formerly employed for at least one year by The
Western Company of North America ("Western") are covered under a defined
benefit pension plan as a carryover from the Company's acquisition of Western.
Pension benefits are based on years of service and average compensation for
each employee's five consecutive highest paid years during the last ten years
worked. Benefits under the Western plan were frozen effective December 31,
1995, at which time all earned benefits were vested. The funded status of this
plan at September 30, 2001 and 2000 was as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000
-------- -------
<S> <C> <C>
Vested benefit obligation......................... $ 58,233 $52,221
======== =======
Accumulated benefit obligation.................... $ 58,233 $52,221
Plan assets at fair value......................... 51,200 51,396
-------- -------
Benefit obligation in excess of plan assets....... 7,033 825
Cumulative unrecognized loss...................... (12,885) (3,663)
Adjustment required to recognize minimum liability 12,885 3,663
-------- -------
Net pension liability............................. $ 7,033 $ 825
======== =======
</TABLE>
41
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The following is a reconciliation of the benefit obligation and plan assets:
<TABLE>
<CAPTION>
2001 2000
------- -------
<S> <C> <C>
Change in benefit obligation
Defined benefit plan obligation, beginning of year $52,221 $53,383
Interest cost..................................... 3,895 3,756
Actuarial loss (gain)............................. 5,196 (1,758)
Benefits paid from plan assets.................... (3,079) (3,160)
------- -------
Defined benefit plan obligation, end of year...... $58,233 $52,221
======= =======
Change in plan assets
Fair value of plan assets, beginning of year...... $51,396 $48,970
Company contributions............................. 2,387 2,300
Actual return on plan assets...................... 496 3,286
Benefits paid from plan assets.................... (3,079) (3,160)
------- -------
Fair value of plan assets, end of year............ $51,200 $51,396
======= =======
</TABLE>
Pursuant to the provisions of Statement of Financial Accounting Standards
No. 87, "Employers' Accounting for Pensions," the Company recorded in other
noncurrent liabilities minimum pension liability adjustments of $12.9 million
and $3.7 million as of September 30, 2001 and 2000, respectively. As there were
no previously unrecognized prior service costs at September 30, 2001 and 2000,
the full amount of the adjustments, net of related deferred tax benefit, are
reflected as a reduction of stockholders' equity. See Note 12 for disclosure of
the amounts included in other comprehensive income.
Assumptions used in accounting for the Company's U.S. defined benefit plan
were as follows:
<TABLE>
<CAPTION>
2001 2000 1999
---- ---- ----
<S> <C> <C> <C>
Weighted-average discount rate.............................. 6.87% 7.70% 7.25%
Weighted-average expected long-term rate of return on assets 9.00% 9.00% 9.00%
</TABLE>
Costs for each of the three years ended September 30, 2001 for the Company's
U.S. defined benefit plan were as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
------- ------- -------
<S> <C> <C> <C>
Interest cost on projected benefit obligation $ 3,895 $ 3,756 $ 3,589
Expected return on plan assets............... (4,521) (4,268) (4,142)
Net amortization and deferral................ 520
------- ------- -------
Net pension benefit.......................... $ (626) $ (512) $ (33)
======= ======= =======
</TABLE>
Foreign Benefit Plans
The Company sponsors defined benefit plans that cover substantially all
employees in Canada and the United Kingdom. Effective July 1, 2000, a defined
contribution component was added to the Canadian pension plan and active
members were permitted to elect to participate in either the defined benefit or
defined contribution component of the plan. The plan conversion resulted in a
settlement of the projected benefit obligation for members who elected to
transfer their benefits entitlement to the defined contribution component
42
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
of the plan and a settlement gain of $1.5 million was recognized in other
income for the year ended September 30, 2000. The Company's contributions to
the Canadian defined contribution plan were $1.7 million and $.3 million in
2001 and 2000, respectively. The funded status of the Company's international
plans at September 30, 2001 and 2000 was as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000
------- --------
<S> <C> <C>
Actuarial present value of:
Vested benefit obligation................................ $48,404 $ 48,788
======= ========
Accumulated benefit obligation........................... $48,587 $ 48,850
======= ========
Projected benefit obligation................................ $56,648 $ 54,622
Plan assets at fair value................................... 51,818 64,776
------- --------
Plan assets less (greater) than projected benefit obligation 4,830 (10,154)
Unrecognized (loss) gain.................................... (4,445) 10,198
Unrecognized transition asset, net of amortization.......... 17 19
Unrecognized prior service cost............................. (108) (130)
------- --------
Net pension liability (asset)............................... $ 294 $ (67)
======= ========
</TABLE>
The following is a reconciliation of the benefit obligation and plan assets
of the Company's international defined benefit plans (in thousands):
<TABLE>
<CAPTION>
2001 2000
-------- -------
<S> <C> <C>
Change in benefit obligation
Defined benefit obligation, beginning of year $ 54,622 $61,519
Service cost................................. 3,134 3,834
Interest cost................................ 3,544 3,844
Actuarial gain............................... (3,220) (1,762)
Benefits paid from plan assets............... (1,921) (2,039)
Contributions by plan participants........... 1,319 1,712
Settlement on conversion..................... (8,075)
Foreign currency exchange rate change........ (830) (4,411)
-------- -------
Defined benefit obligation, end of year...... $ 56,648 $54,622
======== =======
<CAPTION>
2001 2000
-------- -------
<S> <C> <C>
Change in plan assets
Fair value of plan assets, beginning of year. $ 64,776 $65,311
Actual (loss) return on plan assets.......... (11,992) 10,219
Company contributions........................ 2,407 2,552
Contributions by plan participants........... 1,319 1,720
Benefits paid from plan assets............... (1,921) (2,039)
Funding of defined contribution plan......... (1,729)
Settlement of assets on conversion........... (8,257)
Foreign currency exchange rate change........ (1,042) (4,730)
-------- -------
Fair value of plan assets, end of year....... $ 51,818 $64,776
======== =======
</TABLE>
43
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Assumptions used in accounting for the Company's international defined
benefit pension plans were as follows:
<TABLE>
<S> <C>
Weighted-average discount rate.............................. 5-7%
Weighted-average rate of increase in future compensation.... 2-5%
Weighted-average expected long-term rate of return on assets 2-9%
</TABLE>
Combined costs for the Company's international defined benefit plans for the
three years ended September 30, 2001 were as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
------- ------- --------
<S> <C> <C> <C>
Net periodic pension cost:
Service cost for benefits earned.............. $ 3,134 $ 3,834 $ 5,478
Interest cost on projected benefit obligation. 3,544 3,844 3,860
Expected return on plan assets................ (5,716) (7,459) (11,387)
Recognized gain on settlement................. (10) (1,454)
Net amortization and deferral................. 183 3,289 7,309
------- ------- --------
Net pension cost................................. $ 1,135 $ 2,054 $ 5,260
======= ======= ========
</TABLE>
Postretirement Benefit Plans
The Company sponsors plans that provide certain health care and life
insurance benefits for retired employees (primarily U.S.) who meet specified
age and service requirements, and their eligible dependents. These plans are
unfunded and the Company retains the right, subject to existing agreements, to
modify or eliminate them.
The Company's postretirement medical benefit plan provides credits based on
years of service that can be used to purchase coverage under the active
employee plans. This plan effectively caps the Company's health care inflation
rate at a 4% increase per year. The 1995 reduction in the accumulated
postretirement benefit obligation of approximately $5.7 million due to this cap
was amortized over the average period of future service to the date of full
eligibility for such postretirement benefits of the active employees. The
amount was fully amortized as of September 30, 2000.
Net periodic postretirement benefit costs for the three years ended
September 30, 2001 included the following components (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
------ ------ ------
<S> <C> <C> <C>
Service cost for benefits attributed to service during the period $1,546 $1,392 $1,786
Interest cost on accumulated postretirement benefit obligation... 1,787 1,615 1,532
Amortization of prior service costs.............................. (599) (894)
Amortization of cumulative unrecognized net gain................. (536) (546)
------ ------ ------
Net periodic postretirement benefit cost......................... $2,797 $1,862 $2,424
====== ====== ======
</TABLE>
44
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The actuarial and recorded liabilities for these postretirement benefits
were as follows at September 30, 2001 and 2000 (in thousands):
<TABLE>
<CAPTION>
2001 2000
------- -------
<S> <C> <C>
Accumulated postretirement benefit obligation:
Retirees................................... $ 6,299 $ 6,687
Fully eligible active plan participants.... 4,295 2,681
Other active plan participants............. 18,930 14,345
------- -------
29,524 23,713
Unrecognized cumulative net gain.............. 1,277 6,436
------- -------
Accrued postretirement benefit liability...... $30,801 $30,149
======= =======
</TABLE>
The following provides a reconciliation of the benefit obligation and plan
assets (in thousands):
<TABLE>
<CAPTION>
2001 2000
------- -------
<S> <C> <C>
Change in benefit obligation
Postretirement benefit obligation, beginning of year $23,713 $22,822
Service cost........................................ 1,546 1,392
Interest cost....................................... 1,787 1,615
Actuarial (gain) loss............................... 4,624 (472)
Benefits paid....................................... (2,146) (1,644)
------- -------
Postretirement benefit obligation, end of year...... $29,524 $23,713
======= =======
</TABLE>
The accumulated postretirement benefit obligation at September 30, 2001 and
2000 was determined using a discount rate of 6.87% and 7.70%, respectively, and
a health care cost trend rate of 4%, reflecting the cap described above.
Increasing the assumed health care cost trend rates by one percentage point
would not have a material impact on the accumulated postretirement benefit
obligation or the net periodic postretirement benefit cost because these
benefits are effectively capped by the Company.
11. Commitments and Contingencies
The Company, through performance of its service operations, is sometimes
named as a defendant in litigation, usually relating to claims for bodily
injuries or property damage (including claims for well or reservoir damage).
The Company maintains insurance coverage against such claims to the extent
deemed prudent by management. The Company believes there are no existing claims
of a potentially material adverse nature for which it has not already provided
appropriate accruals.
Federal, state and local laws and regulations govern the Company's operation
of underground fuel storage tanks. Rather than incur additional costs to
restore and upgrade tanks as required by regulations, management has opted to
remove the existing tanks. The Company has completed the removal of these tanks
and has remedial cleanups in progress related to the tank removals. In
addition, the Company is conducting environmental investigations and remedial
actions at current and former company locations and, along with other
companies, is currently named as a potentially responsible party at five,
third-party owned waste disposal sites. An accrual of approximately $5 million
has been established for such environmental matters, which is management's best
estimate of the Company's portion of future costs to be incurred. Insurance is
also maintained for environmental liabilities in amounts which the Company's
management believes are reasonable based on its knowledge of potential
exposures.
45
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In December 1999, the Company completed a transaction involving the transfer
of certain pumping service equipment assets and received $120.0 million that
was used to pay outstanding bank debt. The equipment is used to provide
services to customers and the Company pays a service fee over a period of at
least six, but not more than 13 years. The transaction generated a deferred
gain, included in other long-term liabilities, of approximately $63 million,
which is being amortized over 13 years. The balance of the deferred gain was
$52.6 million and $57.4 million as of September 30, 2001 and 2000, respectively.
In 1997, the Company completed a transaction involving the transfer of
certain pumping service equipment assets. The Company received $100.0 million
that was used to pay outstanding bank debt. The equipment is used to provide
services to the Company's customers for which the Company pays a service fee
over a period of at least eight, but not more than 14 years. The transaction
generated a deferred gain of approximately $38 million, which is being
amortized over 12 years. The balance of the deferred gain was $21.5 million and
$25.4 million as of September 30, 2001 and 2000, respectively.
Lease and Other Long-Term Commitments: At September 30, 2001, the Company
had long-term operating leases and service fee commitments covering certain
facilities and equipment, as well as other long-term commitments, with varying
expiration dates. Minimum annual commitments for the years ended September 30,
2002, 2003, 2004, 2005 and 2006 are $43.7 million, $37.9 million, $35.9
million, $35.3 million and $32.9 million, respectively and $104.1 million in
the aggregate thereafter.
12. Supplemental Financial Information
Supplemental financial information for the three years ended September 30,
2001 is as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
------- ------- --------
<S> <C> <C> <C>
Consolidated Statement of Operations:
Research and development expense................... $14,327 $10,943 $ 10,573
Rent expense....................................... 60,700 56,235 46,871
Net foreign exchange (gain) loss................... 1,001 (1,625) (68)
Consolidated Statement of Cash Flows:
Income taxes paid.................................. $31,359 $23,725 $ 15,571
Interest paid...................................... 11,261 20,368 31,835
Details of acquisitions:
Fair value of assets acquired.................... 18,907 3,711 112,276
Liabilities assumed.............................. 14,612 471 38,834
Goodwill......................................... 14,274
Cash paid for acquisitions, net of cash acquired. 18,569 3,240 73,442
</TABLE>
Other income (expense), net for the three years ended September 30, 2001 is
summarized as follows (in thousands):
<TABLE>
<CAPTION>
2001 2000 1999
------- ------- -------
<S> <C> <C> <C>
Rental income................................. $ 158 $ 1,395 $ 114
Loss on sales of assets, net.................. (41) (1,451) (147)
Minority interest............................. (6,803) (3,263) (2,585)
Non-operating net foreign exchange gain (loss) 240 (26) 35
Dividend income............................... 2,197
Gain on pension settlement.................... 1,454
Gain on sale of equity investment............. 12,941
(Loss)Income from equity method investments... (2,010) 172 145
Accelerated recognition of debt issuance costs (1,693)
Other, net.................................... 884 169 854
------- ------- -------
Other income (expense), net................... $ 3,676 $(1,550) $ 613
======= ======= =======
</TABLE>
46
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Accumulated other comprehensive income (loss) consists of the following (in
thousands):
<TABLE>
<CAPTION>
Minimum Pension Cumulative
Liability Adjustment Translation Adjustment Total
-------------------- ---------------------- -------
<S> <C> <C> <C>
Balance, September 30, 1998 $(5,976) $13,395 $ 7,419
Changes.................... 3,090 (5,585) (2,495)
------- ------- -------
Balance, September 30, 1999 (2,886) 7,810 4,924
Changes.................... 505 (888) (383)
------- ------- -------
Balance, September 30, 2000 (2,381) 6,922 4,541
Changes.................... (5,994) (2,180) (8,174)
------- ------- -------
Balance, September 30, 2001 $(8,375) $ 4,742 $(3,633)
======= ======= =======
</TABLE>
The tax effects allocated to each component of other comprehensive income
may be summarized as follows (in thousands):
<TABLE>
<CAPTION>
Tax
Before-Tax (Expense) Net-of-Tax
Amount Benefit Amount
---------- --------- ----------
<S> <C> <C> <C>
Year Ended September 30, 1999:
Foreign currency translation adjustment. $ (5,585) $(5,585)
Minimum pension liability adjustment.... 4,754 $(1,664) 3,090
-------- ------- -------
Other comprehensive income.............. $ (831) $(1,664) $(2,495)
======== ======= =======
Year Ended September 30, 2000:
Foreign currency translation adjustment. $ (888) $ (888)
Minimum pension liability adjustment.... 777 $ (272) 505
-------- ------- -------
Other comprehensive income.............. $ (111) $ (272) $ (383)
======== ======= =======
Year Ended September 30, 2001:
Foreign currency translation adjustment. $ (2,180) $(2,180)
Minimum pension liability adjustment.... (9,222) $ 3,228 (5,994)
-------- ------- -------
Other comprehensive income.............. $(11,402) $ 3,228 $(8,174)
======== ======= =======
</TABLE>
13. Employee Stock Plans
Stock Option Plans: The Company's 1990 Stock Incentive Plan, 1995 Incentive
Plan, 1997 Incentive Plan, and 2000 Incentive Plan (the "Plans") provide for
the granting of options for the purchase of the Company's common stock ("Common
Stock") and other performance based awards to officers, key employees and
nonemployee directors. Options vest over three or four-year periods and are
exercisable for periods ranging from one to ten years. An aggregate of
23,962,454 shares of Common Stock has been reserved for grants, of which
8,298,882 were available for future grants at September 30, 2001.
47
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
A summary of the status of the Company's stock option activity and related
information for each of the three years ended September 30, 2001 is presented
below (in thousands, except per share prices):
<TABLE>
<CAPTION>
2001 2000 1999
---------------------- ---------------------- ---------------------
Weighted- Weighted- Weighted-
Average Average Average
Shares Exercise Price Shares Exercise Price Shares Exercise Price
------ -------------- ------ -------------- ------ --------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year...... 4,952 $ 8.38 8,776 $ 8.17 5,776 $8.32
Granted............................... 1,341 30.09 152 17.78 4,046 7.37
Exercised............................. (1,738) 7.57 (3,864) 8.26 (936) 5.39
Forfeited............................. (131) 13.35 (112) 8.79 (110) 9.01
------ ------ -----
Outstanding at end of year............ 4,424 15.16 4,952 8.39 8,776 8.18
====== ====== =====
Options exercisable at year-end....... 1,461 $11.82 1,810 $ 8.33 4,286 $7.71
Weighted-average fair value of options
granted during the year............. $16.82 $10.20 $5.58
</TABLE>
The following table summarizes information about stock options outstanding
as of September 30, 2001 (in thousands, except per share prices and remaining
life):
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------- -----------------------
Weighted-Average
Remaining Weighted-Average Weighted-Average
Range of Exercise Price Shares Contractual Life Exercise Price Shares Exercise Price
- ----------------------- ------ ---------------- ---------------- ------ ----------------
<S> <C> <C> <C> <C> <C>
$ 4.50 - 10.78..... 2,416 6.9 $ 7.03 705 $ 6.93
10.79 - 21.56..... 695 5.8 15.23 660 15.12
21.57 - 30.60..... 1,313 6.3 30.08 96 25.06
----- -----
4,424 6.6 15.16 1,461 11.82
===== =====
</TABLE>
SFAS 123 encourages, but does not require, companies to record compensation
cost for employee stock-based compensation plans at fair value as determined by
generally recognized option pricing models such as the Black-Scholes model or
the binomial model. Because of the inexact and subjective nature of deriving
stock option values using these methods, the Company has adopted the
disclosure-only provisions of SFAS 123 and continues to account for stock-based
compensation as it has in the past using the intrinsic value method prescribed
in APB 25. Accordingly, no compensation expense has been recognized for the
Company's employee stock option plans. Had compensation cost for the employee
stock option plans been determined based on the fair value at the grant date
for awards issued in 2001, 2000 and 1999 consistent with the provisions of SFAS
123, the Company's net earnings and diluted earnings per share would have been
reduced by $9.1 million or $.05 per share, $6.4 million or $.04 per share and
$6.0 million or $.04 per share in 2001, 2000 and 1999, respectively. As this
calculation does not consider the effect of awards issued prior to 1996, it may
not be representative of the effects on pro forma net income in future years.
The pro forma fair value of options at the date of grant was estimated using
the Black-Scholes model and the following assumptions:
<TABLE>
<CAPTION>
2001 2000 1999
------ ------ -----
<S> <C> <C> <C>
Expected life (years).............................. 4.8 5.0 7.9
Interest rate...................................... 3.6% 5.8% 6.2%
Volatility......................................... 63.0% 64.2% 65.4%
Dividend yield..................................... 0 0 0
Weighted-average fair value per share at grant date $16.82 $10.20 $5.58
</TABLE>
48
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Stock Purchase Plan: The Company's 1990 Employee Stock Purchase Plan and
1999 Employee Stock Purchase Plan (together, the "Purchase Plan") allow all
employees to purchase shares of the Company's Common Stock at 85% of market
value on the first or last business day of the twelve-month plan period
beginning each October, whichever is lower. Purchases are limited to 10% of an
employee's regular pay. A maximum aggregate of 8,558,124 shares has been
reserved under the Purchase Plan, 5,606,156 of which were available for future
purchase at September 30, 2001. In October 2001, 242,960 shares were purchased
at $15.12 per share and in October 2000, 393,844 shares were purchased at
$13.52 per share. Had compensation cost for the stock purchase plan been
determined consistent with the provisions of SFAS 123 the Company's net
earnings and diluted earnings per share would have been reduced by $1.0 million
or $.01 per share, $1.6 million or $.01 per share and $1.4 million or $.01 per
share in 2001, 2000 and 1999, respectively. The pro forma value of the
employees' purchase rights was estimated using the Black-Scholes model with the
following assumptions; no dividend yield; an expected life of one year;
expected volatility of 63.0% in 2001, 64.2% in 2000 and 65.4% in 1999; and a
risk-free interest rate of 1.96% in 2001, 6.16% in 2000 and 4.99% in 1999. The
weighted-average fair value per share of these purchase rights granted in 2001,
2000 and 1999 was $6.52, $6.11, and $3.12, respectively.
