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Exhibit 10.16
PARENT GUARANTY AGREEMENT
[BJ SERVICES]
THIS PARENT GUARANTY AGREEMENT (this "Guaranty") by BJ SERVICES
COMPANY, a Delaware corporation (the "Guarantor"), is in favor of each of the
Banks (herein defined) from time to time parties to the Credit Agreement
(herein defined), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Issuing Bank and Swing Loan Bank, and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, (together with its successors and assigns herein called
the "U.S. Agent") and BANK OF AMERICA CANADA (together with its successors and
assigns herein called the "Canadian Agent"), as the U.S. Agent and Canadian
Agent, respectively, for and on behalf of the financial institutions (the
"Banks") now or hereafter party to that certain Amended and Restated Credit
Agreement, dated as of August 7, 1996 (as the same may be amended, modified or
restated from time to time and at any time, the "Credit Agreement") among the
Guarantor, BJ SERVICES COMPANY, U.S.A., a Delaware corporation ("BJ-USA), BJ
SERVICE INTERNATIONAL, INC., a Delaware corporation ("BJ- International"), BJ
SERVICES COMPANY MIDDLE EAST, a Delaware corporation ("BJ-Middle East"), NOWSCO
WELL SERVICE LTD., an Alberta, Canada corporation ("BJ-Canada"), the other
Subsidiary Borrowers (as defined in the Credit Agreement) (the Guarantor,
BJ-USA, BJ-International, BJ-Middle East, BJ-Canada and the other Subsidiary
Borrowers who are from time to time parties to the Credit Agreement are herein
referred to individually, as a "Borrower", and collectively, as "Borrowers"),
the Banks, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Issuing
Bank and Swing Loan Bank, the U.S. Agent, the Canadian Agent and the Senior
Co-Agent and the Co-Agents therein named. All capitalized terms used but not
defined herein shall have the meaning assigned to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, certain of the
Banks have agreed to make, continue and convert certain Loans and to issue or
participate in Letters of Credit to or for the benefit of the Borrowers;
WHEREAS, the obligation of the Banks to make, continue and convert the
Loans and to issue or participate in Letters of Credit is conditioned upon,
among other things, the execution and delivery by the Guarantor of this
Guaranty;
WHEREAS, the Guarantor and the other Borrowers are members of the same
consolidated group of companies and are engaged in related businesses and the
Guarantor will derive substantial direct and indirect economic benefit from the
Loans and the issuance of Letters of Credit;
NOW, THEREFORE, (i) in consideration of the premises and to induce the
Banks to enter into the Credit Agreement and to make, continue and convert the
Loans and to issue or participate in the Letters of Credit and accept Bankers'
Acceptances, (ii) at the special insistence and request of the U.S. Agent, the
Canadian Agent, the Issuing Bank and the Banks, and (iii) for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor,
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for the benefit of the U.S. Agent, the Canadian Agent, the Issuing Bank, the
Swing Loan Bank and the Banks, hereby agrees as follows:
Section 1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
Section 2. Guaranty. The Guarantor hereby, unconditionally and
irrevocably, guarantees the prompt performance and payment in full in Dollars
(or in the case of the Canadian Borrower, in Canadian Dollars) by each of the
Borrowers when due (whether at stated maturity, by acceleration or otherwise)
of the Obligations of each of the Borrowers, and the Guarantor further agrees
to pay all reasonable costs, fees and expenses (including, without limitation,
reasonable counsel fees, and the allocated cost of in-house counsel) incurred
by any Agent or any Bank in enforcing any rights under this Guaranty.
Section 3. Guaranty Absolute. (a) The obligations of the Guarantor
hereunder are those of a primary obligor, and not merely a surety, and are
independent of the Obligations. A separate action or actions may be brought
against the Guarantor whether or not an action is brought against the
Borrowers, any other guarantor or other obligor in respect of the Obligations
or whether the Borrowers, any other guarantor or any other obligor in respect
of the Obligations are joined in any such action or actions.
(b) The Guarantor guarantees that the Obligations will be paid and
performed strictly in accordance with the terms of the Credit Agreement and the
other Loan Documents regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agents or the Banks with respect thereto. Guarantor agrees that
its guarantee constitutes a guarantee of payment when due and not of collection
and that to the maximum extent permitted by applicable law, the liability of
the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of genuineness, validity, legality or
enforceability of the Credit Agreement, any other Loan Document or any
other document, agreement or instrument relating thereto or any
assignment or transfer of any thereof;
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations (including,
without limitation, the possible extension of the Revolving
Termination Date, Term Loan Maturity Date and increase of the amount
of the Commitments all on the terms and conditions set forth in the
Credit Agreement), or any waiver, indulgence, compromise, renewal,
extension, amendment, modification of, or addition, consent,
supplement to, or consent to departure from, or any other action or
inaction under or in respect of, the Credit Agreement or any other
Loan Document or any document, instrument or agreement relating to the
Obligations or any other instrument or agreement referred to therein
or any assignment or transfer of any thereof;
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(iii) any release or partial release of any other guarantor
or other obligor in respect of the Obligations;
(iv) any exchange, release or non-perfection of any
collateral for all or any of the Obligations, or any release, or
amendment or waiver of, or consent to departure from, any guaranty or
security, for all or any of the Obligations;
(v) any furnishing of any additional security for any of
the Obligations;
(vi) the liquidation, bankruptcy, insolvency or
reorganization of any Borrower, any other guarantor or other obligor
in respect of the Obligations or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(vii) any modification or termination of any intercreditor
or subordination agreement pursuant to which the claims of other
creditors of the Borrowers or the Guarantor are subordinated to those
of the Banks; or
(viii) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable discharge
of, the Borrower or the Guarantor.
(c) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time payment or performance of the Obligations,
or any part thereof, is, upon the insolvency, bankruptcy or reorganization of
one or more of the Borrowers or the Guarantor or otherwise pursuant to
applicable law, rescinded or reduced in amount or must otherwise be restored or
returned by any Agent or any Bank, all as though such payment or performance
had not been made.
(d) If an event permitting the acceleration of any of the
Obligations shall at any time have occurred and be continuing and such
acceleration shall at such time be prevented by reason of the pendency against
one or more of the Borrowers of a case or proceeding under any bankruptcy or
insolvency law or other creditor law, the Guarantor agrees that, for purposes
of this Guaranty and its obligations hereunder, the Obligations shall be deemed
to have been accelerated and the Guarantor shall forthwith pay such Obligations
(including, without limitation, interest which but for the filing of a petition
in bankruptcy with respect to the Borrowers, would accrue on such Obligations),
and the other obligations hereunder, without any further notice or demand.
Section 4. Waivers. Except as set forth in the Credit Agreement and
the other Loan Documents and to the extent permitted by applicable law, the
Guarantor hereby waives promptness, diligence, notice of intention to
accelerate, notice of acceleration, notice of acceptance and any and all other
notices with respect to any of the Obligations and this Guaranty and any
requirement that any Agent or any Bank protect, secure, perfect or insure any
security interest in or any Lien on any property subject thereto or exhaust any
right or take any action against the Borrowers, any other guarantor or any
other Person or any collateral or security or to any balance of any deposit
accounts or credit on the books of any Bank in favor of the Borrowers or the
Guarantor.
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Section 5. Subrogation. (a) The Guarantor will not exercise any
rights of subrogation, reimbursement and contribution, contractual, statutory
or otherwise which it may acquire by way of subrogation under this Guaranty, by
any payment hereunder or otherwise, until all of the Obligations, including
Bankers' Acceptances, of all of the Borrowers have been paid, all Commitments
have terminated and all Letters of Credit have expired.
(b) To the maximum extent permitted by applicable law (i) if, in
the exercise of any of its rights and remedies, any Agent or any Bank shall
forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against the Borrowers or any other Person, whether because
of any applicable laws pertaining to "election of remedies" or the like, the
Guarantor hereby consents to such action by such Agent or such Bank and waives
any claim based upon such action, even if such action by such Agent or such
Bank shall result in a full or partial loss of any rights of subrogation which
the Guarantor might otherwise have had but for such action by such Agent or
such Bank; (ii) any election of remedies which results in the denial or
impairment of the right of such Agent or such Bank to seek a deficiency
judgment against the Borrowers shall not impair the Guarantor's obligation to
pay the full amount of the Obligations; (iii) in the event any Agent or any
Bank shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or under the Loan Documents, such Agent or such Bank may bid
all or less than the amount of the Obligations and the amount of such bid need
not be paid by such Agent or such Bank but shall be credited against the
Obligations; and (iv) the amount of the successful bid at any such sale,
whether such Agent or such Bank or any other party is the successful bidder,
shall be conclusively deemed to be the fair market value of the Collateral and
the difference between such bid amount and the remaining balance of the
Obligations shall be conclusively deemed to be the amount of the Obligations
guaranteed under this Guaranty, notwithstanding that any present or future law
or court decision or ruling may have the effect of reducing the amount of any
deficiency claim to which any Agent or any Bank might otherwise be entitled but
for such bidding at any such sale.