Stock Incentive Plan: Pursuant to the terms of the 1990 Stock Incentive Plan
and 1997 Stock Incentive Plan, from 1993 through 2000 the Company granted a
total of 1,767,814 Performance Units ("Units") to its officers. Each Unit
represents the right to receive from the Company at the end of a stipulated
period one unrestricted share of Common Stock, contingent upon achievement of
certain financial performance goals over the stipulated period. Should the
Company fail to achieve the specific financial goals as set by the Executive
Compensation Committee of the Board of Directors, the Units are canceled and
the related shares revert to the Company for reissuance under the plan. The
aggregate fair market value of the underlying shares granted under this plan is
considered unearned compensation at the time of grant and is adjusted annually
based on the current market price for the Common Stock. Compensation expense is
determined based on management's current estimate of the likelihood of meeting
the specific financial goals and expensed ratably over the stipulated period.
Between April 1995 and November 2000, a total of 1,061,730 Units were converted
into Common Stock and issued to officers, 50,990 Units were deferred for later
issuance and 371,192 Units were canceled. Of the 50,990 deferred Units, all but
5,074 were converted into Common Stock as of September 30, 2001. As of
September 30, 2001, there were 288,976 Units outstanding.
14. Stockholders' Equity
Stockholder Rights Plan: The Company has a Stockholder Rights Plan (the
"Rights Plan") designed to deter coercive takeover tactics and to prevent an
acquirer from gaining control of the Company without offering a fair price to
all of its stockholders. Under this plan, each outstanding share of Common
Stock includes one-quarter of a preferred share purchase right ("Right") that
becomes exercisable under certain circumstances, including when beneficial
ownership of the Common Stock by any person, or group, equals or exceeds 15% of
the Company's outstanding Common Stock. Each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of Series A
Junior Participating Preferred Stock at a price of $150, subject to adjustment
under certain circumstances. Upon the occurrence of certain events specified in
the Rights Plan, each holder of a Right (other than an Acquiring Person) will
have the right, upon exercise of such Right, to receive that number of shares
of Common Stock of the Company (or the surviving corporation) that, at the time
of such transaction, would have a market price of two times the purchase price
of the Right. No shares of Series A Junior Participating Preferred Stock have
been issued by the Company at September 30, 2001. The Rights were
proportionately adjusted to reflect the effects of the February 1998 and May
2001 stock splits.
Stock Purchase Warrants: In connection with the acquisition of Western in
1995, the Company issued 4,800,037 stock purchase warrants ("Warrants"). The
Warrants were issued April 14, 1995 at an initial value of
49
<PAGE>
BJ SERVICES COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
$5.00 per Warrant. Subsequent to the February 1998 stock split, each Warrant
represented the right to purchase two shares of Common Stock at an exercise
price of $15 per share, until the expiration date of April 13, 2000. A total of
4,787,852 Warrants were exercised before their expiration date, leaving 8,224
issued and outstanding Warrants that expired unexercised. Exercise of the
Warrants resulted in the issuance of 19,151,408 shares of Common Stock.
Stock Split: At a special meeting on May 10, 2001, the Company's
stockholders approved an amendment to the Company's charter increasing the
number of authorized shares of Common Stock from 160 million to 380 million
shares. This allowed the Company to effect a 2 for 1 stock split (in the form
of a dividend) previously authorized by the Board of Directors on March 22,
2001. The distribution on May 31, 2001 increased the number of shares
outstanding from 82,283,861 to 164,567,722. All share and per share data,
including stock option and stock purchase plan information have been restated
to reflect the stock split.
Treasury Stock: In December 1997, the Board of Directors approved a share
repurchase program authorizing purchases of up to $150 million of Common Stock
at the discretion of the Company's management. The Board subsequently increased
the authorized amount to $300 million in May 1998, to $450 million in September
2000, and again to $600 million in July 2001. Subsequent to September 30, 2001,
the Board of Directors approved an increase in the authorized amount to $750
million. Under this program, the Company repurchased 12,792,800 shares at a
cost of $219.4 million through fiscal 2000 and 7,014,200 shares at a cost of
$177.5 million during fiscal 2001. In October 1999, the Company reissued
8,055,944 shares of treasury stock through a private placement with certain
financial institutions. The proceeds from the private placement of $144.0
million were used to pay down outstanding debt. The Company also entered into
privately negotiated option agreements pursuant to which it repurchased an
equivalent number of shares in April 2000 for a total of $149.0 million. The
Company utilized proceeds of $143.5 million from the exercise of Warrants to
fund the purchase.
15. Quarterly Financial Data (Unaudited)
<TABLE>
<CAPTION>
First Second Third Fourth Fiscal Year
Quarter Quarter Quarter Quarter Total
-------- -------- -------- -------- -----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C>
Fiscal Year 2001:
Revenue............ $489,678 $549,661 $579,839 $614,342 $2,233,520
Gross profit(1).... 134,466 163,041 189,083 192,940 679,530
Net income......... 63,463 80,752 104,809 100,235 349,259
Earnings per share:
Basic........... .39 .49 .64 .62 2.13
Diluted......... .38 .48 .63 .61 2.09
Fiscal Year 2000:
Revenue............ $354,820 $390,755 $371,294 $438,520 $1,555,389
Gross profit(1).... 67,325 80,517 71,883 98,287 318,012
Net income......... 20,462 29,324 25,908 42,282 117,976
Earnings per share:
Basic........... .14 .19 .16 .25 .74
Diluted......... .12 .17 .15 .25 .70
</TABLE>
- --------
(1) Represents revenue less cost of sales and services and research and
engineering expenses.
50
<PAGE>
ITEM 9. Changes In and Disagreements With Accountants On Accounting and
Financial Disclosure
None.
PART III
ITEM 10. Directors and Executive Officers of the Registrant
Information concerning the directors of the Company is set forth in the
section entitled "Election of Directors" in the Proxy Statement of the Company
for the Annual Meeting of Stockholders to be held January 24, 2002, which
section is incorporated herein by reference. For information regarding
executive officers of the Company, see page 11 hereof. Information concerning
compliance with Section 16(a) of the Exchange Act is set forth in the section
entitled "Compliance with Section 16(a) of the Exchange Act" in the Proxy
Statement of the Company for the Annual Meeting of Stockholders to be held
January 24, 2002, which section is incorporated herein by reference.
ITEM 11. Executive Compensation
Information for this item is set forth in the sections entitled "Election of
Directors", "Executive Compensation" and "Severance Agreements" in the Proxy
Statement of the Company for the Annual Meeting of Stockholders to be held
January 24, 2002, which sections are incorporated herein by reference.
ITEM 12. Security Ownership of Certain Beneficial Owners and Management
Information for this item is set forth in the sections entitled "Voting
Securities" and "Election of Directors" in the Proxy Statement of the Company
for the Annual Meeting of Stockholders to be held January 24, 2002, which
sections are incorporated herein by reference.
ITEM 13. Certain Relationships and Related Transactions
None.
51
<PAGE>
PART IV
ITEM 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) List of documents filed as part of this report or incorporated herein by
reference:
(1) Financial Statements:
The following financial statements of the Registrant as set forth
under Part II, Item 8 of this report on Form 10-K on the pages indicated.
<TABLE>
<CAPTION>
Page in
this
Form 10-K
---------
<S> <C>
Report of Independent Auditors........................................................ 25
Consolidated Statement of Operations for the years ended September 30, 1999, 2000 and
2001................................................................................ 26
Consolidated Statement of Financial Position as of September 30, 2000 and 2001........ 27
Consolidated Statement of Stockholders' Equity for the years ended September 30, 1999,
2000 and 2001....................................................................... 29
Consolidated Statement of Cash Flows for the years ended September 30, 1999, 2000 and
2001................................................................................ 30
Notes to Consolidated Financial Statements............................................ 31
</TABLE>
(2) Financial Statement Schedules:
<TABLE>
<CAPTION>
Schedule Page
Number Description of Schedule Number
- -------- ----------------------- ------
<S> <C> <C>
II Valuation and Qualifying Accounts 57
</TABLE>
All other financial statement schedules are omitted because of the
absence of conditions under which they are required or because all
material information required to be reported is included in the
consolidated financial statements and notes thereto.
(b) The Company did not file any reports on Form 8-K during the fourth
quarter of fiscal 2001.
(3) Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<C> <S>
2.1 Agreement and Plan of Merger dated as of November 17, 1994 ("Merger Agreement"), among BJ
Services Company, WCNA Acquisition Corp. and The Western Company of North America (filed as
Exhibit 2.1 to the Company's Annual Report on Form 10-K for the year ended September 30, 1995,
and incorporated herein by reference).
2.2 First Amendment to Agreement and Plan of Merger dated March 7, 1995, among BJ Services
Company, WCNA Acquisition Corp. and The Western Company of North America (filed as Exhibit
2.2 to the Company's Annual Report on Form 10-K for the year ended September 30, 1995, and
incorporated herein by reference).
3.1 Certificate of Incorporation, as amended as of April 13, 1995 (filed as Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the year ended September 30, 1999 and incorporated herein by
reference).
</TABLE>
52
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<C> <S>
3.2 Certificate of Amendment to Certificate of Incorporation, dated January 22, 1998 (filed as Exhibit
3.2 to the Company's Annual Report on Form 10-K for the year ended September 30, 1999 and
incorporated herein by reference).
3.3 Certificate of Amendment to Certificate of Incorporation, dated May 10, 2001 (filed as Exhibit 3.5 to
the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001 and
incorporated herein by reference).
3.4 Certificate of Designation of Series A Junior Participating Preferred Stock, as amended (filed as
Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended September 30, 1996
and incorporated herein by reference).
3.5 Amended and Restated Bylaws, as of September 27, 2001 (filed as Exhibit 3.5 to the Company's
Form 8-A/A with respect to the Company's preferred share purchase rights and incorporated herein
by reference)
4.1 Specimen form of certificate for the Common Stock (filed as Exhibit 4.1 to the Company's
Registration Statement on Form S-1 (Reg. No. 33-35187) and incorporated herein by reference).
4.2 Amended and Restated Rights Agreement dated September 26, 1996, between the Company and
First Chicago Trust Company of New York, as Rights Agent (filed as Exhibit 4.1 to the Company's
Form 8-K dated October 21, 1996 and incorporated herein by reference).
4.3 First Amendment to Amended and Restated Rights Agreement and Appointment of Rights Agent,
dated March 31, 1997, among the Company, First Chicago Trust Company of New York and The
Bank of New York (filed as Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year
ended September 30, 1997 and incorporated herein by reference).
4.4 Indenture among the Company, BJ Services Company, U.S.A., BJ Services Company Middle East,
BJ Service International, Inc. and Bank of Montreal Trust Company, Trustee, dated as of February 1,
1996, which includes the form of 7% Notes due 2006 and Exhibits thereto (filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-4 (Reg. No. 333-02287) and incorporated herein by
reference).
4.5 First Supplemental Indenture, dated as of July 24, 2001, among the Company, BJ Services Company,
U.S.A., BJ Services Company Middle East, BJ Service International, Inc. and The Bank of New
York, as Trustee (filed as Exhibit 4.5 to the Company's Form 8-A/A with respect to the Company's
preferred share purchase rights and incorporated herein by reference).
10.1 Relationship Agreement dated as of July 20, 1990, between the Company and Baker Hughes
Incorporated (filed as Exhibit 10.1 to the Company's Registration Statement on Form S-1 (Reg. No.
33-35187) and incorporated herein by reference).
10.2 Tax Allocation Agreement dated as of July 20, 1990, between the Company and Baker Hughes
Incorporated (included as Exhibit A to Exhibit 10.1) (filed as Exhibit 10.2 to the Company's
Registration Statement on Form S-1 (Reg. No. 33-35187) and incorporated herein by reference).
+10.3 1990 Stock Incentive Plan, as amended and restated (filed as Exhibit 10.1 to the Company's
Registration Statement on Form S-8 (Reg. No. 33-62098) and incorporated herein by reference).
+10.4 Amendment effective December 12, 1996, to 1990 Stock Incentive Plan, as amended and restated
(filed as Exhibit 10.4 to the Company's Annual Report on Form 10-K for the year ended September
30, 1996, and incorporated herein by reference).
+10.5 Amendment effective July 22, 1999 to 1990 Stock Incentive Plan (filed as Exhibit 10.24 to the
Company's Annual Report on Form 10-K for the year ended September 30, 1999, and incorporated
herein by reference).
</TABLE>
53
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<C> <S>
+10.6 Amendment effective January 27, 2000 to 1990 Stock Incentive Plan (filed as Appendix A to the
Company's Proxy Statement dated December 20, 1999 and incorporated herein by reference).
+10.7 BJ Services Company 1995 Incentive Plan (filed as Exhibit 4.5 to the Company's Registration
Statement on Form S-8 (Reg. No. 33-58637) and incorporated herein by reference).
+10.8 Amendments effective January 25, 1996, and December 12, 1996, to BJ Services Company 1995
Incentive Plan (filed as Exhibit 10.9 to the Company's Annual Report on form 10-K for the year
ended September 30, 1996, and incorporated herein by reference).
+10.9 Amendment effective July 22, 1999 to BJ Services Company 1995 Incentive Plan (filed as Exhibit
10.25 to the Company's Annual Report on Form 10-K for the year ended September 30, 1999, and
incorporated herein by reference).
+10.10 Amendment effective January 27, 2000 to BJ Services Company 1995 Incentive Plan (filed as
Appendix B to the Company's Proxy Statement dated December 20, 1999 and incorporated herein
by reference).
+10.11 Amendment effective May 10, 2001 to BJ Services Company 1995 Incentive Plan (filed as
Appendix B to the Company's Proxy Statement dated April 10, 2001 and incorporated herein by
reference).
+*10.12 Eighth Amendment effective October 15, 2001 to BJ Services Company 1995 Incentive Plan.
+10.13 1997 Incentive Plan (filed as Appendix B to the Company's Proxy Statement dated December 22,
1997 and incorporated herein by reference).
+10.14 Amendment effective July 22, 1999 to 1997 Incentive Plan (filed as Exhibit 10.26 to the Company's
Annual Report on Form 10-K for the year ended September 30, 1999, and incorporated herein by
reference).
+10.15 Amendment effective January 27, 2000 to 1997 Incentive Plan (filed as Appendix C to the
Company's Proxy Statement dated December 20, 1999 and incorporated herein by reference).
+10.16 Amendment effective May 10, 2001 to 1997 Incentive Plan (filed as Appendix C to the Company's
Proxy Statement dated April 10, 2001 and incorporated herein by reference).
+*10.17 Fifth Amendment effective October 15, 2001 to 1997 Incentive Plan.
+10.18 1999 Employee Stock Purchase Plan (filed as Appendix A to the Company's Proxy Statement dated
December 21, 1998 and incorporated herein by reference).
+*10.19 Amendment effective September 23, 1999 to BJ Services Company 1999 Employee Stock Purchase
Plan.
+*10.20 Second Amendment effective September 1, 2001 to BJ Services Company 1999 Employee Stock
Purchase Plan.
+10.21 BJ Services Company 2000 Incentive Plan (filed as Appendix B to the Company's Proxy Statement
dated December 20, 2000 and incorporated herein by reference).
+10.22 First Amendment effective March 22, 2001 to BJ Services Company 2000 Incentive Plan (filed as
Exhibit 10.2 to the Company's Registration Statement on Form S-8 (Reg. No. 333-73348) and
incorporated herein by reference).
+10.23 Second Amendment effective May 10, 2001 to BJ Services Company 2000 Incentive Plan (filed as
Appendix D to the Company's Proxy Statement dated April 10, 2001 and incorporated herein by
reference).
+*10.24 Third Amendment effective October 15, 2001 to BJ Services Company 2000 Incentive Plan.
</TABLE>
54
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<C> <S>
+10.25 BJ Services Supplemental Executive Retirement Plan effective October 1, 2000 (filed as Exhibit
10.15 to the Company's Annual Report on Form 10-K for the year ended September 30, 2000 and
incorporated herein by reference).
+10.26 Key Employee Security Option Plan (filed as Exhibit 10.14 to the Company's Annual Report on
Form 10-K for the year ended September 30, 1997 and incorporated herein by reference).
+*10.27 Directors' Benefit Plan, effective December 7, 2000.
+10.28 BJ Services Deferred Compensation Plan, as amended and restated effective October 1, 2000 (filed
as Exhibit 10.29 to the Company's Form 10-Q for the quarter ended March 31, 2001 and
incorporated herein by reference).
+10.29 Form of Amended and Restated Executive Severance Agreement between BJ Services Company
and certain executive officers (filed as Exhibit 10.28 to the Company's Form 10-Q for the quarter
ended March 31, 2000 and incorporated herein by reference).
*10.30 Credit Agreement, dated as of June 27, 2001 among the Company, the lenders from time to time
party thereto, Royal Bank of Canada and The Bank of New York, as Co-Syndication Agents, The
Royal Bank of Scotland plc and Bank One, N.A., as Co-Documentation Agents, and Bank of
America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
*10.31 Form of Revolving Loan Note and Swing Line Note pursuant to the Credit Agreement.
*10.32 364-Day Credit Agreement, dated as of June 27, 2001 among the Company, the lenders from time
to time party thereto, Royal Bank of Canada and The Bank of New York, as Co-Syndication Agents,
The Royal Bank of Scotland plc and Bank One, N.A. as Co-Documentation Agents, and Bank of
America, N.A., as Administrative Agent.
*10.33 Form of Promissory Note pursuant to the 364-Day Credit Agreement.
10.34 Trust Indenture and Security Agreement dated as of August 7, 1997 among First Security Bank,
National Association, BJ Services Equipment, L.P. and State Street Bank and Trust Company, as
Indenture Trustee (filed as Exhibit 10.15 to the Company's Annual Report on Form 10-K for the
year ended September 30, 1997 and incorporated herein by reference).
10.35 Indenture Supplement No. 1 dated as of August 8, 1997 between First Security Bank, as
Nonaffiliated Partner Trustee, and BJ Services Equipment, L.P., and State Street Bank and Trust
Company, as Indenture Trustee (filed as Exhibit 10.17 to the Company's Annual Report on Form
10-K for the year ended September 30, 1997 and incorporated herein by reference).
10.36 Amended and Restated Agreement of Limited Partnership dated as of August 7, 1997 of BJ Services
Equipment, L.P (filed as Exhibit 10.16 to the Company's Annual Report on Form 10-K for the year
ended September 30, 1997 and incorporated herein by reference).
10.37 Trust Indenture and Security Agreement dated as of December 15, 1999 among First Security Trust
Company of Nevada, BJ Services Equipment II, L.P. and State Street Bank and Trust Company, as
Indenture Trustee (filed as Exhibit 10.1 to the Company's Current Report on Form 8-K dated
December 15, 1999 and incorporated herein by reference).
10.38 Amended and Restated Agreement of Agreement of Limited Partnership dated as of December 15,
1999 of BJ Services Equipment II, L.P. (filed as Exhibit 10.2 to the Company's Current Report on
Form 8-K dated December 15, 1999 and incorporated herein by reference).
*21.1 Subsidiaries of the Company.
*23.1 Consent of Deloitte & Touche LLP.
</TABLE>
- --------
* Filed herewith.
+ Management contract or compensatory plan or arrangement.
55
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
BJ SERVICES COMPANY
By /s/ J.W. STEWART
-------------------------------------
J.W. Stewart
President and Chief Executive Officer
Date: December 18, 2001
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
/S/ J.W. STEWART Chairman of the Board, President, December 18, 2001
-------------------------- and Chief Executive Officer
J.W. Stewart (Principal Executive Officer)
/S/ MICHAEL MCSHANE Senior Vice President--Finance, December 18, 2001
-------------------------- Chief Financial Officer and
Michael McShane Director (Principal Financial
Officer)
/s/ JAMES HORSCH Controller (Principal Accounting December 18, 2001
-------------------------- Officer)
James Horsch
/S/ L. WILLIAM HEILIGBRODT Director December 18, 2001
--------------------------
L. William Heiligbrodt
/S/ JOHN R. HUFF Director December 18, 2001
--------------------------
John R. Huff
/S/ DON D. JORDAN Director December 18, 2001
--------------------------
Don D. Jordan
/S/ R.A. LEBLANC Director December 18, 2001
--------------------------
R.A. LeBlanc
/S/ MICHAEL E. PATRICK Director December 18, 2001
--------------------------
Michael E. Patrick
/S/ JAMES L. PAYNE Director December 18, 2001
--------------------------
James L. Payne
</TABLE>
56
<PAGE>
BJ SERVICES COMPANY
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
For the Years Ended September 30, 1999, 2000 and 2001
(in thousands)
<TABLE>
<CAPTION>
Additions
-------------------
Balance at Charged to Balance at
Beginning Charged to Other End of
of Period Expense Accounts Deductions Period
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
YEAR ENDED SEPTEMBER 30, 1999
Allowance for doubtful accounts receivable....... $ 9,090 $3,301 $10,344(3) $ 2,163(1) $20,572
Reserve for inventory obsolescence and adjustment 8,451 1,749 1,831(3) 2,356(2) 9,675
YEAR ENDED SEPTEMBER 30, 2000
Allowance for doubtful accounts receivable....... $20,572 $4,325 $ 1,154(3) $14,506(1) $11,545
Reserve for inventory obsolescence and adjustment 9,675 1,107 215(3) 1,776(2) 9,221
YEAR ENDED SEPTEMBER 30, 2001
Allowance for doubtful accounts receivable....... $11,545 $6,167 $ $ 7,336(1) $10,376
Reserve for inventory obsolescence and adjustment 9,221 1,779 38 2,382(2) 8,656
</TABLE>
- --------
(1) Deductions in the allowance for doubtful accounts principally reflect the
write-off of previously reserved accounts.
(2) Deductions in the reserve for inventory obsolescence and adjustment
principally reflect the sale or disposal of related inventory.
(3) Additions to the reserve principally resulting from acquisitions of
businesses.
57
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.12
<SEQUENCE>3
<FILENAME>dex1012.txt
<DESCRIPTION>EIGHTH AMEND. EFFECTIVE 10/15/2001 BJ INCENT PLAN
<TEXT>
<PAGE>
EXHIBIT 10.12
EXHIBIT "B"
Changes from current
plan are highlighted.
EIGHTH AMENDMENT TO
BJ SERVICES COMPANY 1995 INCENTIVE PLAN
WHEREAS, BJ Services Company (the "Company") has heretofore adopted the BJ
Services Company 1995 Incentive Plan (the "Plan");
WHEREAS, the Plan has heretofore been amended by seven separate amendments;
and
WHEREAS, the Company desires to amend the Plan in certain additional
respects;
NOW THEREFORE, the Plan shall be amended as follows, effective as of
October 15, 2001:
1. Paragraph 4 of Article IV shall be amended to read as follows:
"4. Calculation of Exercise Price. The exercise price to be paid
for each share of Common Stock deliverable upon exercise of each
option granted under Article IV shall be equal to the fair market
value per share of Common Stock at the time of the grant, which
shall be the per share price of the last sale of Common Stock in
regular trading on the New York Stock Exchange on the trading day
prior to the grant of such option as reported by The Wall Street
Journal. The exercise price for each option granted under Article
IV shall be subject to adjustment as provided in Article IV,
Paragraph 5(e).
2. Paragraphs 5(a) and 5(b) of Article IV and the introductory language at
the beginning of Article IV shall be amended to read as follows:
"5. Terms and Conditions of Options. Options granted under Article
IV shall be subject to the following terms and conditions and may
contain such additional terms and conditions, not inconsistent
with Article IV, as the Committee shall deem desirable:
(a) Option Period and Conditions and Limitations on
Exercise. Options granted under this Article IV shall be
exercisable ("Vested") and shall expire at such time or times
as the Committee, in its discretion, may establish in the
option agreement. No option shall expire later than the date
which is ten years after the date of the grant ("Option
Expiration Date"). Notwithstanding any provision in the option
agreement to the contrary, however, upon the occurrence of a
Change of Control, each option previously granted under
Article IV which is not then Vested shall become immediately
Vested.
(b) Termination of Directorship and Death. For purposes of
Article IV and each option granted under Article IV, a
Non-Employee Director's directorship shall be deemed to have
terminated at the close of Business on the day preceding the
first date on which he ceases to be a member of the Board for
any reason whatsoever (including his death). Unless otherwise
provided in the option
<PAGE>
agreement, if a Non-Employee Director's directorship is
terminated for any reason whatsoever (including his death),
each option granted to him under Article IV and all of his
rights thereunder shall wholly and completely terminate:
(i) At the time the Non-Employee Director's directorship is
terminated if his directorship is terminated as a
result of his removal from the Board for (A) fraud,
theft, or embezzlement committed against the Company or
a Subsidiary, affiliated entity or customer of the
Company, (B) Non-Employee Director's willful misconduct
in performance of his duties as Non-Employee Director
or (C) Non-Employee Director's final conviction of a
felony ("Cause");
(ii) At the expiration of a period of one year after the
Non-Employee Director's death (but in no event later
than the Option Expiration Date). An option granted
under Article IV may be exercised by the Non-Employee
Director's estate or by the person or persons who
acquire the right to exercise his option by bequest or
inheritance with respect to any or all of the shares
remaining subject to his option at the time of his
death;
(iii) At the expiration of a period of three years after the
Non-Employee Director's directorship is terminated if
such person's directorship is terminated as a result of
such person's resignation or removal from the Board
because of disability or if such termination occurs at
the end of the Director's term following a period of
service on the Board of at least three years (but in no
event later than the Option Expiration Date);
(iv) At the expiration of a period three months after the
Non-Employee Director's directorship is terminated for
any reason other than the reasons specified in
subparagraphs (i), (ii) or (iii) above, except as
otherwise provided in subparagraphs (v) or (vi) below
(but in no event later than the Option Expiration
Date);
(v) At the expiration of one year after the Non-Employee
Director's directorship is terminated if such
directorship is terminated (other than for Cause)
within the one-year period following a Change of
Control, unless subparagraphs (ii), (iii), (iv) or (vi)
or Paragraph 5(g) provides for a longer period (but in
no event later than the Option Expiration Date); or
(vi) At the date otherwise specified by the Committee, in
its discretion, but not later than the Option
Expiration Date."
3. The first sentence of Article IV, Paragraph 5(c) shall be amended to
read as follows:
"(c) Manner of Exercise. In order to exercise an option
granted under Article IV, the person or persons entitled to
exercise it shall deliver to the Company
<PAGE>
payment in full for the shares being purchased, together with
any required withholding tax as provided in Article VIII."
4. Paragraph 6 of Article IV shall be renumbered as Paragraph 7 and a new
Paragraph 6 shall be inserted to read as follows:
"6. Amendment. The Committee may, with the consent of the person
or persons entitled to exercise any outstanding option granted
under Article IV, amend such option. The Committee may at any time
or from time to time, in its discretion, in the case of any
nonqualified option previously granted under Article IV which is
not then immediately exercisable in full, accelerate the time or
times at which such option may be exercised to any earlier time or
times."
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.17
<SEQUENCE>4
<FILENAME>dex1017.txt
<DESCRIPTION>FIFTH AMEND. EFFECT. 12/4/2001 TO 1997 INCENT. PLA
<TEXT>
<PAGE>
EXHIBIT 10.17
Changes from current
plan are highlighted.
EXHIBIT "C"
FIFTH AMENDMENT TO
BJ SERVICES COMPANY 1997 INCENTIVE PLAN
WHEREAS, BJ Services Company (the "Company") has heretofore adopted the BJ
Services Company 1997 Incentive Plan (the "Plan");
WHEREAS, the Plan has heretofore been amended by three separate amendments
on July 22, 1999 (the "First Amendment"), on December 9, 1999 (the "Second
Amendment") and on March 22, 2001, (the "Third Amendment"); and
WHEREAS, the Company desires to amend the Plan in certain additional
respects;
NOW THEREFORE, the Plan shall be amended as follows, effective as of
October 15, 2001:
1. Paragraph 4 of Article IV shall be amended to read as follows:
"4. Calculation of Exercise Price. The exercise price to be paid
for each share of Common Stock deliverable upon exercise of each
option granted under Article IV shall be equal to the fair market
value per share of Common Stock at the time of the grant, which
shall be the per share price of the last sale of Common Stock in
regular trading on the New York Stock Exchange on the trading day
prior to the grant of such option as reported by The Wall Street
Journal. The exercise price for each option granted under Article
IV shall be subject to adjustment as provided in Article IV,
Paragraph 5(e)."
2. Paragraphs 5(a) and 5(b) of Article IV and the introductory language at
the beginning of Article IV shall be amended to read as follows:
"5. Terms and Conditions of Options. Options granted under Article
IV shall be subject to the following terms and conditions and may
contain such additional terms and conditions, not inconsistent
with Article IV, as the Committee shall deem desirable:
(a) Option Period and Conditions and Limitations on
Exercise. Options granted under this Article IV shall be
exercisable ("Vested") and shall expire at such time or times
as the Committee, in its discretion, may establish in the
option agreement. No option shall expire later than the date
which is ten years after the date of the grant ("Option
Expiration Date"). Notwithstanding any provision in the option
agreement to the contrary, however, upon the occurrence of a
Change of Control, each option previously granted under
Article IV which is not then Vested shall become immediately
Vested.
(b) Termination of Directorship and Death. For purposes of
Article IV and each option granted under Article IV, a
Non-Employee Director's directorship shall be deemed to have
terminated at the close of Business on the day preceding
<PAGE>
the first date on which he ceases to be a member of the
Board for any reason whatsoever (including his death).
Unless otherwise provided in the option agreement, if a
Non-Employee Director's directorship is terminated for any
reason whatsoever (including his death), each option granted
to him under Article IV and all of his rights thereunder
shall wholly and completely terminate:
(i) At the time the Non-Employee Director's directorship is
terminated if his directorship is terminated as a
result of his removal from the Board for (A) fraud,
theft, or embezzlement committed against the Company or
a Subsidiary, affiliated entity or customer of the
Company, (B) Non-Employee Director's willful misconduct
in performance of his duties as Non-Employee Director
or (C) Non-Employee Director's final conviction of a
felony ("Cause");
(ii) At the expiration of a period of one year after the
Non-Employee Director's death (but in no event later
than the Option Expiration Date). An option granted
under Article IV may be exercised by the Non-Employee
Director's estate or by the person or persons who
acquire the right to exercise his option by bequest or
inheritance with respect to any or all of the shares
remaining subject to his option at the time of his
death;
(iii) At the expiration of a period of three years after the
Non-Employee Director's directorship is terminated if
such person's directorship is terminated as a result of
such person's resignation or removal from the Board
because of disability or if such termination occurs at
the end of the Director's term following a period of
service on the Board of at least three years (but in no
event later than the Option Expiration Date);
(iv) At the expiration of a period three months after the
Non-Employee Director's directorship is terminated for
any reason other than the reasons specified in
subparagraphs (i), (ii) or (iii) above, except as
otherwise provided in subparagraphs (v) or (vi) below
(but in no event later than the Option Expiration
Date);
(v) At the expiration of one year after the Non-Employee
Director's directorship is terminated if such
directorship is terminated (other than for Cause)
within the one-year period following a Change of
Control, unless subparagraphs (ii), (iii), (iv) or (vi)
or Paragraph 5(g) provides for a longer period (but in
no event later than the Option Expiration Date); or
(vi) At the date otherwise specified by the Committee, in
its discretion, but not later than the Option
Expiration Date."
3. The first sentence of Article IV, Paragraph 5(c) shall be amended to
read as follows:
<PAGE>
"(c) Manner of Exercise. In order to exercise an option
granted under Article IV, the person or persons entitled to
exercise it shall deliver to the Company payment in full for
the shares being purchased, together with any required
withholding tax as provided in Article X."
4. Paragraph 6 of Article IV shall be renumbered as Paragraph 7 and a new
Paragraph 6 shall be inserted to read as follows:
"6. Amendment. The Committee may, with the consent of the person
or persons entitled to exercise any outstanding option granted
under Article IV, amend such option. The Committee may at any
time or from time to time, in its discretion, in the case of any
nonqualified option previously granted under Article IV which is
not then immediately exercisable in full, accelerate the time or
times at which such option may be exercised to any earlier time
or times."
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.19
<SEQUENCE>5
<FILENAME>dex1019.txt
<DESCRIPTION>AMEND. EFFECT. 9/23/1999 TO BJSC 1999 ESPP
<TEXT>
<PAGE>
Exhibit 10.19
AMENDMENT TO
BJ SERVICES COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, BJ Services Company (the "Company") has heretofore adopted the BJ
Services Company 1999 Employee Stock Purchase Plan (the "Plan"); and
WHEREAS, the Company desires to amend the Plan in certain respects;
NOW, THEREFORE, the Plan shall be amended as follows, effective as of the
date of adoption of this amendment by the Company:
1. The following sentence shall be added at the end of subparagraph 5(a) of
the Plan:
"Notwithstanding the foregoing, if, as of any date that the Plan is in
effect, there are not sufficient shares of Stock available under the
Plan to allow for the grant to each participant of an option covering
the number of shares determined in accordance with the preceding
sentence, each participant shall be granted an option under the Plan
for his or her pro-rata share of the total number of shares of Stock
then available under the Plan."
2. Subparagraph 5(g) of the Plan shall be deleted and the following shall
be substituted therefor:
"(g) CONTINUING ELECTION. Subject to the limitation set forth
in subparagraph 5(e), a participant (i) who has elected to participate
in the Plan pursuant to subparagraph 5(b) as of a date of grant and
(ii) who takes no action to change or revoke such election as of the
next following date of grant and/or as of any subsequent date of grant
prior to any such respective date of grant shall be deemed to have made
the same election, including the same attendant payroll deduction
authorization, for such next following and/or subsequent date(s) of
grant as was in effect immediately prior to such respective date of
grant. If a participant's payroll deductions are limited by
subparagraph 5(e) for the option period beginning in any calendar year,
then, subject to the limitation set forth in subparagraph 5(e), such
payroll deductions shall recommence at the rate provided in such
participant's payroll deduction authorization for the option period
beginning in the following calendar year, unless the participant
changes the amount of his payroll deduction authorization pursuant to
paragraph 5, withdraws from the Plan as provided in paragraph 7, or is
terminated from participation in the Plan as provided in paragraph 8."
3. The following new subparagraph 5(h) shall be added to Paragraph 5 of the
Plan:
"(h) Special Rules for Option Period Commencing on October 1,
1999. Notwithstanding any provision of the Plan to the contrary, with
respect to
<PAGE>
the option period commencing on October 1, 1999, each eligible
employee's election to participate in the Company's employee stock
purchase plan shall apply first to the BJ Services 1990 Employee Stock
Purchase Plan (the `1990 Plan'). If the number of shares of Stock
available under the 1990 Plan is not sufficient to allow for the grant
to each participant of an option covering the number of shares of
Stock determined in accordance with the penultimate sentence of
subparagraph 5(a) of the 1990 Plan (the `Elected Shares'), each
participant (i) shall be granted an option under the 1990 Plan
covering such participant's pro-rata share of the total number of
shares of Stock then available under the 1990 Plan in accordance with
the last sentence of subparagraph 5(a) thereof, (ii) shall be deemed
to have elected to participate in the Plan to the extent of the excess
of such participant's number of Elected Shares over the number of
shares of Stock subject to the option granted to such participant
under the 1990 Plan (the `Excess Shares') and (iii) shall be granted
an option under the Plan covering such Excess Shares. With respect to
the option period commencing on October 1, 1999, options shall be
granted under the Plan solely in accordance with the preceding
sentence. Finally, with respect to any option period commencing after
October 1, 1999, each eligible employee's election to participate in
the Company's employee stock purchase plan shall apply solely to the
Plan."
4. As amended hereby, the Plan is specifically ratified and reaffirmed.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.20
<SEQUENCE>6
<FILENAME>dex1020.txt
<DESCRIPTION>2ND AMEND. EFFECT. 9/1/2001 TO BJSC 1999 ESPP
<TEXT>
<PAGE>
Exhibit 10.20
EXHIBIT "A"
SECOND AMENDMENT TO
BJ SERVICES COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, BJ SERVICES COMPANY (the "Company") has heretofore adopted the BJ
SERVICES COMPANY 1999 EMPLOYEE STOCK PURCHASE PLAN (the "Plan"); and
WHEREAS, the Company desires to amend the Plan in certain respects;
NOW, THEREFORE, the Plan shall be amended as follows, effective as of
September 1, 2001:
1. The fifth sentence of subparagraph 5(f) of the Plan shall be deleted and
the following shall be substituted therefor:
"Further, notwithstanding the preceding provisions of this subparagraph
5(f), if a participant takes a leave of absence that is described in
the first or third sentence of this subparagraph 5(f) and such leave of
absence exceeds the Maximum Period, then he shall be considered to have
withdrawn from the Plan pursuant to the provisions of paragraph 7
hereof and terminated his employment for purposes of the Plan on the
day immediately following the last day of the Maximum Period. For
purposes of the preceding sentence, the term "Maximum Period" shall
mean, with respect to a participant, the 90-day period beginning on the
first day of the participant's leave of absence; provided, however,
that if the participant's right to reemployment by the Company (or a
parent or subsidiary corporation of the Company) is guaranteed either
by statute or contract, then such 90-day period shall be extended until
the last day upon which such reemployment rights are so guaranteed."
2. As amended hereby, the Plan is specifically ratified and reaffirmed.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.24
<SEQUENCE>7
<FILENAME>dex1024.txt
<DESCRIPTION>3RD. AMEND. EFFECT. 10/15/2001 TO BJSC 2000 INCENT
<TEXT>
<PAGE>
EXHIBIT 10.24
Changes from current
plan are highlighted.
EXHIBIT "D"
THIRD AMENDMENT TO
BJ SERVICES COMPANY 2000 INCENTIVE PLAN
WHEREAS, BJ Services Company (the "Company") has heretofore adopted the BJ
Services Company 2000 Incentive Plan (the "Plan");
WHEREAS, the Plan has heretofore been amended by two separate amendments
adopted on March 22, 2001, (the "First Amendment" and the "Second Amendment");
and
WHEREAS, the Company desires to amend the Plan in certain additional
respects;
NOW THEREFORE, the Plan shall be amended as follows, effective as of
October 15, 2001:
1. Paragraphs 5(a) and 5(b) of Article IV and the introductory language
at the beginning of Article IV shall be amended to read as follows:
"5. Terms and Conditions of Options. Options granted under Article IV
shall be subject to the following terms and conditions and may contain
such additional terms and conditions, not inconsistent with Article
IV, as the Committee shall deem desirable:
(a) Option Period and Conditions and Limitations on Exercise.
Options granted under this Article IV shall be exercisable ("Vested")
and shall expire at such time or times as the Committee, in its
discretion, may establish in the option agreement. No option shall
expire later than the date which is ten years after the date of the
grant ("Option Expiration Date"). Notwithstanding any provision in the
option agreement to the contrary, however, upon the occurrence of a
Change of Control, each option previously granted under Article IV
which is not then Vested shall become immediately Vested.