Section 6. Further Assurances. (a) The Guarantor agrees that at any
time and from time to time, at the expense of the Guarantor, the Guarantor will
promptly execute and deliver all further instruments and documents, and take
all further action, that may be necessary or desirable, or that either Agent
may reasonably request, to enable such Agent to protect and to exercise and
enforce its rights and remedies hereunder.
(b) All representations and warranties, including, but not limited
to, as to due authorization and enforceability of the Guaranty, set forth in
the Credit Agreement are incorporated herein by reference and shall have the
same effect as if fully stated herein.
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Section 7. Application of Payments. Any payment received by an Agent
from the Guarantor (or from any Bank pursuant to Section 12 below), shall be
applied by such Agent as follows:
First, to the payment of reasonable costs and expenses of
collection and all reasonable expenses (including, without limitation,
any reasonable legal fees and disbursements and the reasonable
allocated cost of in-house counsel), liabilities and advances made or
incurred by the Agent in connection therewith;
Next, to the Banks pro rata, based on the then outstanding
amount of the Obligations owed to each in payment in full of the
Obligations; and
Finally, after payment in full of all Obligations and the
termination of the Commitments and expiration of all outstanding
Letters of Credit and Bankers' Acceptances, the payment to the
Guarantor, or its successors and assigns, or to whomsoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
proceeds.
Section 8. Decisions Relating to Exercise of Remedies.
Notwithstanding anything in this Guaranty to the contrary, any Agent may
exercise, and at the request of the Majority Banks shall exercise or refrain
from exercising, all rights and remedies provided for herein and provided by
law.
Section 9. No Waiver. No failure on the part of any Agent or any
Bank to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 10. Amendments, Etc. No amendment or waiver of any provision
of this Guaranty, nor consent to any departure by the Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed, in
the case of amendments, by the Guarantor and by the Agents and the Majority
Banks and, in the case of consent or waivers, by the Agents and the Majority
Banks and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which made or given.
Section 11. Notices. All notices, requests and other communications
provided for hereunder shall be in writing and given as provided in Section
11.03 of the Credit Agreement.
Section 12. Right to Set-off. (a) Upon the occurrence and during the
continuance of any Event of Default under the Credit Agreement, each Bank is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set-off and apply any and all deposits (general
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or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or for the credit or the account
of the Guarantor against any and all of the Obligations, irrespective of
whether or not such Bank shall have made any demand under this Guaranty and
although such Obligations may be contingent and unmatured. Each Bank which
sets-off pursuant to this Section 12(a) shall give prompt notice to the
Guarantor following the occurrence thereof; provided that the failure to give
such notice shall not affect the validity of the set-off.
(b) Any payment obtained pursuant to Section 12(a) above (or in
any other manner directly from the Guarantor) by any Bank shall be remitted to
the relevant Agent and distributed among the Banks in accordance with the
provisions of Section 7 above.
Section 13. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until payment in full
(after the termination of the Commitments and expiration of all outstanding
Letters of Credit and maturity of the Bankers' Acceptances) of the Obligations
and all other amounts payable under this Guaranty; (b) be binding upon the
Guarantor, its successors and assigns; and (c) inure to the benefit of the
Agents, the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Bank may
assign or otherwise transfer its rights and obligations under the Credit
Agreement to any other Person or entity, and such other Person or entity shall
thereupon become vested with all the benefits in respect thereof granted to the
Bank herein or otherwise, all as provided in, and to the extent set forth in,
Sections 11.08 and 11.09 of the Credit Agreement.
Section 14. Subordination of the Credit Parties' Obligations to the
Guarantor. The Guarantor hereby expressly covenants and agrees for the benefit
of the Agents and the Banks that all obligations and liabilities of the
Borrowers and their Subsidiaries to the Guarantor of whatsoever description
(including, without limitation, all intercompany receivables of the Guarantor
from the Borrowers) shall be subordinated and junior in right of payment to the
Obligations. Following the occurrence of an Event of Default, any indebtedness
of the Borrowers to the Guarantor shall, if either Agent shall so request, be
collected and received by the Guarantor as trustee for the Agents and the Banks
and paid over to the Agents and the Banks on account of the Obligations.