(b) Termination of Directorship and Death. For purposes of
Article IV and each option granted under Article IV, a Non-Employee
Director's directorship shall be deemed to have terminated at the
close of Business on the day preceding the first date on which he
ceases to be a member of the Board for any reason whatsoever
(including his death). Unless otherwise provided in the option
agreement, if a Non-Employee Director's directorship is terminated for
any reason whatsoever (including his death), each option granted to
him under Article IV and all of his rights thereunder shall wholly and
completely terminate:
(i) At the time the Non-Employee Director's directorship is
terminated if his directorship is terminated as a result of
his removal from the Board for (A) fraud, theft, or
embezzlement committed against the Company or a Subsidiary,
affiliated entity or customer of the Company, (B) Non-
Employee Director's willful misconduct in performance of his
duties as
<PAGE>
Non-Employee Director or (C) Non-Employee Director's final
conviction of a felony ("Cause");
(ii) At the expiration of a period of one year after the Non-Employee
Director's death (but in no event later than the Option
Expiration Date). An option granted under Article IV may be
exercised by the Non-Employee Director's estate or by the person
or persons who acquire the right to exercise his option by
bequest or inheritance with respect to any or all of the shares
remaining subject to his option at the time of his death;
(iii) At the expiration of a period of three years after the
Non-Employee Director's directorship is terminated if such
person's directorship is terminated as a result of such person's
resignation or removal from the Board because of disability or if
such termination occurs at the end of the Director's term
following a period of service on the Board of at least three
years (but in no event later than the Option Expiration Date);
(iv) At the expiration of a period three months after the Non-Employee
Director's directorship is terminated for any reason other than
the reasons specified in subparagraphs (i), (ii) or (iii) above,
except as otherwise provided in subparagraphs (v) or (vi) below
(but in no event later than the Option Expiration Date);
(v) At the expiration of one year after the Non-Employee Director's
directorship is terminated if such directorship is terminated
(other than for Cause) within the one-year period following a
Change of Control, unless subparagraphs (ii), (iii), (iv) or (vi)
or Paragraph 5(g) provides for a longer period (but in no event
later than the Option Expiration Date); or
(vi) At the date otherwise specified by the Committee, in its
discretion, but not later than the Option Expiration Date."
2. The first sentence of Article IV, Paragraph 5(c) shall be amended to read
as follows:
"(c) Manner of Exercise. In order to exercise an option granted under
Article IV, the person or persons entitled to exercise it shall
deliver to the Company payment in full for the shares being purchased,
together with any required withholding tax as provided in Article X."
3. Paragraph 6 of Article IV shall be renumbered as Paragraph 7 and a new
Paragraph 6 shall be inserted to read as follows:
"6. Amendment. The Committee may, with the consent of the person or
persons entitled to exercise any outstanding option granted under
Article IV, amend such option. The Committee may at any time or from
time to time, in its discretion, in the case of any nonqualified
option previously granted under Article IV which is
<PAGE>
not then immediately exercisable in full, accelerate the time or
times at which such option may be exercised to any earlier time
or times."
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.27
<SEQUENCE>8
<FILENAME>dex1027.txt
<DESCRIPTION>BENEFITS PLAN
<TEXT>
<PAGE>
Exhibit 10.27
BJ SERVICES COMPANY
DIRECTORS' BENEFIT PLAN
Effective December 7, 2000
<PAGE>
BJ SERVICES COMPANY, a Delaware corporation (the "Company"), hereby
establishes this BJ SERVICES COMPANY DIRECTORS' BENEFIT PLAN, effective as of
December 7, 2000, to help attract and continue to retain highly qualified
Directors for the Company by providing deferred compensation in recognition of
services performed for the Company.
ARTICLE I
DEFINITIONS
Where the following words and phrases appear in the Plan, they shall have
the respective meanings set forth below, unless their context clearly indicates
to the contrary:
1.1 Administrator: The person or persons appointed by the Board to administer
the Plan.
1.2 Affiliate: Any person or entity who or which controls, is controlled by or
is under common control with the Company. For purposes of this definition,
the terms "control" and "controlled by" as used with respect to the Company
or any person or entity shall mean possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of the Company or such person or entity, whether through the ownership of
an equity interest in the Company or such person or entity, by contract or
otherwise.
1.3 Applicable Interest Rate: The average of the annual rate of interest on
30-year Treasury securities for any month as published by the Federal
Reserve Board (or some other prevailing interest rate selected by the
Administrator), for the longer of (a) the period beginning on the Effective
Date and ending upon the month preceding the Participant's Termination Date
or (b) the five-year period ending on the month preceding the Participant's
Termination Date.
1.4 Benefit: The benefit payable to a Participant as specified in Article III,
subject to the provisions of Article IV.
1.5 Benefit Commencement Date: The date, determined under Article III, as of
which a Participant begins to receive payment of his Benefit under the
Plan.
1.6 Benefit Payment Period: The period, determined under Article III, over
which a Benefit is to be paid under the Plan.
1.7 Board: The Board of Directors of the Company.
1.8 Company: BJ Services Company, a Delaware corporation.
1.9 Competitor: A company, corporation, enterprise, firm, limited partnership,
partnership, person, sole proprietorship or any other business entity
determined by the Board in its sole discretion to be competitive with the
business of the Company, its Subsidiaries or its Affiliates.
1.10 Director: An individual, elected to the Board by the stockholders of the
Company or by the Board under applicable corporate law, who is serving on
the Board on the Effective Date or
1
<PAGE>
is elected to the Board after the Effective Date and who is not an employee
of the Company or any Subsidiary.
1.11 Effective Date: December 7, 2000.
1.12 Last Annual Retainer: The annual retainer payable by the Company to
Directors in effect on a Participant's Termination Date.
1.13 Net Present Value: The lump sum amount that is equal in value to the
applicable portion of a Participant's Benefit, based on an interest rate
equal to the Applicable Interest Rate.
1.14 Participant: A Director who has commenced, but not terminated,
participation in the Plan as provided in Article II.
1.15 Period of Service: Each period of an individual's service as a Director
commencing on the effective date of his election or re-election to the
Board and ending on a Termination Date, including periods commencing prior
to the Effective Date.
1.16 Plan: This BJ Services Company Directors' Benefit Plan, as the same may be
amended from time to time.
1.17 Subsidiary: At any given time, any other corporation of which an aggregate
of 80% or more of its outstanding voting stock is owned of record or
beneficially, directly or indirectly, by the Company or any other of its
Subsidiaries.
1.18 Termination Date: The date on which a Director ceases to serve the Company
as a Director by reason of his retirement, declination to stand for
re-election, resignation, disability, removal, death or any other event.
1.19 Trust: Any trust created pursuant to the provisions of Article VIII.
1.20 Trust Agreement: The agreement establishing the Trust.
1.21 Trustee: The entity named from time to time as trustee in the Trust
Agreement and its successors.
1.22 Trust Fund: The assets held under the Trust as they may exist from time to
time.
1.23 Years of Service: Each full year of an individual's aggregate Periods of
Service.
ARTICLE II
PARTICIPATION
2.1 Admission as a Participant
A Director shall become a Participant on the later of the date on
which he completes three Years of Service or the Effective Date.
Notwithstanding the foregoing, in the event a Director dies prior to
completing three Years of Service and otherwise prior to such
2
<PAGE>
Director's Termination Date, such Director shall be considered to have been
a Participant on the date of his death for all purposes under the Plan.
2.2 Termination of Participation
A Participant shall cease participation in the Plan upon the earlier
of his death or the completion of his Benefit Payment Period.
ARTICLE III
DEFERRED COMPENSATION BENEFIT
3.1 Benefit Payment Period
A Participant's Benefit Payment Period shall be a period of time equal
to the lesser of ten years or the total number of Years of Service
completed by such Participant as of his Termination Date, and such period
shall commence on such Participant's Benefit Commencement Date.
3.2 Benefit Commencement Date
A Participant's Benefit Commencement Date shall be the first day of
the January coincident with or next succeeding such Participant's
Termination Date. The initial Benefit payment made to a Participant
pursuant to the provisions of this Article III shall be made as soon as
administratively practicable following the Participant's Benefit
Commencement Date, and subsequent Benefit payments payable to such
Participant, if any, shall be made on the anniversary of the date of such
initial payment.
3.3 Benefit Amount
Subject to the provisions of Article IV, a Participant shall be
entitled to receive a Benefit based on his Last Annual Retainer for each of
his Years of Service completed as of his Termination Date, payable in the
form of equal annual cash installments during such Participant's Benefit
Payment Period. The amount of the annual installment shall be determined as
follows:
(a) In the event that the Participant's Years of Service is ten or fewer
years, the annual installment shall be equal to the Last Annual
Retainer.
(b) In the event that the Participant's Years of Service exceeds ten
years, the annual installment shall be calculated as follows:
1. First, the Net Present Value of a series of payments equal to the
Last Annual Retainer for a period of time equal to the
Participant's Years of Service shall be calculated.
2. Second, the annual installment shall be calculated so that the
Net Present Value of a series of such annual installments paid
over a
3
<PAGE>
period of ten years equals the Net Present Value obtained in
Section 3.3(b)1. above.
3.4 Resumption of Service as a Director
(a) If payment of a Participant's Benefit hereunder has commenced, such
payments shall be suspended on the effective date of such
Participant's re-election to the Board as a Director.
(b) Upon a Participant's Termination Date following his re-election to the
Board, his Benefit shall be recomputed pursuant to the provisions of
this Article III to reflect such Participant's additional Years of
Service as a Director following his re-election to the Board and the
Last Annual Retainer in effect on such Participant's most recent
Termination Date; provided, however, that (i) such Benefit shall be
reduced by an amount equal to the payments, if any, such Participant
received prior to his re-election to the Board and (ii) such
Participant's remaining Benefit Payment Period shall be determined (A)
by increasing such Benefit Payment Period (but not in excess of the
maximum period provided in Section 3.1) by the Participant's
additional Years of Service as a Director following his re-election to
the Board and (B) by reducing such Benefit Payment Period by the
number of years for which Benefit payments were made prior to such
Participant's re-election to the Board.
ARTICLE IV
BENEFIT FORFEITURES
Any portion of the Benefit of a Participant not previously paid shall be
forfeited to the Company upon a determination by the Board, in its sole
discretion, that such Participant has, after the Effective Date, without the
consent of the Board:
(a) Joined the board of directors of, managed, operated, participated in a
material way in, entered employment with, performed consulting (or any
other) services for, or otherwise been connected in any material
manner with a Competitor; or
(b) Directly or indirectly acquired an equity interest of five percent or
greater in a Competitor.
ARTICLE V
DEATH BENEFIT
Upon the death of a Participant, whether before or after such Participant's
Benefit Commencement Date, such Participant's beneficiary or beneficiaries
(designated by such Participant under rules and procedures established by the
Administrator), or in the absence of such designated beneficiary or
beneficiaries, such Participant's surviving spouse, or if there is no such
surviving spouse, such Participant's estate, shall be entitled to receive the
remaining payments of the Benefit to which such Participant was entitled, if
any. Upon the subsequent death of a Participant's beneficiary or surviving
spouse who is receiving payments hereunder, any Benefit payments remaining under
the Plan shall be paid to the estate of such beneficiary or surviving spouse.
All Benefit payments made pursuant to this Article V following the death of a
Participant shall be made over such Participant's Benefit Payment Period in
accordance with the provisions of Article III;
4
<PAGE>
provided, however, that any Benefit payments to be made to an estate as a result
of the death of a Participant, his beneficiary or his surviving spouse shall be
paid in a lump-sum that is the Net Present Value of such payments, with the
interest rate used for such Net Present Value determined pursuant to Section 1.3
hereof, but substituting the date of such death for the Participant's
Termination Date.
ARTICLE VI
ADMINISTRATION OF THE PLAN
6.1 Administrator
The Board of Directors shall appoint an Administrator to administer
the Plan who shall serve at the pleasure of the Board. The Administrator
shall maintain complete and adequate records pertaining to the Plan,
including, but not limited to, Participants' Benefits, amounts transferred
to the Trust, reports from the Trustee and all other records which shall be
necessary or desirable in the proper administration of the Plan.
6.2 Indemnification
(a) The Company shall indemnify the Administrator and/or any of its
delegates against the reasonable expenses, including attorneys' fees,
actually and appropriately incurred by them in connection with the
defense of any action, suit or proceeding, or in connection with any
appeal thereto, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the
Plan (including any action or failure to act constituting negligence)
and against all amounts paid by them in settlement thereof and against
all amounts paid by them in satisfaction of a judgment in any such
action, suit or proceeding, except in relation to matters as to which
it shall be adjudged in a suit of final adjudication that such
individual is liable for gross negligence, fraud, deliberate
dishonesty or willful misconduct in the performance of his duties.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity
may be sought pursuant to this Section 6.2, such person (the
"Indemnified Party") shall promptly notify the Company in writing. No
indemnification provided for in Section 6.2(a) shall be available to
any party who shall fail to give notice as provided in this Section
6.2(b) if the Company was unaware of the proceeding to which such
notice would have related and was prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
Company from any liability which it may have to the Indemnified Party
for contribution or otherwise than on account of the provisions of
Section 6.2(a). In case any such proceeding shall be brought against
any Indemnified Party and it shall notify the Company of the
commencement thereof, the Company shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such Indemnified Party and shall
pay as incurred the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the Company shall pay as incurred the
fees and expenses of the counsel retained by the Indemnified Party in
the event (i) the Company and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii)
5
<PAGE>
the named parties to any such proceeding (including any impleaded
parties) include both the Company and the Indemnified Party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Company shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses or more than one separate
firm for all such Indemnified Parties. Such firm shall be designated
in writing by the Company. The Company shall not be liable for any
settlement of any proceeding effected without its written consent but
if settled with such consent or if there be a final judgment for the
plaintiff, the Company agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or
judgment.
ARTICLE VII
NATURE OF PLAN
This Plan is intended to constitute an unfunded, unsecured promise by the
Company to pay Benefits to each Participant (or his beneficiary) as herein
provided out of the Company's general assets. The adoption of this Plan and any
setting aside of amounts by the Company with which to discharge its obligations
hereunder shall not be deemed to create a trust; legal and equitable title to
any funds so set aside shall remain in the Company, and any recipient of Benefit
payments hereunder shall have no security or other interest in such funds. Any
and all funds so set aside shall remain subject to the claims of the general
creditors of the Company, present and future. This provision shall not require
the Company to set aside any funds, but the Company may set aside such funds if
it chooses to do so.
ARTICLE VIII
FUNDING OF OBLIGATION
8.1 Funding
Article VII above to the contrary notwithstanding, the Company may
fund all or part of its obligation hereunder by transferring assets to a
Trust if the provisions of the Trust Agreement creating the Trust require
the use of the Trust's assets to satisfy claims of the Company's general
unsecured creditors in the event of the Company's insolvency and provide
that no Participant shall at any time have a prior claim to such assets.
The assets of the Trust shall not be deemed to be assets of this Plan.
8.2 Source of Payment
If a Trust is created hereunder the Administrator shall determine
whether any payment to be made to a Participant under the provisions of the
Plan is to be made directly by the Company, from the Trust Fund or by a
combination of such sources except to the extent the provisions of the
Trust Agreement specify payment from the Trust Fund. The Plan shall be
deemed to authorize any payment of a Participant's Benefit from the Trust
Fund to the extent such payment is required by the provisions of the Trust
Agreement.
6
<PAGE>
ARTICLE IX
TERMINATION OF THE PLAN
The Board of Directors may terminate the Plan at any time. Upon termination
of the Plan, each Participant's Benefit shall be determined and commenced
pursuant to Article III hereof, but substituting the date of such termination
for the Participant's Termination Date. Further, Benefit payments payable after
such termination shall be paid in accordance with the provisions of Articles III
and V hereof. Finally, if the Plan is terminated, Participants shall accrue no
additional Benefits hereunder.
ARTICLE X
AMENDMENT OF THE PLAN
The Board of Directors may, without the consent of Participants or their
beneficiaries, amend the Plan at any time and from time to time, provided,
however, that no such amendment may deprive a Participant of the right to
receive his Benefit or be retroactive in effect to the prejudice of any
Participant.
ARTICLE XI
GENERAL PROVISIONS
11.1 No Preference over Creditors
No Participant shall have any preference over the general creditors of
the Company in the event of the Company's insolvency.
11.2 Incompetency of Payee
If the Administrator receives evidence satisfactory to him that any
person entitled to receive a payment hereunder is, at the time the benefit
is payable, physically, mentally or legally incompetent to receive such
payment and to give a valid receipt therefor, and that an individual or
institution is then maintaining or has custody of such person and that no
guardian, committee or other representative of the estate of such person
has been duly appointed, the Administrator may direct that such payment be
paid to such individual or institution maintaining or having custody of
such person, and the receipt of such individual or institution shall be
valid and a complete discharge for the payment of such benefit.
11.3 Direct Deposit of Payments
Payments to be made hereunder may, at the written request of the
Participant, be made to a bank account designated by such Participant,
provided that deposits to the credit of such Participant in any bank or
trust company shall be deemed payment into his hands.
11.4 Construction of Plan
Wherever appropriate herein, words used in the singular shall be
considered to include the plural, and words used in the plural shall be
considered to include the singular.
7
<PAGE>
The masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender.
11.5 Benefits Not Assignable
Benefits provided under the Plan may not be assigned or alienated,
either voluntarily or involuntarily, other than by will or by the
applicable laws of descent and distribution.
11.6 Controlling Law
THE LAWS OF THE STATE OF TEXAS SHALL CONTROL THE INTERPRETATION AND
PERFORMANCE OF THE TERMS OF THE PLAN. THE PLAN IS NOT INTENDED TO QUALIFY
UNDER SECTION 401(a) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
TO COMPLY WITH THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED.
EXECUTED effective as of December 7, 2000.
BJ SERVICES COMPANY
By:_________________________________
8
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.30
<SEQUENCE>9
<FILENAME>dex1030.txt
<DESCRIPTION>CREDIT AGREEMENT DATED AS OF JUNE 27, 2001
<TEXT>
<PAGE>
Exhibit 10.30
CREDIT AGREEMENT
Dated as of June 27, 2001
among
BJ SERVICES COMPANY,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
Royal Bank of Canada and The Bank of New York,
as Co-Syndication Agents,
The Royal Bank of Scotland plc
and
Bank One, N.A.,
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 16
1.03 Accounting Terms 17
ARTICLE II. The Commitments and Credit Extensions 17
2.01 Revolving Loans 17
2.02 Borrowings, Conversions and Continuations of
Revolving Loans 17
2.03 Letters of Credit 19
2.04 Swing Line Loans 26
2.05 Prepayments 29
2.06 Reduction or Termination of Commitments 29
2.07 Repayment of Loans 30
2.08 Interest 30
2.09 Fees 30
2.10 Computation of Interest and Fees 31
2.11 Evidence of Debt 31
2.12 Payments Generally 32
2.13 Sharing of Payments 33
2.14 Increase in Commitments 34
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY 35
3.01 Taxes 35
3.02 Illegality 36
3.03 Inability to Determine Rates 37
3.04 Increased Cost and Reduced Return; Capital
Adequacy; Reserves on Eurodollar Rate Loans 37
3.05 Funding Losses 38
3.06 Matters Applicable to all Requests for
Compensation 38
3.07 Survival 39
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE IV. Conditions Precedent To Credit Extensions 39
4.01 Conditions of Initial Credit Extension 39
4.02 Conditions to all Credit Extensions 40
ARTICLE V. REPRESENTATIONS AND WARRANTIES 41
5.01 Existence, Qualification and Power;
Compliance with Laws 41
5.02 Authorization; No Contravention 41
5.03 Governmental Authorization 41
5.04 Binding Effect 41
5.05 Financial Statements; No Material Adverse
Effect 42
5.06 Litigation 42
5.07 No Default 42
5.08 Environmental Compliance 42
5.09 Insurance 42
5.10 Taxes 43
5.11 ERISA Compliance 43
5.12 Subsidiaries 43
5.13 Margin Regulations; Investment Company Act;
Public Utility Holding Company Act 43
5.14 Disclosure 44
5.15 Intellectual Property; Licenses, Etc 44
ARTICLE VI. AFFIRMATIVE COVENANTS 44
6.01 Financial Statements 44
6.02 Certificates; Other Information 45
6.03 Notices 45
6.04 Preservation of Existence, Etc 46
6.05 Maintenance of Properties 46
6.06 Maintenance of Insurance 46
6.07 Compliance with Laws 46
6.08 Books and Records 46
6.09 Inspection Rights 46
6.10 Use of Proceeds 47
ARTICLE VII. NEGATIVE COVENANTS 47
7.01 Liens 47
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
7.02 Subsidiary Indebtedness 49
7.03 Fundamental Changes 49
7.04 Change in Nature of Business 49
7.05 Transactions with Affiliates 49
7.06 Use of Proceeds 50
7.07 Subsidiary Distributions 50
7.08 Financial Covenants 50
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES 50
8.01 Events of Default 50
8.02 Remedies Upon Event of Default 52
ARTICLE IX. ADMINISTRATIVE AGENT 53
9.01 Appointment and Authorization of
Administrative Agent 53
9.02 Delegation of Duties 53
9.03 Liability of Administrative Agent 53
9.04 Reliance by Administrative Agent 54
9.05 Notice of Default 54
9.06 Credit Decision; Disclosure of Information
by Administrative Agent 55
9.07 Indemnification of Administrative Agent 55
9.08 Administrative Agent in its Individual
Capacity 56
9.09 Successor Administrative Agent 56
9.10 Other Agents; Arranger 57
ARTICLE X. MISCELLANEOUS 57
10.01 Amendments, Etc 57
10.02 Notices and Other Communications;
Facsimile Copies 58
10.03 No Waiver; Cumulative Remedies 59
10.04 Attorney Costs, Expenses and Taxes 59
10.05 Indemnification by the Borrower 60
10.06 Payments Set Aside 60
10.07 Successors and Assigns 61
10.08 Confidentiality 64
10.09 Set-off 64
10.10 Interest Rate Limitation 65
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
10.11 Counterparts 65
10.12 Integration 65
10.13 Survival of Representations and Warranties 65
10.14 Severability 66
10.15 Foreign Lenders 66
10.16 Removal and Replacement of Lenders 66
10.17 Governing Law 67
10.18 Waiver of Right to Trial by Jury 68
10.19 ENTIRE AGREEMENT 68
SCHEDULES
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.08 Environmental Matters
5.09 Insurance
5.11 ERISA Matters
5.12 Subsidiaries and Other Equity Investments
5.15 Intellectual Property Matters
7.01 Existing Liens
10.02 Eurodollar and Domestic Lending Offices,
Addresses for Notices
EXHIBITS
Form of
A Revolving Loan Notice
B [Reserved]
C Swing Line Loan Notice
D-1 Revolving Loan Note
D-2 Swing Line Note
E Compliance Certificate
F Assignment and Assumption Agreement
G Reserved
H-1 Opinion of Andrews & Kurth, L.L.P.
H-2 Opinion of Borrower's Internal Counsel
</TABLE>
iv
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of June 27, 2001, among BJ
SERVICES COMPANY, a Delaware corporation (the "Borrower"), each lender from time
to time party hereto (collectively, the "Lenders" and individually, a "Lender"),
Royal Bank of Canada and The Bank of New York, as Co-Syndication Agents, The
Royal Bank of Scotland plc and Bank One, N.A., as Co-Documentation Agents, and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.
The Borrower has requested that the Lenders, the Swing Line Lender and the
L/C Issuer make Credit Extensions (as herein defined) available to the Borrower
and each of the Lenders, the Swing Line Lender and the L/C Issuer have agreed to
make such Credit Extensions available to the Borrower on the terms and
conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents and any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders in writing.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of such Person
whether by contract, ownership of voting securities or otherwise.
"Agent-Related Persons" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger and the L/C Issuer), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Aggregate Commitments" has the meaning set forth in the definition of
"Commitment."
"Agreement" means this Credit Agreement as it may be amended, supplemented,
renewed, extended or otherwise modified from time to time.
1
<PAGE>
"Applicable Margin" means, with respect to Eurodollar Loans, the applicable
percent determined on the basis of the Debt Rating as applicable from time to
time and as specified in the Pricing Grid.
"Arranger" means Banc of America Securities LLC, a limited liability
company organized under the laws of Delaware in its capacity as sole lead
arranger and sole book manager.
"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees and disbursements
of any law firm or other external counsel.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries for the fiscal year ended
September 30, 2000, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of the
Borrower and its Consolidated Subsidiaries.
"Bank of America" means Bank of America, N.A., a national banking
association with its principal place of business in Charlotte, NC.
"Bankruptcy Code" means Title 11, United States Code, Section 101 et seq.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate" of interest. Such rate is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Revolving Loan" means a Revolving Loan that is a Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph hereof.
"Borrowing" means a Revolving Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means any day other than a Saturday, Sunday, or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, Houston, Texas, San Francisco, California or New York, New York and,
if "Business Day" relates to any Eurodollar Rate Loan, Business Day means any
such Business Day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
2
<PAGE>
"Capitalization Ratio" means, at any time, the ratio of Consolidated Funded
Indebtedness to Consolidated Total Capitalization.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash, deposit account balances or letter(s)
of credit pursuant to documentation in form and substance and, in the case of
letter(s) of credit, issued by an issuer, reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents and issuer(s) are
hereby consented to by the Lenders). Derivatives of such term shall have
corresponding meanings.
"Change of Control" means (a) purchase or acquisition, directly or
indirectly, by any "person" or "group" within the meaning of Section 13(d)(3)
and 14(d)(2) of the Exchange Act (a "Group"), of "beneficial ownership" (as such
term is defined in Rule 13d-3 under the Exchange Act) of securities of the
Borrower which, together with any securities owned beneficially by any
"affiliates" or "associates" of such Group (as such terms are defined in Rule
12b-2 under the Exchange Act), shall represent more than fifty percent (50%) of
the combined voting power of the Borrower's securities which are entitled to
vote generally in the election of directors and which are outstanding on the
date immediately prior to the date of such purchase or acquisition; or (b) a
sale of all or substantially all of the assets of the Borrower and its
Subsidiaries taken as a whole to any Person or Group (other than to another
Subsidiary); or (c) the liquidation or dissolution of the Borrower; or (d) the
first day on which a majority of the Board of Directors of the Borrower are not
Continuing Directors (as herein defined). As herein defined, "Continuing
Directors" means any member of the Board of Directors of the Borrower who (x) is
a member of such Board of Directors as of the date of this Agreement or (y) was
nominated for election or elected to such Board of Directors with the
affirmative vote of two-thirds of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or election.
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of
Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Co-Documentation Agents" has the meaning specified in the introductory
paragraph hereof.
"Co-Syndication Agents" has the meaning specified in the introductory
paragraph hereof.
"Combined Aggregate Commitments" means the Aggregate Commitments, as
defined in this Agreement, plus the Aggregate Commitments, as defined in the
364-Day Credit Agreement; the amount of which Combined Aggregate Commitments
equals $400,000,000 as of the Closing Date, as the same may be increased or
reduced after the Closing Date pursuant to the terms hereof and of the 364-Day
Credit Agreement, respectively.
"Combined Outstanding Amount" means (i) the Outstanding Amount of Revolving
Loans made pursuant to this Agreement plus the Outstanding Amount (as defined in
the 364-Day
3
<PAGE>
Credit Agreement) of Revolving Loans made pursuant to the 364-Day Credit
Agreement plus (ii) the Outstanding Amount of Swing Line Loans and L/C
Obligations.
"Commitment" means, as to each Lender, its obligation to (a) make Revolving
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.01, as such amount may be
reduced, increased or adjusted from time to time in accordance with this
Agreement, including Sections 2.06 and 2.14, and "Aggregate Commitments" shall
mean the Commitments of all Lenders; the amount of which Aggregate Commitments
equals $200,000,000 as of the Closing Date, as the same may be increased or
reduced after the Closing Date pursuant to the terms hereof.
"Commitment Fee" has the meaning set forth in Section 2.09(a).
"Compliance Certificate" means a certificate substantially in the form of
Exhibit E.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Consolidated Subsidiaries on a consolidated basis, an amount equal to the sum of
(a) Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount
of taxes, based on or measured by income, used or included in the determination
of such Consolidated Net Income, plus (d) the amount of depreciation and
amortization expense deducted in determining such Consolidated Net Income;
provided, however, that Consolidated Net Income shall be computed for the
purposes of this definition without regard to non-cash writeups and writedowns,
and without giving effect to extraordinary losses or extraordinary gains for
such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Borrower and its Consolidated Subsidiaries on a consolidated basis, the
sum, without duplication, of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) in respect of capital
leases, the capitalized amount thereof that would appear on the balance sheet of
such Person prepared as of such date in accordance with GAAP, (c) Redeemable
Preferred Stock valued at the applicable liquidation preference as of such date
of determination, and (d) all Guaranty Obligations with respect to Indebtedness
of the types specified in subsections (a), (b) and (c) above of Persons other
than the Borrower or any Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower and
its Consolidated Subsidiaries on a consolidated basis, the sum of, without
duplication, (a) all interest, premium payments, fees, charges and related
expenses of the Borrower and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, plus (b) the portion of rent expense of the Borrower and its
Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP minus (c) interest income.
4
<PAGE>
"Consolidated Net Income" means, for any period, for the Borrower and its
Consolidated Subsidiaries on a consolidated basis, the net income (or loss) of
the Borrower and its Subsidiaries for such period determined in accordance with
GAAP.
"Consolidated Net Worth" means, as of any date of determination,
Shareholders' Equity as of such date, excluding Redeemable Preferred Stock.
"Consolidated Subsidiary" means, at any date, any Subsidiary the accounts
of which, in accordance with GAAP, would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"Consolidated Total Capitalization" means, at any time, the sum of (a)
Consolidated Funded Indebtedness and (b) Consolidated Net Worth.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Revolving Borrowing,
(b) a borrowing of a Swing Line Loan, and (c) an L/C Credit Extension.
"Debt Rating" has the meaning set forth in the definition of "Pricing
Grid."
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that to the extent it has not been cured or
waived, and which with the giving of notice, the passage of time, or both, would
be an Event of Default.
"Default Rate" means an interest rate equal to (a) in the case of Base Rate
Loans, the Base Rate plus 2% per annum and (b) in the case of Eurodollar Rate
Loans, an interest rate equal to the interest rate (including the Applicable
Margin) otherwise applicable to such Eurodollar Rate Loan plus 2% per annum, in
each case subject to Section 10.10.
"Dollar" and "$" means lawful money of the United States of America.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
regulations issued pursuant thereto.
5
<PAGE>
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate (other than
pursuant to Section 4041(b) of ERISA), the treatment of a Plan amendment as a
termination under Sections 4041(c) or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon the Borrower or any
ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (or
any successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not appear
on such page or service or such page or service shall cease to be available, the
rate per annum equal to the offered rate on such other page or other service
that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest (rounded upward to the next 1/100th of 1%) at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Eurodollar Rate Revolving Loan.
6
<PAGE>
"Eurodollar Rate Revolving Loan" means a Revolving Loan that bears interest
at a rate based on the Eurodollar Rate.
"Event of Default" means any of the events or circumstances specified in
Article VIII.
"Exchange Act" means the Securities and Exchange Act of 1934.
"Existing Credit Agreement" means that certain Amended and Restated Credit
Agreement dated as of August 7, 1996 among the Borrower, BJ Services Company,
U.S.A., BJ Service International, Inc., BJ Services Company Middle East, Nowsco
Well Service Ltd. and the other Subsidiary Borrowers from time to time parties
thereto, the several financial institutions from time to time parties thereto,
Bank of America, National Association, as Letter of Credit Issuing Bank and
Swing Loan Bank, Bank of America, National Association, as U.S. Agent, Bank of
America Canada, as Canadian Agent, The Chase Manhattan Bank, as Senior Co-Agent,
and Bank of Montreal, Royal Bank of Canada, Toronto Dominion (Texas), Inc.,
Credit Lyonnais New York Branch and Wells Fargo Bank (Texas), National
Association, as co-agents for such lenders, as amended.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
that day by each of three leading brokers of Federal funds transactions in New
York City selected by the Administrative Agent.
"Fee Letter" means, that certain letter agreement dated April 2, 2001 among
the Borrower, the Arranger and the Administrative Agent.
"Financial Letter of Credit" means a standby letter of credit to support
payment obligations of the Borrower or any Subsidiary of the Borrower.
"Foreign Lender" has the meaning specified in Section 10.15.
"Foreign Subsidiary" means, as of any date of determination, a Subsidiary
which is incorporated or organized under the laws of any jurisdiction other than
the District of Columbia or the United States of America or any state thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States of America.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board consistently applied.
7
<PAGE>
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other non-contingent obligation
payable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the obligee of such Indebtedness or
other obligation of the payment of such Indebtedness or other obligation, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other non-contingent obligation of any other
Person, whether or not such Indebtedness is assumed by such Person. The amount
of any Guaranty Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guaranty Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guarantying Person in good faith.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
(b) all non-contingent reimbursement or payment obligations of such Person
arising under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course
of business);
(d) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse;
(e) capital leases; and
(f) all Guaranty Obligations of such Person in respect of any of the
foregoing.
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<PAGE>
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer to the extent of such Person's
liability for such Indebtedness, unless such Indebtedness is expressly made
non-recourse to such Person (subject only to exceptions acceptable to the
Majority Lenders). The capitalized amount of any capital lease that would appear
on the balance sheet of such Person prepared as of a given date in accordance
with GAAP shall be deemed to be the amount of Indebtedness in respect thereof as
of such date. "Indebtedness" shall not include obligations for borrowed money
owed to the Borrower or any Consolidated Subsidiary by any Consolidated
Subsidiary or to any Consolidated Subsidiary by the Borrower.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Independent Auditor" has the meaning specified in Section 6.01(a).
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal
quarters ending on or immediately preceding such date to (b) Consolidated
Interest Charges for such period.
"Interest Payment Date" means, (a) as to any Eurodollar Rate Loan, the
last day of each Interest Period applicable thereto; provided, however, that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date and each date such Base Rate
Loan is converted into a Eurodollar Rate Loan.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Revolving Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"IP Rights" has the meaning set forth in Section 5.15.
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"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, and codes,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, authorizations and permits
of, and written agreements with, any Governmental Authority.
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced or deemed refinanced as a Revolving Borrowing as contemplated by
2.03(c)(i).
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, and any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as of any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrower and the Administrative Agent in
writing.
"Letter of Credit" means any Performance Letter of Credit or Financial
Letter of Credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a letter of credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date (or, if such day is not a Business Day, the Business Day
which immediately precedes such day).
"Letter of Credit Sublimit" means an amount equal to the lesser of (a) the
Aggregate Commitments and (b) $50,000,000. The Letter of Credit Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever in respect of any property, whether
10
<PAGE>
tangible or intangible (including any conditional sale or other title retention
agreement, any financing lease having substantially the same effect as a
financing as any of the foregoing, and the filing of any financing statement
naming the owner of the property to which such financing lease relates as
"debtor" under the Uniform Commercial Code or comparable Laws of any
jurisdiction), including the interest of a purchaser of accounts receivable, but
not in any event including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, each
Request for Credit Extension and each Compliance Certificate.
"Majority Lenders" means at any time Lenders whose Voting Percentages as of
the date of determination aggregate more than 50%.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole; (b) a material impairment of the ability of the Borrower to perform
its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a party.
"Material Subsidiary" means any Subsidiary which has assets having a book
value equal to or greater than 10% of the Consolidated Net Worth as of any time
of determination or having during any fiscal quarter consolidated revenues equal
to or greater than 10% of the consolidated revenues of the Company and its
Subsidiaries during such quarter.
"Maturity Date" means (a) the third anniversary of the Closing Date, or (b)
such earlier date, if any, upon which the Aggregate Commitments are terminated
in accordance with the terms hereof.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Multiemployer Plan" means a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes
or is obligated to make contributions, or during the preceding three calendar
years, has made or been obligated to make contributions.
"Notes" means, collectively, the Revolving Loan Notes and the Swing Line
Note.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, the Borrower arising under any Loan Document, whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising and including interest that accrues after the commencement
by or against the Borrower of any proceeding under any Debtor Relief Laws naming
the Borrower as the debtor in such proceeding.
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<PAGE>
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws of such corporation; (b)
with respect to any limited liability company, the articles of formation and
operating agreement of such limited liability company; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation of such
entity and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation with the secretary of state or other
department in the state of its formation, in each case as amended from time to
time.
"Outstanding Amount" means (i) with respect to Revolving Loans and Swing
Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Revolving Loans
and Swing Line Loans, as the case may be, occurring on such date; (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit (whether by payment of cash or resulting
from a Revolving Borrowing as contemplated in Section 2.03(c)) or any reductions
taking effect on such date in the maximum amount available for drawing under
Letters of Credit; and (iii) with respect to the aggregate of all outstanding
amounts hereunder, the sum of the amounts described in the foregoing clauses (i)
and (ii).
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Performance Letter of Credit" means a standby letter of credit to support
performance obligations of the Borrower or any Subsidiary of the Borrower.
"Permitted Business" means (a) those lines of business conducted by the
Borrower or by its Subsidiaries on the date hereof (the "Existing Business"),
(b) the technologies now or hereafter related or complementary to the Existing
Business, (c) those lines of business (the "Complementary Business") which now
or hereafter are complementary to the Exiting Business and (d) those
technologies which are now or hereafter related or complementary to the
Complementary Business.
"Person" means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
Governmental Authority.
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"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate other
than a Multiemployer Plan.
"Pricing Grid" means the following chart:
PRICING GRID
<TABLE>
<CAPTION>
Letter of Credit
Applicable Participation Fee
Margin
Pricing Debt Ratings Commitment (Eurodollar Financial Performance
Level S&P/Moody's Fee Rate Loans) L/C's L/C's
- ------------ -------------------- -------------- ---------------- ---------------------------
<S> <C> <C> <C> <C> <C>
1 A-/A3 or better 0.115% 0.500% .500% .330%
2 BBB+/Baa1 0.135% 0.625% .625% .420%
3 BBB/Baa2 0.150% 0.875% .875% .600%
4 BBB-/Baa3 0.225% 1.000% 1.000% .670%
5 Less than BBB-/Baa3 0.250% 1.250% 1.250% .830%
</TABLE>
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Moody's (the "Debt Ratings") of the
Borrower's non-credit-enhanced, senior unsecured long-term debt;
provided that if a Debt Rating is issued by each of the foregoing
rating agencies, then the higher of such Debt Ratings shall apply (with
the Debt Rating for Pricing Level 1 being the highest and with the Debt
Rating for Pricing Level 5 being the lowest), unless there is a split
in Debt Ratings of more than one Pricing Level, in which case the
Pricing Level for the Debt Rating that is one level higher than the
lower of such Debt Ratings shall apply.
Initially, the Debt Rating shall be as specified in the certificate
delivered pursuant to Section 4.01(a)(vi). Thereafter, each change in
the Debt Rating shall be effective, in the case of an upgrade, at all
times during the period commencing on the date of delivery by the
Borrower to the Administrative Agent of notice thereof pursuant to
Section 6.03(d) and ending on the date immediately preceding the
effective date of the next such change and, in the case of a downgrade,
during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date
of the next such change.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as in accordance with Sections 2.14 and 10.07 hereof.
"Redeemable Preferred Stock" means preferred stock that has, or is
convertible into any security that has, mandatory redemption or repurchase
requirements (other than those exercisable
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<PAGE>
solely at the option of the issuer of said stock and other than those which may
be redeemed or repurchased solely by the issuance of common stock) on or prior
to the Maturity Date.
"Refinancing" means any renewal, extension, renewal and extension,
rearrangement, replacement or substitution, modification or other amendment to
or of any existing Indebtedness; provided that the principal amount of the
Indebtedness after such Refinancing is not greater than the sum of (a) the
principal amount of such Indebtedness plus (b) accrued interest thereon
outstanding immediately prior to such Refinancing.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30-day notice period requirement under
ERISA has been waived in regulations issued by the PBGC.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Revolving Loans, a Revolving Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Responsible Officer" means the chief executive officer, the president, the
chief financial officer or the treasurer of the Borrower.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and having the same Interest Period made by
each of the Lenders pursuant to Section 2.01.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Loan Note" means a promissory note made by the Borrower in favor
of a Lender evidencing Revolving Loans made by such Lender, substantially in the
form of Exhibit D-1.