Section 15. Other Guarantors. The Guarantor acknowledges that
certain Subsidiaries of Guarantor (collectively, the "Other Guarantors") have
guaranteed the payment and performance of the Obligations pursuant to other
guaranty agreements executed in connection with the Credit Agreement (the
"Other Guaranty Agreements"). The Guarantor agrees that in the event a payment
shall be made by any Other Guarantor under any Other Guaranty Agreement, the
Other Guarantor (the "Claiming Guarantor") shall have and be entitled to rights
of contribution against the Guarantor pursuant to and in accordance with
applicable law. In the event the Guarantor makes any such payment to a Claiming
Guarantor, the Guarantor shall be subrogated to the rights of such Claiming
Guarantor to the extent of such payment. Notwithstanding any provision of this
Agreement to the
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contrary, all rights of the Other Guarantors under this Section and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full of
the Obligations. No failure on the part of the Guarantor or any Other
Guarantor to make the payments required by this Section (or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor or any Other Guarantor with
respect to any Guaranty, and the Guarantor and each Other Guarantor shall
remain liable for the full amount of the obligations under the guaranty
agreement executed by it. This Section 15 is intended only to confirm the
relative rights of the Guarantor and all Other Guarantors, and nothing set
forth in this sentence is intended to or shall impair the obligations of the
Guarantor and Other Guarantors, jointly and severally, to pay to the Agents and
the Banks, or any one or more of them, as the case may be, the Obligations as
and when the same shall become due and payable in accordance with the terms of
this Guaranty.
Section 16. Severability. If for any reason any provision or
provisions hereof are determined to be invalid and contrary to any existing or
future law, such invalidity shall not impair the operation of or affect those
portions of this Guaranty which are valid.
Section 17. Taxes. (a) Any and all payments by the Guarantor to any
Bank or any Agent under this Guaranty shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, the Guarantor
shall pay all Other Taxes. The foregoing sentences of this subsection 17(a)
shall not impair the obligation of any Bank or Agent pursuant to subsection
17(f).
(b) The Guarantor agrees to indemnify and hold harmless each Bank and
each Agent for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section)
paid by the Bank or the Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the date
the Bank or the Agent makes written demand therefor. In the event an Agent or
a Bank is required to pay Taxes or Other Taxes for which such Agent or such
Bank seeks indemnity hereunder, such Agent or such Bank, as applicable, shall
make written request to the Guarantor, together with evidence to substantiate
the same, no later than 60 days after paying such Taxes or Other Taxes;
provided, however, that a Bank's or Agent's failure to timely give notice of
such Taxes or Other Taxes shall not impair the Guarantor's obligations to
indemnify such Bank or such Agent against such Taxes or such Other Taxes. The
foregoing sentences of this subsection 17(b) shall not impair the obligation of
any Bank or Agent pursuant to subsection 17(f).
(c) If Guarantor shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Bank or any Agent, then: (i) the sum payable shall be increased as necessary so
that after making all required deductions and withholdings
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(including deductions and withholdings applicable to additional sums payable
under this Section) such Bank or such Agent, as the case may be, receives an
amount equal to the sum it would have received had no such deductions or
withholdings been made; (ii) the Guarantor shall make such deductions and
withholdings; (iii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law; and (iv) the Guarantor shall also pay to each Bank or either
Agent for the account of such Bank, at the time interest is paid, all
additional reasonable amounts which the respective Bank specifies as necessary
to preserve the after-tax yield the Bank would have received if such Taxes or
Other Taxes had not been imposed. The foregoing sentence of this subsection
17(c) shall not impair the obligation of any Bank or Agent pursuant to
subsection 17(f).
(d) Within 30 days after the date of any payment by the Guarantor
of Taxes or Other Taxes, the Guarantor shall furnish the U.S. Agent the
original or a certified copy of a receipt evidencing payment thereof, or other
evidence of payment satisfactory to the U.S. Agent.
(e) Notwithstanding anything contained herein or elsewhere to the
contrary, the foregoing subsections (a)- (d) shall in no event be applicable
to, or otherwise in respect of Taxes or Other Taxes arising or imposed as a
result of any assignment to a Person who is not an Eligible Assignee of, as the
case may be, any U.S. Borrowing or any part of the U.S. Commitment or any
Canadian Term Borrowing or any part of the Canadian Term Commitment. Without
limiting the generality of the foregoing, Guarantor shall not be liable for, or
be required to indemnify any Person for, any such taxes so arising as a result
of any such assignment to a Person who is not an Eligible Assignee.
(f) If the Guarantor at any time pays any amount under Sections
17(a), (b) or (c) to any Bank or any Agent, 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 Guarantor, such Bank or Agent, as the case may be, shall
pay to the Guarantor the amount of such refund or credit promptly, and in any
event within 60 days, following the receipt of such refund or credit by such
payee. Additionally such payee shall, within 60 days following the receipt of
such refund or credit, furnish to the Guarantor a calculation of such refund or
credit.
(g) The agreements and obligations of the Guarantor in this
Section shall survive the payment of all other Obligations.
SECTION 18. Currency Conversion and Indemnity. (a) The Guarantor
shall make any payments in the currency (the "Agreed Currency") in which the
Obligation was effected. If any payment is received on account of any
Obligation in any currency (the "Other Currency") other than the Agreed
Currency (whether voluntarily or pursuant to an order or judgment or the
enforcement thereof or the realization of any security or the liquidation of
the Guarantor or otherwise howsoever), such payment shall constitute a
discharge of the liability of the Guarantor hereunder and under the
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other Loan Documents in respect of such obligation only to the extent of the
amount of the Agreed Currency which the relevant Bank or Agent, as the case may
be, is able to purchase with the amount of the Other Currency received by it on
the Business Day next following such receipt in accordance with its normal
procedures and after deducting any premium and costs of exchange.
(b) If, for the purpose of obtaining or enforcing judgment in any
court in any jurisdiction, it becomes necessary to convert into a particular
currency (the "Judgment Currency") any amount due in the Agreed Currency then
the conversion shall be made on the basis of the rate of exchange prevailing on
the Business Day next preceding the day on which judgment is given and in any
event the Guarantor shall be obligated to pay the Agents and the Banks any
deficiency in accordance with this Section. For the foregoing purposes "rate
of exchange" means the rate at which the relevant Bank or Agent, as applicable,
in accordance with its normal banking procedures is able on the relevant date
to purchase the Agreed Currency with the Judgment Currency after deducting any
premium and costs of exchange.
(c) If (i) any Bank or Agent receives any payment or payments on
account of the liability of the Guarantor hereunder pursuant to any judgment or
order in any Other Currency, and (ii) the amount of the Agreed Currency which
the relevant Bank or Agent, as applicable, is able to purchase on the Business
Day next following such receipt with the proceeds of such payment or payments
in accordance with its normal procedures and after deducting any premiums and
costs of exchange is less than the amount of the Agreed Currency due in respect
of such obligations immediately prior to such judgment or order, then the
Guarantor on demand shall, and the Guarantor hereby agrees to, pay to the Banks
and the Agents amounts equal to the deficiency and any loss, cost or expense
arising out of or in connection with such deficiency.
(d) The agreements and obligations of the Guarantor in this
Section shall survive the payment of all other Obligations.
SECTION 19. GOVERNING LAW AND JURISDICTION. (a) THIS GUARANTY SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK; PROVIDED THAT THE AGENTS AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
THE GUARANTOR HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT
CORPORATION, WITH
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OFFICES ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, THE GUARANTOR AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN NEW YORK ON THE TERMS AND FOR THE PURPOSES OF
THIS PROVISION SATISFACTORY TO THE AGENT. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH IN SCHEDULE 11.03 OF THE CREDIT
AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE TEN DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT OR ANY BANK TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY OTHER JURISDICTION. THE
GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
(c) THE GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO.
SECTION 20. WAIVER OF JURY TRIAL. THE GUARANTOR WAIVES ITS RIGHTS TO
A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT
CLAIMS, TORT CLAIMS, OR OTHERWISE. THE GUARANTOR AGREES THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE GUARANTOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
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CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.
Section 21. ENTIRE AGREEMENT. THIS WRITTEN GUARANTY AND THE
INSTRUMENTS AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
BJ SERVICES COMPANY
By:
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Name:
Title:
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