"Revolving Loan Notice" means a notice of (a) a Revolving Borrowing, (b) a
conversion of Revolving Loans from one Type to the other, or (c) a continuation
of Revolving Loans as the same Type, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
"7% Indenture" means the Indenture dated as of February 1, 1996 by and
among the Borrower, BJ-USA, BJ-International, and BJ-Middle East, and Bank of
Montreal Trust Company, as trustee, in respect of the 7% Notes.
"7% Notes" means the Borrower's 7% Notes due 2006 in the original aggregate
principal amount of $125,000,000.
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<PAGE>
"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Consolidated Subsidiaries on a consolidated basis,
shareholders' equity as of that date determined in accordance with GAAP.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant to
Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider of
Swing Line Loans and any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Note" means a promissory note made by the Borrower in favor of
the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit D-2.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing pursuant
to Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit C.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$20,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings which arise from or are assessed in
connection with any payment made hereunder or under any Note or the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents, and all liabilities with respect thereto, excluding,
in the case of each Lender and each Agent, such taxes (including income taxes or
franchise taxes) as are imposed on or measured by each Lender's net income,
assets or capital by the jurisdiction (or any political subdivision thereof)
under the laws of which such Lender or such Agent, as the case may be, is
organized or maintains a lending office.
"364-Day Credit Agreement" means the 364-Day Credit Agreement of even date
herewith among the Borrower, the financial institutions from time to time party
thereto, Bank of America as Administrative Agent. Royal Bank of Canada and The
Bank of New York, as Co-
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<PAGE>
Syndication Agents, The Royal Bank of Scotland plc and Bank One, N.A., as
Co-Documentation Agents, in respect of revolving loans of up to $200,000,000,
initially, as such amount may be increased or reduced after the Closing Date
pursuant to the terms of such agreement.
"Type" means, with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
"Utilization Fee" has the meaning specified in Section 2.09(b).
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Aggregate Commitments, the percentage (carried
out to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount
applicable to such Lender then comprises of (ii) the Outstanding Amount
applicable to all Lenders; provided, however, that if any Lender has failed to
fund any portion of the Revolving Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder, such
Lender's Voting Percentage shall be deemed to be zero, and the respective Pro
Rata Shares and Voting Percentages of the other Lenders shall be recomputed for
purposes of this definition and the definition of "Majority Lenders" without
regard to such Lender's Commitment or the Outstanding Amount of its Revolving
Loans, L/C Advances and funded participations in Swing Line Loans, as the case
may be.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein", "hereunder", "hereof" and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings.
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<PAGE>
(c) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including;"
the words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied on a
consistent basis and in a manner consistent with that used in preparing the
Audited Financial Statements, except to the extent, if any, otherwise
specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Majority Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (which amendment shall be subject to the approval of the Borrower and the
Majority Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP as in effect
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
ARTICLE II.
The Commitments and Credit Extensions
2.01 Revolving Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make loans (each such loan, a "Revolving Loan")
to the Borrower from time to time on any Business Day during the period from the
Closing Date to the Maturity Date, in an aggregate amount not to exceed at any
time outstanding, the amount of such Lender's Commitment; provided, however,
that after giving effect to any Revolving Borrowing, (i) the Outstanding Amount
shall not exceed the Aggregate Commitments, and (ii) the Outstanding Amount
applicable to any Lender shall not exceed such Lender's Commitment. Within the
limits of each Lender's Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Revolving Loans.
(a) Each Revolving Borrowing, each conversion of Revolving Loans from one
Type to the other, and each continuation of Revolving Loans as the same Type
shall be made upon the Borrower's irrevocable notice to the Administrative
Agent, which may be given by telephone.
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<PAGE>
Each such notice must be received by the Administrative Agent not later than
11:00 a.m., New York time, (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurodollar Rate Revolving
Loans or of any conversion of Eurodollar Rate Revolving Loans to Base Rate
Revolving Loans, and (ii) on the requested date of any Borrowing of Base Rate
Revolving Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Revolving Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Revolving Borrowing of, conversion to or continuation of Eurodollar Rate
Revolving Loans shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Each Revolving Borrowing of or conversion to
Base Rate Revolving Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Revolving Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Revolving Borrowing, a conversion of Revolving Loans from one Type to the other,
and/or a continuation of Revolving Loans as the same Type, (ii) the requested
date of the Borrowing, conversion and/or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Revolving Loans to be
borrowed, converted and/or continued, (iv) the Type of Revolving Loans to be
borrowed or to which existing Revolving Loans are to be converted, and (v) in
the case of Eurodollar Rate Revolving Loans, the duration of the Interest Period
with respect thereto. If the Borrower fails to specify a Type of Revolving Loan
in a Revolving Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving Loans
shall be made or continued as, or converted to, Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar
Rate Revolving Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Revolving Loans in any such Revolving Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(b) Following receipt of a Revolving Loan Notice, the Administrative Agent
shall promptly notify each Lender of its Pro Rata Share of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. Each Lender shall make the amount of its Revolving Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m., New York time, on the
Business Day specified in the applicable Revolving Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to the Administrative Agent by the Borrower; provided,
however, that if, on the date of the Revolving Borrowing, there are Swing Line
Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall
be applied, first, to the payment in full of any such L/C Borrowings, second, to
the payment in full of any such Swing Line Loans, and third, to the Borrower as
provided above.
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(c) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Revolving Loan
upon determination of such interest rate. The determination of the Eurodollar
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify the Borrower and the Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(d) After giving effect to all Revolving Borrowings, all conversions of
Revolving Loans from one Type to the other, and all continuations of Revolving
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Revolving Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Performance Letters of Credit and Financial
Letters of Credit for the account of the Borrower and to amend or renew
Letters of Credit previously issued by it, in accordance with subsection
(b) below, and (2) to honor drafts under such Letters of Credit; and (B)
the Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of
Credit, and no Lender shall be obligated to participate in, any Letter of
Credit if as of the date of such L/C Credit Extension, (x) the aggregate
Outstanding Amount would exceed the Aggregate Commitments, (y) the
Outstanding Amount applicable to any Lender would exceed such Lender's
Commitment, or (z) the Outstanding Amount of the L/C Obligations would
exceed the Letter of Credit Sublimit. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower's ability to
obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the period from the Closing Date until the Letter of
Credit Expiration Date, from time to time obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon
and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder and for which the Borrower does not agree to compensate the
L/C Issuer in a manner reasonably
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satisfactory to the L/C Issuer) not in effect on the Closing
Date, or shall impose upon the L/C Issuer any unreimbursed
loss, cost or expense which was not applicable on the Closing
Date and which, in either event, the L/C Issuer in good faith
deems material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months
after the date of issuance or last renewal, unless the Majority
Lenders have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount less than
$500,000 or is to be denominated in a currency other than
Dollars.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit as may be requested by the Borrower if (A) the L/C Issuer would
have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such L/C Application must be received by the L/C Issuer and
the Administrative Agent not later than 11:00 a.m., New York time, at least
two Business Days (or such later date and time as the L/C Issuer may agree
in a particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a
request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day);
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(C) the nature of the proposed amendment; and (D) such other matters as the
L/C Issuer may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in it sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to refuse to make any such
renewal once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the "Nonrenewal Notice Date") in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower
shall not be required to make a specific request to the L/C Issuer for any
such renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but shall have no right to
require) the L/C Issuer to permit the renewal of such Letter of Credit at
any time to a date not later than the Letter of Credit Expiration Date;
provided, however, that the L/C Issuer shall not permit any such renewal if
(A) the L/C Issuer would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof, or (B) it has
received notice (which may be by telephone or in writing) on or before the
Business Day immediately preceding the Nonrenewal Notice Date (1) from the
Administrative Agent that the Majority Lenders have elected not to permit
such renewal or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section
4.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
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(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. In the case of
Letters of Credit under which drawings are payable one or more Business
Days after the drawing is made, the L/C Issuer will use reasonable efforts
to give such notice to the Borrower at least one Business Day prior to the
Honor Date. Not later than 11:00 a.m., New York time, on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If
the Borrower fails so to reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date,
the amount of the unreimbursed drawing (the "Unreimbursed Amount"), and
such Lender's Pro Rata Share thereof. In such event, the Borrower shall be
deemed to have requested a Revolving Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Revolving Loan Notice).
Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed
in writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office in an amount equal to its Pro Rata Share of
the Unreimbursed Amount not later than 1:00 p.m., New York time, on the
Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender
that so makes funds available shall be deemed to have made a Revolving Base
Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Revolving Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate
applicable to Base Rate Revolving Loans. In such event, each Lender's
payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount
drawn under any Letter
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of Credit, interest in respect of such Lender's Pro Rata Share of such
amount shall be solely for the account of the L/C Issuer.
(v) Each Lender's obligation to make Revolving Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default or Event of
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing. Any such reimbursement shall not relieve
or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section 2.03(c) by the
time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled to
recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately
available to the L/C Issuer at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the L/C Issuer submitted
to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(d) Repayment of Participations. (i) At any time after the L/C Issuer has
made a payment under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account of the L/C Issuer
any payment related to such Letter of Credit (whether directly from the Borrower
or otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), or any payment of interest thereon, the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof in the same
funds as those received by the Administrative Agent; and (ii) if any payment
received by the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(i) is required to be returned, each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share
thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit, and to repay each L/C
Borrowing and each drawing under a Letter of Credit that is refinanced by a
Borrowing of Revolving Loans, shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following: (i) any lack of validity or
enforceability of such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto; (ii) the existence of any claim, counterclaim,
set-off, defense or other right that
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the Borrower may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction; (iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the
terms of such Letter of Credit; or any payment made by the L/C Issuer under such
Letter of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of, or successor to, any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or (v) any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense available to,
or a discharge of, the Borrower; provided that nothing in the foregoing or
elsewhere shall limit the L/C Issuer's obligation to examine the sight drafts,
certificate(s) and other documents presented by the beneficiary of a Letter of
Credit in order to determine that the same comply with the requirements of the
relevant Letter of Credit and to refuse payment thereon (A) if such sight
drafts, certificate(s) and other documents do not appear regular on their face
or (B) if the requirements for payment set forth in the relevant Letter of
Credit are not satisfied. The Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with the Borrower's instructions or other
irregularity, the Borrower will promptly notify the L/C Issuer.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document provided that such sight
drafts, certificates and other documents required by any Letter of Credit appear
regular on their face, except to the extent of the L/C Issuer's gross negligence
or willful misconduct. No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the L/C Issuer shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Majority Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that the foregoing assumption is not
intended to, and shall not, preclude the Borrower's pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e).
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Notwithstanding anything contained in the foregoing provisions of this
Section 2.03(f) or elsewhere to the contrary, Borrower may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent,
but only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused by the
L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) complying with the terms and
conditions of such Letter of Credit or the L/C Issuer's payment under any Letter
of Credit after presentation to it by the beneficiary of a sight draft,
certificate(s) or other documents which do not comply with the terms and
conditions of a Letter of Credit or which do not appear regular on their face.
In furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, and the L/C Issuer shall not
be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. If (i) the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, and the Administrative Agent shall so request in writing, or (ii)
as of the Letter of Credit Expiration Date, any Letter of Credit shall for any
reason remain outstanding and partially or wholly undrawn, then the Borrower
shall immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount). The Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a Lien on all such cash and deposit account balances comprising such
cash collateral for the then Outstanding Amount of the L/C Obligations. Cash
collateral (other than letters of credit) shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the L/C Issuer and the Borrower, when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), (i) the rules of
the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce (the "ICC")
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro)) shall apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee (the "Letter of Credit Participation Fee") equal to, as
applicable, (i)(a) in the case of Financial Letters of Credit the percent
specified under "Financial L/C's" or (b) in the case of Performance Letters of
Credit, the percent specified under "Performance L/C's", in each case in the
Pricing Grid under the column entitled "Letter of Credit Participation Fee" as
applicable from time to time based on the applicable Pricing Level (determined
based on the Borrower's Debt Rating from time to time) times (ii) the actual
daily maximum amount available to be drawn under each such Letter
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of Credit. The Letter of Credit Participation Fee shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, and on the Letter of Credit Expiration Date. If there is
any change in the Debt Rating during any quarter, the Letter of Credit
Participation Fee shall be computed using the applicable percent set forth in
the Pricing Grid under the column entitled "Letter of Credit Participation Fee"
separately for each period during such quarter that each Pricing Level was in
effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee in an amount equal to 1/8 of 1% per annum on the daily maximum
amount available to be drawn under all Letters of Credit from time to time
outstanding, due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such date to
occur after the issuance of a Letter of Credit, and on the Letter of Credit
Expiration Date. In addition, the Borrower shall pay directly to the L/C Issuer
for its own account the reasonable and customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in effect.
Such fees and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees to make loans (each such loan, a "Swing Line Loan")
to the Borrower from time to time on any Business Day during the period from the
Closing Date to the Maturity Date in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Outstanding Amount of
Revolving Loans of the Swing Line Lender in its capacity as a Lender of
Revolving Loans, may exceed the amount of such Lender's Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the aggregate
Outstanding Amount shall not exceed the Aggregate Commitments, and (ii) the
Outstanding Amount applicable to any Lender shall not exceed such Lender's
Commitment. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall
be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such Swing Line Loan
in an amount equal to the product of such Lender's Pro Rata Share times the
amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Borrower's irrevocable notice to the Swing Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m., New
York time, on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $1,000,000 and an integral multiple of
$1,000,000, and (ii) the requested borrowing date, which shall be a Business
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Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m., New York time, on the date of the proposed Swing
Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the
terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m., New York time, on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender, at any time in its sole and absolute
discretion, may request, on behalf of the Borrower (which hereby
irrevocably requests the Swing Line Lender to so request on its behalf),
that each Lender make a Revolving Base Rate Loan in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Loans then outstanding.
Such request shall be made in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the available portion
of the Aggregate Commitments and the conditions set forth in Section 4.02.
The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Revolving Loan Notice promptly after delivering such notice to
the Administrative Agent. Each Lender shall make an amount equal to its Pro
Rata Share of the amount specified in any such Revolving Loan Notice
available to the Administrative Agent in immediately available funds for
the account of the Swing Line Lender at the Administrative Agent's Office
not later than 1:00 p.m., New York time, on the day specified in such
Revolving Loan Notice, whereupon, subject to Section 2.04(c)(ii), each
Lender that so makes funds available shall be deemed to have made a Base
Rate Revolving Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Revolving Borrowing cannot be requested in
accordance with Section 2.04(c)(i) or any Swing Line Loan cannot be
refinanced by such a Revolving Borrowing, the Revolving Loan Notice
submitted by the Swing Line Lender shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in
the relevant Swing Line Loan and each Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such
participation.
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(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default or Event of Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing. Any such purchase of participations shall not relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (including
interest payments for interest accrued during the period of time such
Lender's participation was outstanding and funded) in the same funds as
those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender, each Lender shall pay to the Swing Line Lender its
Pro Rata Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned,
at a rate per annum equal to the Federal Funds Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Revolving Base Rate Loan or participation pursuant
to this Section 2.04 to refinance such Lender's Pro Rata Share of any Swing Line
Loan, interest in respect of such Pro Rata Share shall be solely for the account
of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans directly
to the Swing Line Lender.
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2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
and from time to time, voluntarily prepay Revolving Loans, in whole or in part,
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m., New York time, (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Revolving Loans
and (B) on the date of prepayment of Base Rate Revolving Loans; (ii) any
prepayment of Eurodollar Rate Revolving Loans shall be in a principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Revolving Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Revolving Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of such Lender's Pro Rata
Share of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment, and the payment amount specified in such notice
shall be due and payable on, the date specified therein. Any prepayment of a
Eurodollar Rate Revolving Loan shall be accompanied by all accrued, unpaid
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Revolving Loans of
the Lenders in accordance with their respective Pro Rata Shares.
(b) [Intentionally Blank].
(c) The Borrower may, upon notice to the Swing Line Lender (with a copy to
the Administrative Agent), at any time and from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m., New York time, on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000.
Each such notice shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
(d) If for any reason the Outstanding Amount at any time exceeds the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal
to such excess.
2.06 Reduction or Termination of Commitments. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or permanently
reduce the Aggregate Commitments to an amount not less than the then Outstanding
Amount; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m., New York time, five Business
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate minimum amount of $5,000,000 or any whole
multiple of $1,000,000 in excess thereof. The Administrative Agent shall
promptly notify the Lenders of any such notice of reduction or termination of
the Aggregate Commitments. Once reduced in accordance with this Section, the
Aggregate Commitments may not be increased. Any reduction of the Aggregate
Commitments shall be applied to the Commitment of each Lender according to its
Pro Rata Share. All commitment fees accrued and unpaid as of the effective date
of any
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termination of the Aggregate Commitments shall be paid on the effective date of
such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on or before the Maturity Date
the aggregate principal amount of Revolving Loans outstanding on such date.
(b) The Borrower shall repay each Swing Line Loan on or before the earlier
to occur of (i) the date five Business Days after such Loan is made and (ii) the
Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Revolving Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Margin; (ii) each Base Rate
Revolving Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate;
and (iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate.
(b) While any Default or Event of Default exists or after acceleration, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate, subject to Section 10.10. Accrued and unpaid interest on past due
amounts (including interest on past-due interest, subject to Section 10.10)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees.
In addition to certain fees described in subsections (i) and (j) of Section
2.03:
(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a commitment
fee (the "Commitment Fee") in an amount equal to (A) the percent set forth in
the Pricing Grid under the column entitled "Commitment Fee" as applicable from
time to time based on the applicable Pricing Level (determined based on the
Borrower's Debt Rating from time to time) times (B) the actual daily amount by
which the Aggregate Commitments exceed the aggregate Outstanding Amount on each
such day. The Commitment Fee shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the Maturity
Date. The Commitment Fee shall be calculated quarterly in arrears, and if there
is any change in the Debt Rating during any
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quarter, the Commitment Fee shall be computed using the applicable percent
set forth in the Pricing Grid under the column entitled "Commitment Fee"
separately for each period during such quarter that each Pricing Level was in
effect. The Commitment Fee shall accrue at all times from and after the Closing
Date until the Maturity Date, including at any time during which one or more of
the conditions in Article IV is not met.
(b) Utilization Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, for each day
during the period commencing on the Closing Date and ending on the Maturity Date
that the Combined Outstanding Amount exceeds 33% of the total amount of the
Combined Aggregate Commitments, a utilization fee (the "Utilization Fee") in an
amount equal to the sum of (1) the product of (A) .125% times (B) the
Outstanding Amount less the Outstanding Amount of Performance Letters of Credit
on each such day plus (2) the product of (A) .085% times (B) the Outstanding
Amount of Performance Letters of Credit on each such day. The Utilization Fee
shall be due and payable quarterly in arrears on the same dates as the
Commitment Fee.
(c) Other Fees. The Borrower shall pay to the Arranger and/or the
Administrative Agent those fees described in the Fee Letter as and when the same
are due and payable.
2.10 Computation of Interest and Fees. Interest on Base Rate Loans shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed. Subject to Section 10.10, computation of all
other types of interest and all fees shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, which results in a higher
yield to the payee thereof than a method based on a year of 365 or 366 days.
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall bear interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Loans or L/C
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of such Lender shall
control. Upon the request of any Lender made through the Administrative Agent,
such Lender's Loans may be evidenced by a Revolving Loan Note and/or a Swing
Line Note, as applicable, in addition to such accounts or records. Each Lender
may attach schedules to its Note(s) and endorse thereon the date, Type (if
applicable), amount and maturity of the applicable Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with their
respective usual practice
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accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control, absent manifest
error.
2.12 Payments Generally.
(a) All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the Administrative Agent's Office in
Dollars and in immediately available funds not later than 12:00 noon, New York
time, on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender's Lending Office. All payments received by the Administrative Agent
after 12:00 noon, New York time, shall be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of "Interest Period," if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward costs and expenses (including Attorney Costs and amounts payable under
Article III) incurred by the Administrative Agent and each Lender, (ii) second,
toward repayment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of L/C Borrowings
and then, principal then due hereunder or pursuant hereto, ratably among the
parties entitled thereto in accordance with the amounts of L/C Borrowings and
principal, as the case may be, then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative Agent
prior to the date any payment is required to be made by it to the Administrative
Agent hereunder, that the Borrower or such Lender, as the case may be, will not
make such payment, the Administrative Agent may assume that the Borrower or such
Lender, as the case may be, has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto. If and to the extent that such payment was not
in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall forthwith on
demand repay to the Administrative Agent the portion of such assumed payment
that was made available to such Lender in immediately available funds, together
with interest thereon in respect of each day from and including the date such
amount was made available by the Administrative Agent to such Lender to the date
such amount is repaid to the Administrative Agent in immediately available
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funds, at the Federal Funds Rate from time to time in effect; and (ii) if any
Lender failed to make such payment, such Lender shall forthwith on demand pay to
the Administrative Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was made
available by the Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a rate per
annum equal to the Federal Funds Rate from time to time in effect. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Revolving Loan included in the applicable Borrowing. If
such Lender does not pay such amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent or the
Borrower may have against any Lender as a result of any default by such Lender
hereunder. A notice of the Administrative Agent to any Lender with respect to
any amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Revolving Loans and to
fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Revolving Loan or to fund any
such participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its
Revolving Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner; provided, however, that the
foregoing shall not affect the obligation of any Lender to make, continue and
convert Loans in accordance with the terms and provisions hereof.
2.13 Sharing of Payments. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Revolving Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Revolving Loans made by them and/or such subparticipations
in the participations in L/C Obligations or Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Revolving Loans or such participations, as
the case may be, pro rata with each of them; provided, however, that if all
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or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded, and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.09) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation. The Administrative Agent will keep records (which shall
be conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
2.14 Increase in Commitments.
(a) Provided there exists no Default or Event of Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Borrower
may from time to time, request an increase in the Aggregate Commitments provided
that the cumulative increase in the Combined Aggregate Commitments since the
Closing Date shall not exceed $150,000,000. At the time of sending such notice,
the Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice to
the Lenders). Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether
by an amount equal to, greater than, or less than its Pro Rata Share of such
requested increase. Any Lender not responding within such time period shall be
deemed to have declined to increase its Commitment. The Administrative Agent
shall notify the Borrower and each Lender of the Lenders' responses to each
request made hereunder. To achieve the full amount of a requested increase, the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
(b) If the Aggregate Commitments are increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the effective
date of each such increase (in each case, the "Increase Effective Date") and the
final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase and
the Increase Effective Date. As a condition precedent to such increase, the
Borrower shall deliver to the Administrative Agent a certificate of the Borrower
dated as of the Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer of the Borrower (i) certifying and attaching the
resolutions adopted by the Borrower approving or consenting to such increase,
and, (ii) including a Compliance Certificate demonstrating pro forma compliance
with Section 7.08 after giving effect to such increase and (iii) certifying
that,
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before and after giving effect to such increase, the representations and
warranties contained in Article V are true and correct on and as of the Increase
Effective Date and no Default or Event of Default exists as of the Increase
Effective Date. The Borrower shall deliver new or amended Revolving Loan Notes
reflecting the increased Commitment of any Lender holding or requesting a Note.
The Administrative Agent shall distribute an amended Schedule 2.01 (which shall
be deemed incorporated into this Agreement), to reflect any changes therein
resulting from such increase. The Borrower shall prepay any Revolving Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Revolving Loans ratable with any revised Pro Rata Shares arising
from any nonratable increase in the Commitments under this Section.
(c) This Section shall supersede any provisions in Section 10.01 to the
contrary.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all Taxes. If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), the Administrative Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof or other evidence of payment reasonably satisfactory
to the Administrative Agent.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies is
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
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(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.
(e) In the event the Administrative Agent or any Lender is required to pay
Taxes or Other Taxes for which the Administrative Agent or such Lender seeks
indemnity hereunder, the Agent or such Lender, as applicable, shall make written
demand to the Borrower, together with evidence in reasonable detail to
substantiate the same, no later than 180 days after paying such Taxes or Other
Taxes, and payment shall be made by the Borrower to the Lender or the
Administrative Agent, as the case may be, promptly after receipt of such written
demand.
(f) Notwithstanding anything contained herein or elsewhere to the contrary,
the foregoing subsections of this Section 3.01 shall in no event be applicable
to Taxes or Other Taxes arising or imposed as a result of any assignment to a
Person who is not an Eligible Assignee.
(g) If the Borrower is required to pay additional amounts to any Lender or
the Administrative Agent pursuant to this Section 3.01, then, upon the written
request of the Borrower, the Administrative Agent or such Lender, as the case
may be, shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payments by the Borrower which may thereafter
accrue, if such change in the judgment of such Lender or Administrative Agent,
as the case may be, is not otherwise disadvantageous to such Lender or
Administrative Agent, as the case may be.
(h) If the Borrower at any time pays any amount under this Section 3.01 to
the Administrative Agent or any Lender, and such payee receives a refund of or
credit for any part of any Taxes or Other Taxes with respect to which such
amount was paid by the Borrower, the Administrative Agent or such Lender, as the
case may be, shall pay to the Borrower the amount of such refund or credit
within 90 days following the receipt of such refund or credit by such payee,
together with a calculation in reasonable detail of such refund or credit.
3.02 Illegality. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Revolving Loans to Eurodollar Rate
Revolving Loans shall be suspended until such Lender notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist, which notification such Lender agrees to provide upon such
circumstances no longer existing. Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate
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Loans, either on the last day of the Interest Period thereof, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower
shall also pay accrued interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates. If the Administrative Agent determines
in connection with any request for a Eurodollar Rate Loan or a conversion to or
continuation thereof that (a) adequate and reasonable means do not exist for
determining the Eurodollar Rate for such Eurodollar Rate Loan, or (b) the
Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurodollar Rate Loan, the
Administrative Agent will promptly notify the Borrower and all Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent revokes such notice,
which notice Administrative Agent agrees to revoke upon (a) adequate and
reasonable means existing for determination of the Eurodollar Rate or (b) the
Eurodollar Rate's adequately and fairly reflecting the cost of funding
Eurodollar Rate Loans, as the case may be. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing, conversion or
continuation of Eurodollar Rate Revolving Loans or, failing that, will be deemed
to have converted such request into a request for a Revolving Borrowing of Base
Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurodollar Rate Loans.
(a) If any Lender reasonably determines that as a result of the
introduction, or any change in or in the interpretation, of any Law or
requirements for such Lender's compliance therewith occurring after the Closing
Date, there shall be any increase in the cost (exclusive of any and all taxes
payable on the basis of gross or net income) to such Lender of agreeing to make
or maintaining Eurodollar Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern)
and (ii) reserve requirements contemplated by Section 3.04(c)), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender reasonably determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or requirements for compliance by such Lender (or its Lending Office)
therewith occurring after the Closing Date, has the effect of reducing the rate
of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the
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Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall be
required to maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive absent manifest error), which shall be due and
payable on each date on which interest is payable on such Loan, provided the
Borrower shall have received at least 15 days' prior written notice (with a copy
to the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 15 days after receipt of such
notice.
In the event any Lender requests compensation under this Section 3.04, it
shall make such request to the Borrower within 120 days after such Lender has
actual knowledge of such increased costs or such increased capital.
3.05 Funding Losses. Upon written demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for, and hold such Lender harmless from, any loss, cost or expense
incurred by it as a result of: (a) any continuation, conversion, payment or
prepayment of any Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); (b) any failure by the
Borrower (for a reason other than the failure of such Lender to make a Loan) to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by the Borrower; or (c) any assignment of a
Eurodollar Rate Loan on a day other than the last day of the Interest Period
therefor as a result of a request by the Borrower pursuant to Section 10.16;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with the
foregoing. For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Revolving Loan made by it at the Eurodollar Rate for such Loan
by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Revolving Loan was in fact so funded. In no event, shall the
Borrower be liable for any consequential or indirect damages, including, without
limitation, loss of profits, pursuant to this Section 3.05.
3.06 Matters Applicable to all Requests for Compensation.
(a) All demands for compensation under Article III shall (i) be in writing,
(ii) shall set forth the additional amount or amounts to be paid to the
Administrative Agent or the Lender and be presented in reasonable detail and
(iii) shall be conclusive in the absence of manifest error. In determining such
amount, the Administrative Agent or such Lender may use any reasonable averaging
and attribution methods.
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(b) Upon any Lender's making a claim for compensation under Section 3.01 or
3.04, the Borrower may remove or replace such Lender in accordance with Section
10.16.
3.07 Survival. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations.
ARTICLE IV.
Conditions Precedent To Credit Extensions
4.01 Conditions of Initial Credit Extension. The obligation of each Lender
to make its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent with
respect to immaterial matters or items specified in clause (iv) or (v) below
with respect to which the Borrower has given assurances satisfactory to the
Administrative Agent that such items shall be delivered promptly following the
Closing Date), the Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, properly executed by a Responsible Officer of the Borrower
to the extent the Borrower's signature is required thereon, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;
(ii) Revolving Loan Notes executed by the Borrower in favor of each
Lender requesting such a Note, each in a principal amount equal to such
Lender's Commitment as of the Closing Date;
(iii) a Swing Line Note executed by the Borrower in favor of the Swing
Line Lender (if the Swing Line Lender requests such a Note) in the
principal amount of the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Borrower as the Administrative Agent may reasonably require to establish
the identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which the Borrower is a
party;
(v) such evidence as the Administrative Agent may reasonably require
to verify that the Borrower is duly organized or formed, validly existing,
in good standing and qualified to engage in business in each jurisdiction
in which it is required to be qualified to engage in business, including
certified copies of the Borrower's Organization Documents, certificates of
good standing and/or qualification to engage in business and tax clearance
certificates;
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(vi) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, (B) that there has been no event or circumstance since
the date of the Audited Financial Statements which has had a Material
Adverse Effect; and (C) the current Debt Ratings;
(vii) an opinion of Andrews & Kurth, L.L.P., counsel to the Borrower,
substantially in the form of Exhibit H-1;
(viii) an opinion of Margaret B. Shannon, General Counsel of the
Borrower, substantially in the form of Exhibit H-2;
(ix) evidence that the 364-Day Credit Agreement has been or
concurrently with the Closing Date is being executed by the parties
thereto;
(x) such other certificates or documents as the Administrative Agent,
the L/C Issuer, the Swing Line Lender or the Majority Lenders may
reasonably request;
(b) Any fees required to be paid on or before the Closing Date shall have
been paid; and
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all Attorney Costs of the Administrative Agent to the extent invoiced at least
three Business Days prior to the Closing Date.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension
(other than a Revolving Loan Notice requesting only a conversion of Revolving
Loans of one Type to the other Type and/or a continuation of Revolving Loans as
the same Type) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in Article
V shall be true and correct on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of such
earlier date;
(b) No Default or Event of Default has occurred and is continuing or would
result from such proposed Credit Extension; and
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements of Sections 2.02(a) in the case of Revolving
Loans, 2.03(b) in the case of Letters of Credit and 2.04(b) in the case of Swing
Line Loans.
Each Request for Credit Extension (other than a Revolving Loan Notice
requesting only a conversion of Revolving Loans to the other Type or a
continuation of Revolving Loans as the same Type) submitted by the Borrower
shall be deemed to be a representation and warranty that
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the conditions specified in Sections 4.02(a) and (b) have been satisfied on and
as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. The Borrower
and each of its Subsidiaries (a) is a corporation, partnership or limited
liability company duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the Loan
Documents to which it is a party, (c) is duly qualified and is licensed and in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws, except in each
case referred to in the foregoing clauses (b) and (c) or this clause (d), to the
extent that failure to do so would not reasonably be expected to have a Material
Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by the Borrower of each Loan Document to which it is a party and the
Borrowings hereunder, the issuance of Letters of Credit and the use of proceeds
of Borrowings, have been duly authorized by all necessary corporate action, and
do not and will not (a) contravene the terms of any of the Borrower's
Organization Documents; (b) conflict with or result in any breach or
contravention of, in any material respect, any document evidencing any material
Contractual Obligation to which the Borrower or any of its Subsidiaries is a
party or any material order, injunction, writ or decree of any Governmental
Authority to which the Borrower or its property is subject; (c) result in the
creation of any Lien under any such document except Liens permitted by Section
7.01 or (d) violate in any material respect any Law.
5.03 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Borrower of
this Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by the
Borrower. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with their respective
terms, except as enforceability may be limited by applicable Debtor Relief Laws
or by equitable principles.
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5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP, except as otherwise expressly noted therein; and (ii) fairly present the
financial condition of the Borrower and its Consolidated Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP, except as otherwise expressly noted therein.
(b) The unaudited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries dated March 31, 2001, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein and subject to ordinary year end audit adjustments and
the addition of footnotes; and (ii) fairly present the financial condition of
the Borrower and its Consolidated Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject to ordinary
year-end audit adjustments and the addition of footnotes.
(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance that has had a Material Adverse Effect.
5.06 Litigation. Except as set forth in Schedule 5.06, to the best
knowledge of the Borrower, there are no actions, suits, proceedings, claims or
disputes pending, threatened or contemplated, at law, in equity, in arbitration
or before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document or any of the
transactions contemplated hereby, or (b) in which there is a reasonable
probability of an adverse decision which would reasonably be expected to have a
Material Adverse Effect.
5.07 No Default. No Default or Event of Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.
5.08 Environmental Compliance. The Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof, the Borrower has reasonably concluded that, except as
disclosed in Schedule 5.08, such Environmental Laws and claims would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.09 Insurance. Except as disclosed in Schedule 5.09, the properties of the
Borrower and its Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles or such self-insured retention levels and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or its Subsidiaries operate.
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5.10 Taxes. The Borrower and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. To the knowledge of the Borrower and its
Subsidiaries, there is no proposed tax assessment against the Borrower or any
Subsidiary that, if made, would reasonably be expected to have a Material
Adverse Effect.
5.11 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws, except to the
extent that the failure to be in compliance would not reasonably be expected to
have a Material Adverse Effect. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being processed by (or
is still within the applicable remedial amendment period for filing with) the
IRS with respect thereto and, to the knowledge of the Borrower, nothing has
occurred which would prevent, or cause the loss of, such qualification. Except
as set forth in Schedule 5.11, the Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code other
than any failures that would not reasonably be expected to have a Material
Adverse Effect, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) To the knowledge of the Borrower, there are no pending or threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted, or would
reasonably be expected to result, in a Material Adverse Effect.
5.12 Subsidiaries. As of the Closing Date, the Borrower has no Subsidiaries
other than those disclosed in Schedule 5.12 and has no equity investments in any
other corporation or entity other than those disclosed in Schedule 5.12.
5.13 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The proceeds of the Loans are to be used only for the purposes set
forth in Section 6.10. The Borrower is not engaged principally in the business
of purchasing or carrying margin stock (within the meaning of Regulation U
issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
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5.14 Disclosure. No statement, information, report, representation, or
warranty made by the Borrower in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower pursuant to
any Loan Document, taken as a whole, contains any untrue statement of a material
fact or omits 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, in each case as of the date when made or delivered.
5.15 Intellectual Property; Licenses, Etc. The Borrower and its
Subsidiaries own, or possess the right to use, all of the material trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses,
without conflict in any material respect with the rights of any other Person. To
the best knowledge of the Borrower, no material slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any Subsidiary
infringes in any material respect upon any material rights held by any other
Person. Except as specifically disclosed in Schedule 5.15, no claim or
litigation regarding any of the foregoing is pending or, to the best knowledge
of the Borrower, threatened which claim or litigation would reasonably be
expected to have a Material Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.10) cause each
Subsidiary to, unless the Majority Lenders waive compliance in writing:
6.01 Financial Statements. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent
and the Majority Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, (i) a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year,
and the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing (the "Independent Auditor"), which
report and opinion shall be prepared in accordance with GAAP and shall not be
subject to any material qualifications; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower, an
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter all such statements to be certified by a Responsible Officer of
the Borrower as fairly presenting the financial condition, results of operations
and cash flows of the
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Borrower and its Consolidated Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the addition of footnotes.
6.02 Certificates; Other Information. Deliver to the Administrative Agent
and each Lender:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower setting forth in reasonable detail such
calculations needed to establish compliance with the financial covenants set
forth in Section 7.08;
(b) promptly after the same are available, copies of all financial
statements and other reports or communications sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and
registration statements (including Forms 10K, 10Q and 8K) which the Borrower may
file or be required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Exchange Act, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and
(c) promptly, such additional information regarding the business, financial
or corporate affairs of the Borrower or any Subsidiary as the Administrative
Agent, at the reasonable request of any Lender, may from time to time request in
form and detail reasonably satisfactory to the Administrative Agent and the
Majority Lenders.
6.03 Notices.
Promptly notify the Administrative Agent:
(a) of the occurrence of any Default or Event of Default, upon any
Responsible Officer becoming aware of same;
(b) of any matter that has resulted, or which would reasonably be expected
to result, in a Material Adverse Effect, including any of the following that has
resulted or which would reasonably be expected to result in a Material Adverse
Effect: (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary
and any Governmental Authority; or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event; and
(d) of any announcement by Moody's or S&P of (i) any change in a Debt
Rating or (ii) possible change in a Debt Rating.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each
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notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement or other Loan Document that have been breached.
6.04 Preservation of Existence, Etc. Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except in connection with any transaction
permitted by Sections 7.03 or 7.04 and preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which, in any of the foregoing cases, would reasonably be expected to have a
Material Adverse Effect.
6.05 Maintenance of Properties. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted, so that
its business may be properly conducted at all times, except where the
maintenance and preservation of such property, in the good faith business
judgment of the Borrower or the applicable Subsidiary, is no longer in the best
interests of the Borrower and its Subsidiaries, taken as a whole, and (b) use in
the operation and maintenance of such properties and equipment the standard of
care typical for the industry in the locations where such properties and
equipment are located.
6.06 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business in similar location, of such
types and in such amounts and subject to such deductibles or self-insured
retention levels as are customarily carried under similar circumstances by such
other Persons.
6.07 Compliance with Laws. Comply in all material respects with the
requirements of all Laws applicable to it or to its business or property, except
in such instances in which (i) such requirement of Law is being contested in
good faith or a bona fide dispute exists with respect thereto or (ii) the
failure to comply therewith would not reasonably be expected to have a Material
Adverse Effect.
6.08 Books and Records. Maintain proper books of record and account, in
which entries in conformity with GAAP shall be made of all financial
transactions and matters involving the assets and business of the Borrower or
such Subsidiary, as the case may be.
6.09 Inspection Rights. Permit representatives and independent contractors
of the Administrative Agent and each Lender to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that during the continuance of an Event of Default, the Administrative
Agent or any Lender may do any of the foregoing at the expense of the Borrower
and provided, further, that if no Event of Default shall then exist, the
foregoing shall be done and undertaken at the expense of the Administrative
Agent or such Lender, as the case may be.
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6.10 Use of Proceeds. Use the proceeds of the Credit Extensions for working
capital, commercial paper backup, refinancing of existing indebtedness, capital
expenditures, acquisitions, issuance of letters of credit and other general
corporate purposes not in contravention of any Law.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly, unless the Majority Lenders waive
compliance in writing:
7.01 Liens. Create, incur, assume or suffer to exist, any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document (as defined herein) or pursuant to
any "Loan Document" (as defined in the 364-Day Credit Agreement);
(b) Liens existing on the date hereof and listed on Schedule 7.01 and any
renewals, extensions, refinancings, rearrangements and other similar
modifications thereof, provided that the property covered thereby is not
increased relative to property covered thereby at the time of such renewal,
extension, refinancing, rearrangement or other similar modification;
(c) Liens for taxes, assessments, and other governmental charges or levies
not yet due or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with, and to the extent required
by, GAAP;
(d) carriers', landlords', warehousemen's, mechanics', materialmen's,
repairmen's, vendors', laborers', workers' or other like Liens arising in the
ordinary course of business which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate proceedings,
if adequate reserves as required under GAAP with respect thereto are maintained
on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance, pensions or other social
security benefits or obligations or public or statutory obligations;
(f) deposits or pledges to secure, or otherwise in connection with, the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety bonds, appeal, supersedeas and other bonds in
connection with judicial or administrative proceedings, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions, licenses,
conditions, permits and other similar encumbrances affecting real property or
minor irregularities in title
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thereto which, in the aggregate, are not substantial in amount, and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the applicable
Person;
(h) inchoate Liens arising under ERISA to secure current service pension
liabilities as the same are incurred under the provisions of Pension Plans from
time to time in effect;
(i) Liens arising by operation of law for master's and crew's wages and
other maritime liens arising by operation of law which are incurred in the
ordinary course of business;
(j) attachment Liens and other Liens securing judgments in an aggregate
amount not in excess of $50,000,000 (except to the extent covered by independent
third-party insurance as to which the insurer has acknowledged in writing its
obligation to cover), unless any such judgment remains undischarged for a period
of more than 45 consecutive days during which execution is not effectively
stayed;
(k) rights of lessees or sublessees under leases or subleases of property,
whether real, personal or mixed, to other Persons, if such leases or subleases
are not prohibited by Sections 7.03;
(l) purchase money security interests on any property acquired or held by
the Borrower or its Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property and any renewals, extensions, refinancings
rearrangements or other similar modifications thereof; provided that, (i) such
Lien attaches solely to the property so acquired in such transaction, and (ii)
the aggregate principal amount of the Indebtedness secured by any and all such
purchase money security interests shall not at any time exceed the purchase
price of such property acquired;
(m) statutory and common law rights of setoff, and rights of setoff under
general depository agreements and under reimbursement agreements executed in
connection with letters of credit issued for the account of the Borrower or a
Subsidiary, with respect to financial institution depository accounts maintained
by the Borrower or any Subsidiary in the ordinary course of business, which
accounts (i) remain (subject to such rights of setoff) at all times under the
dominion and control of the Borrower or such Subsidiary and (ii) are not at any
time subject to any balance requirements or other Liens of any kind;
(n) contractual rights of set-off in general depository accounts granted to
financial institutions pursuant to guarantees of Indebtedness (or other
obligations) of the Borrower or any Subsidiary otherwise permitted by this
Agreement, provided that the Borrower (or the applicable Subsidiary) maintains
(subject to such right of set-off) dominion and control over such account(s);
(o) Liens on cash collateral in respect of letters of credit and agreements
pursuant to which the same are issued;
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(p) Liens on assets or other property existing at the time such assets or
other property were acquired by the Borrower or any Subsidiary (whether acquired
directly or acquired indirectly by the purchase or other acquisition of another
Person); provided that such Liens were not created in contemplation of, or to
finance, such acquisition of such assets or other property by the Borrower or
any Subsidiary;
(q) Liens on assets or other property of the Borrower or any Subsidiary,
other than stock of Subsidiaries, not permitted by the foregoing clauses
(a)-(p); provided, that the aggregate consolidated book value of all such assets
encumbered at any one time shall not exceed 10% of the Borrower's Consolidated
Net Worth.
7.02 Subsidiary Indebtedness. The Borrower agrees that it shall not permit
any Subsidiary to create, incur or suffer to exist any Indebtedness, except
Indebtedness in an aggregate amount for all such Subsidiaries at no time to
exceed 10% of Consolidated Net Worth at the time of determination. For purposes
of determining the amount of "Indebtedness" under this Section 7.02, any
guaranties issued by a Subsidiary with respect to Indebtedness of the Borrower
shall constitute "Indebtedness" of such Subsidiary.
7.03 Fundamental Changes. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
Subsidiaries, provided that when any wholly-owned Subsidiary is merging with
another Subsidiary, the wholly-owned Subsidiary shall be the continuing or
surviving Person;
(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or to another Subsidiary;
provided that if the seller in such a transaction is a wholly-owned Subsidiary,
then the purchaser must also be a wholly-owned Subsidiary;
(c) any Subsidiary or the Borrower may merge or consolidate with another
Person; provided that (x) the Borrower or the Subsidiary involved in the merger
or the consolidation is the surviving corporation; and (y) immediately prior to
and after giving effect to such merger or consolidation, there exists no Default
or Event of Default.
7.04 Change in Nature of Business. Engage in any material line of business
substantially different from the Permitted Business.
7.05 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Borrower (other than a Subsidiary), other than upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than would be obtained in a comparable arm's-length transaction with a Person
not an Affiliate of the Borrower or such Subsidiary.
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7.06 Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
in violation of Regulation U or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose.
7.07 Subsidiary Distributions. Be a party to or enter into any agreement,
instrument or other document which prohibits or restricts in any way, or to
otherwise, directly or indirectly, create or cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to (i)
pay dividends or make any other distributions in respect of its capital stock or
any other equity interest or participation in any Subsidiary, or pay or repay
any Indebtedness owed to the Borrower or any Subsidiary, (ii) make loans or
advances to the Borrower or (iii) transfer any of its properties or assets to
the Borrower or any Subsidiary (subject to the rights of any holder of a Lien on
any such properties or assets which Lien is a Permitted Lien). Notwithstanding
the foregoing, this Section 7.07 shall not prohibit a Foreign Subsidiary from
entering into or being a party to agreements of the type customarily entered
into by Persons engaged in the same or similar business under similar
circumstances in such countries.
7.08 Financial Covenants.
(a) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
end of any fiscal quarter to be less than 3.75:1.00.
(b) Capitalization Ratio. Permit the Capitalization Ratio, expressed as a
percentage, as of the end of any fiscal quarter to be greater than 50%.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as the same become
due, any amount of principal of any Loan or any L/C Obligation, or (ii) within
five (5) Business Days after the same becomes due, any interest on any Loan or
on any L/C Obligation, any Commitment Fee, any Utilization Fee or other fee due
hereunder, or any other amount payable hereunder or under any other Loan
Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.03(a), 6.04, 6.10, Section
7.06 or 7.07; or
(c) Other Defaults. The Borrower fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the date upon which written notice thereof is given
to the Borrower by the Administrative Agent or any Lender; or
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(d) Representations and Warranties. Any representation or warranty made or
deemed made by the Borrower herein or in any other Loan Document, or in any
document delivered pursuant hereto or thereto proves to have been incorrect in
any material respect as of the date when made or deemed made; or
(e) Cross-Default. The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise but after the giving of any required notice
and the expiration of any applicable grace period) in respect of any
Indebtedness or Guaranty Obligation (other than Indebtedness hereunder) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $50,000,000 or (B) fails to observe or perform
any other agreement or condition contained in any instrument or agreement
evidencing or securing the same, the effect of which default or other event is
to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guaranty Obligation (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required and after the expiration of any applicable
grace period, if any, such Indebtedness to be demanded or to become due or to be
repurchased or redeemed prior to its stated maturity, or such Guaranty
Obligation to become payable or cash collateral in respect thereof to be
demanded; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its Material
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any part of its
property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Material
Subsidiary becomes unable, admits in writing its inability, or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 60 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Material
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding $50,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) or (ii)
any non-monetary final judgment that has, or would reasonably be expected to
have, a Material Adverse Effect and, in either case, (A) enforcement proceedings
are commenced by any creditor upon such judgment or order, or (B) there is a
period of 30 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or
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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted in liability of the Borrower under Title
IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of $35,000,000 and such liability is not paid when due after
the expiration of any applicable grace period, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of $35,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than the agreement of all the
Lenders or satisfaction in full of all the Obligations, ceases to be in full
force and effect, or is declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any respect; or the Borrower denies that
it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind this Agreement or any Note; or
(k) Change of Control. There occurs any Change of Control.
8.02 Remedies Upon Event of Default. If any Event of Default occurs, the
Administrative Agent shall, at the request of, or may, with the consent of, the
Majority Lenders:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal balance of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower (except as otherwise expressly set
forth herein);
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of Section 8.01 (and the expiry of any applicable grace period, or other
time set forth therein), the obligation of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
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ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein or in the other Loan Documents, nor shall the Administrative Agent
have or be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent. Without limiting
the generality of the foregoing sentence, the use of the term "agent" herein and
in the other Loan Documents with reference to the Administrative Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and only for so long) as the Administrative Agent may agree at the request
of the Majority Lenders to act for the L/C Issuer with respect thereto;
provided, however, that the L/C Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Article IX
included the L/C Issuer with respect to such acts or omissions and (ii) as
additionally provided herein with respect to the L/C Issuer.
9.02 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 Liability of Administrative Agent. No Agent-Related Person shall (a)
be liable to any Lender or Participant for any action taken or omitted to be
taken by such Agent-Related Person under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
the Borrower or any officer thereof, contained herein or in any other Loan
Document, or in any certificate,
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report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of the Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any Affiliate thereof.
9.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under any Loan Document unless it shall
first receive such advice or concurrence of the Majority Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Lenders or all the Lenders,
if required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and participants. Where
this Agreement expressly permits or prohibits an action unless the Majority
Lenders otherwise determine, the Administrative Agent shall, and in all other
instances, the Administrative Agent may, but shall not be required to, initiate
any solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent by the Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender.
9.05 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default" or such Default or
Event of Default shall be set out in a Compliance Certificate. The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default in accordance with Article VIII as may be directed by the
Majority Lenders; provided, however, that unless and until the Administrative
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Agent has received any such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in the
best interest of the Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Borrower or
any of its Affiliates which may come into the possession of any Agent-Related
Person.
Indemnification of Administrative Agent. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so in
accordance with this Agreement), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Liabilities incurred by it;
provided, however, that no Lender shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Liabilities determined
in a final, nonappealable judgment by a court of competent jurisdiction to have
been caused primarily by such Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Majority Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs and costs and expenses in connection with the use of
internet, IntraLinks or other similar information transmission systems in
connection with this Agreement) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of
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rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
9.08 Administrative Agent in its Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Borrower and their respective Affiliates as though Bank of America were not
the Administrative Agent or the L/C Issuer hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent or the L/C Issuer, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders; provided that any such
resignation by Bank of America shall also constitute its resignation as L/C
Issuer and Swing Line Lender. If the Administrative Agent resigns under this
Agreement, the Majority Lenders shall prior to the effective date of such
resignation appoint from among the Lenders a successor administrative agent for
the Lenders, the appointment of which successor administrative agent shall be
subject to the consent of the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). Upon the acceptance of its appointment as
successor administrative agent hereunder, (a) the Person acting as such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender
and the respective terms "Administrative Agent," "L/C Issuer" and "Swing Line
Lender" shall mean such successor administrative agent, Letter of Credit issuer
and swing line lender, and (b) the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated and the retiring
L/C Issuer's and Swing Line Lender's rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article IX and Sections 10.05 and
10.13 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective, and the Lenders shall perform all of the duties of
the Administrative
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Agent hereunder until such time, if any, as the Majority Lenders appoint a
successor agent as provided for above.
9.10 Other Agents; Arranger. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "co-syndication agent,"
"co-documentation agent," "book manager" or "lead arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower therefrom, shall be effective unless in writing and signed by the
Majority Lenders (or by the Administrative Agent at the written request of the
Majority Lenders) and the Borrower and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall, unless in writing and signed by each of the
Lenders directly affected thereby and by the Borrower, and acknowledged by the
Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02), except for any such extension
or increase made in accordance with Section 2.14;
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to the proviso below) any fees or other
amounts payable hereunder or under any other Loan Document, or change the manner
of determining the Applicable Margin that would result in a reduction of any
interest rate on any Loan or any fee; provided, however, that only the consent
of the Majority Lenders shall be necessary to amend the definition of "Default
Rate" or to waive any obligation of the Borrower to pay interest at the Default
Rate;
(d) change the percentage of the Aggregate Commitments or of the aggregate
unpaid principal amount of the Loans and L/C Obligations which is required for
the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender (except
for any change resulting from Sections 2.14 or 3.06(b)); or
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(f) amend this Section, or Section 2.13, or any provision herein providing
for consent or other action by all the Lenders;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Majority Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of the
L/C Issuer under this Agreement or any Letter of Credit Application relating to
any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in addition
to the Majority Lenders or each directly-affected Lender, as the case may be,
affect the rights or duties of the Swing Line Lender under this Agreement; (iii)
no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Majority Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and (iv)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the respective parties thereto. Notwithstanding
anything to the contrary herein, any Lender that has a Voting Percentage of zero
shall not have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Pro Rata Share of such Lender may not be
increased (except for any such increase resulting from Section 2.14 or 3.06(b))
without the consent of such Lender.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender. All such notices and other communications
shall be deemed to be given or made upon the earlier to occur of (i) actual
receipt by the intended recipient and (ii) (A) if delivered by hand or by
courier, when signed for by the intended recipient; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered
by facsimile, when sent and receipt thereof has been confirmed by telephone; and
(D) if delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent, the L/C Issuer and
the Swing Line Lender pursuant to Article II shall not be effective until
actually received by such Person. Any notice or other communication permitted to
be given, made or confirmed by telephone hereunder shall be given, made or
confirmed by means of a telephone call to the intended recipient at the
telephone number specified on Schedule 10.02, it being understood and agreed
that a voicemail message shall in no event be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and
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shall be binding on the Borrower, the Administrative Agent, the L/C Issuer, the
Swing Line Lender and each of the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Revolving Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof, except to the extent
such reliance thereon or taking of action constitutes gross negligence or
willful misconduct. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower, except to the extent such reliance constitutes gross negligence or
willful misconduct. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all reasonable third party out-of-pocket
costs and expenses incurred by it in connection with the preparation,
negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions hereof and
thereof (whether or not the transactions contemplated hereby or thereby are
consummated) and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs and costs and
expenses in connection with the use of internet, IntraLinks or other similar
information transmission systems in connection with this Agreement and (b)
during the existence of an Event of Default or after acceleration of the
Obligations, to pay or reimburse the Administrative Agent and each Lender for
all reasonable third party out-of-pocket costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during
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any legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The costs and expenses described in the foregoing
clauses (a) and (b) shall include all search, filing, recording, title insurance
and appraisal charges and fees and taxes related thereto and other out-of-pocket
expenses incurred by the Administrative Agent and the reasonable cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender during the existence of an Event of Default
or after acceleration of the Obligations. The agreements in this Section shall
survive the termination of the Aggregate Commitments and repayment of all other
Obligations.
10.05 Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify, save and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against: (a) any and all claims,
demands, actions or causes of action that may at any time (including at any time
following repayment of the Obligations and the resignation or removal of the
Administrative Agent or the replacement of any Lender) be asserted or imposed
against any Indemnitee, arising out of or relating to, the Loan Documents, any
Commitment or the use or contemplated use of the proceeds of any Credit
Extension; (b) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) above; and (c) any and all
liabilities (including liabilities under indemnities), losses, and reasonable
out-of-pocket third party costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not arising out
of the negligence of an Indemnitee, and whether or not an Indemnitee is a party
to such claim, demand, action, cause of action or proceeding (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that no Indemnitee shall
be entitled to indemnification for any of the foregoing to the extent the same
arise from its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. No Indemnitee shall be liable for any
damages arising from the use by others of any information or other materials
obtained through internet, Intralinks or other similar information transmission
systems in connection with this Agreement. The agreements in this Section shall
survive the termination of the Aggregate Commitments and repayment of all other
Obligations.
10.06 Payments Set Aside. To the extent that the Borrower makes a payment
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest
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thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate from time to time in effect.
10.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and
assignments by any Lender shall be subject to the terms and provisions of
Section 10.07(b). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, to the extent of the rights
expressly set forth in subsection (d) of this Section 10.07, any Participant,
and to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender (including the L/C Issuer) may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans (including
for purposes of this subsection (b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that (i) except in the case
of an assignment of the entire remaining amount of the assigning Lender's
Commitment and the Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) subject to each such assignment, determined as of
the date the Assignment and Assumption Agreement with respect to such assignment
is delivered to the Administrative Agent, shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans or the
Commitment assigned, except that this clause (ii) shall not apply to rights in
respect Swing Line Loans, and (iii) the parties to each assignment shall execute
and deliver to the Administrative Agent and the Borrower an Assignment and
Assumption Agreement, together with a processing and recordation fee to the
Administrative Agent of $3,500; provided, however, that in the event a Lender
assigns less than all of its interests hereunder, it shall retain a commitment
of not less than $10,000,000 after the consummation of the assignment; provided,
further, that the Borrower and the Administrative Agent may continue to deal
solely and directly with an assigning Lender until an assignment and assumption
in the form of Exhibit F (and a Revolving Loan Note if requested by the Eligible
Assignee), together with payment instructions, addresses and related information
with respect to the assignee shall have been provided to the Borrower and the
Administrative Agent. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to subsection (c) of this Section, from and after
the effective date specified in each Assignment and Assumption Agreement, the
Eligible Assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption Agreement, have the rights
and obligations of a Lender under
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this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.07, 10.04 and
10.05). Upon request, the Borrower (at its expense) shall execute and deliver
new or replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent's Office a copy of each
Assignment and Assumption Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender's participations in L/C Obligations
and/or Swing Line Loans) owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent the L/C
Issuer, the Swing Line Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant, or (ii) reduce the principal, interest, fees or
other amounts payable to such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
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(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 3.04 or 10.09 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
except to the extent, if any, Borrower shall expressly agree otherwise in a
written agreement executed by Borrower prior to the sale of the participation to
such Participant. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant, such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as though
it were a Lender, and Borrower expressly agrees in writing that such Participant
shall be entitled to the benefits of Section 3.01.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Notes, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto or
otherwise adversely affect the rights of the Borrower hereunder.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
Person) approved by (i) the Administrative Agent, in the case of any
assignment of a Revolving Loan, (ii) the L/C Issuer, (iii) the Swing Line
Lender, and (iv) unless (A) such Person is taking delivery of an assignment
in connection with physical settlement of a credit derivatives transaction
or (B) an Event of Default has occurred and is continuing, the Borrower
(each such approval referred to in clauses (i) through (iv) not to be
unreasonably withheld or delayed); provided, however, that a proposed
assignee which would otherwise be an Eligible Assignee hereunder is not an
Eligible Assignee unless such assignee is a U.S. resident for U.S. tax
purposes or such proposed assignee complies with Section 10.15.
"Fund" means any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon five Business
Days' notice to the Borrower, terminate the Swing Line. In the event of any such
resignation as L/C Issuer or termination of the Swing Line, the Borrower shall
be entitled to appoint from among the Lenders subject to the approval of such
Lender a successor L/C Issuer or Swing Line Lender hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or the termination of the Swing
Line, as the case may be. Bank of America shall retain all the
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rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Revolving Loans or fund participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America terminates the Swing
Line, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such termination, including the right to require the Lenders
to make Base Rate Revolving Loans or fund participations in outstanding Swing
Line Loans pursuant to Section 2.04(c).
10.08 Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors with a need to know such Information in the exercise of their
professional duties (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to the
extent requested by any regulatory authority with jurisdiction; (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process; (d) to any other party to this Agreement; (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder in each case,
after the occurrence of, and during the continuation of an Event of Default or
after acceleration of the Obligations; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor with a need to know such Information in the exercise of its professional
duties) to any credit derivative transaction relating to obligations of the
Borrower; (g) with the prior written consent of the Borrower; (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative Agent or
any Lender on a nonconfidential basis from a source other than the Borrower; or
(i) to the National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates. In
addition, the Administrative Agent and the Lenders may disclose the existence of
this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the
Credit Extensions. For the purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower other than any
such information that is available to the Administrative Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential.
10.09 Set-off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is
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authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Borrower against any and all Obligations owing to such Lender,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.
10.10 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate or amount of non-usurious
interest permitted to be contracted for, charged, received or collected by
applicable Law (the "Maximum Rate"). If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, received or collected by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations.
10.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties with respect to
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, with respect to such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control; provided that the
inclusion of supplemental rights or remedies in favor of the Administrative
Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall su