ISSUING AND PAYING AGENCY
AGREEMENT
[FOREIGN ISSUER WITH GUARANTY]
This Agreement,
dated as of October 25, 2005 , is by and among
Weatherford International Ltd., (the
“Issuer” ), Weatherford International,
Inc., (the “Guarantor” ) and JPMorgan Chase
Bank, National Association ( “JPMorgan”
).
1.
APPOINTMENT AND ACCEPTANCE
The Issuer and the
Guarantor hereby request that JPMorgan act as the Issuer’s
issuing and paying agent in connection with the issuance and
payment of certain promissory notes of the Issuer which are from
time to time issued in the commercial paper markets (the
“Notes” ), as further described herein, and
JPMorgan agrees to act as such agent upon the terms and conditions
contained in this Agreement.
2.
COMMERCIAL PAPER PROGRAMS
The Issuer may
establish one or more commercial paper programs under this
Agreement by delivering to JPMorgan a completed program schedule
(the “Program Schedule” ) with respect to
each such program. JPMorgan has given the Issuer a copy of
the current form of Program Schedule, and the Issuer shall complete
and return its first Program Schedule to JPMorgan prior to or
simultaneously with the execution of this Agreement. In the event
that any of the information provided in, or attached to, a Program
Schedule shall change, the Issuer shall promptly inform JPMorgan of
such change in writing.
All Notes issued
by the Issuer under this Agreement shall be promissory notes,
guaranteed by the Guarantor, exempt from the registration
requirements of the Securities Act of 1933, as amended, and from
applicable state securities laws. The Notes may be placed by
dealers (the “Dealers” ) pursuant to
Section 4 hereof. Notes shall be issued in either certificated
or book-entry form.
4.
AUTHORIZED REPRESENTATIVES
The Issuer shall
deliver to JPMorgan a certified copy of duly adopted corporate
resolutions from its Board of Directors (or other governing body)
authorizing the issuance of Notes under each program established
pursuant to this Agreement and a certificate of incumbency, with
specimen signatures attached, of those officers, employees and
agents of the Issuer authorized to take certain actions with
respect to the Notes as provided in this Agreement. The Guarantor
shall deliver to JPMorgan a certified copy of duly adopted
corporate resolutions from its Board of Directors (or other
governing body) authorizing its guaranty of the Notes and a
certificate of incumbency, with specimen signatures attached, of
those officers, employees and agents of the Guarantor authorized to
execute this Agreement and take certain actions with respect to the
Notes as provided in this Agreement. Each person named on any
certificate of incumbency of the Issuer or the Guarantor is
hereinafter referred to as an “Authorized
Representative” . Until JPMorgan receives any subsequent
incumbency certificates, JPMorgan shall be entitled to rely on the
last incumbency certificate delivered to it by the Issuer or the
Guarantor for the purpose of determining such party’s
Authorized Representatives. The Issuer and Guarantor represent and
warrant that each of its Authorized Representatives may appoint
other officers, employees and agents (the
“Delegates” ), including without limitation any
Dealers, to issue instructions to JPMorgan under this Agreement,
and take other actions on its behalf hereunder, provided that
notice of the appointment of each Delegate is delivered to JPMorgan
in writing. Each such appointment shall remain in effect unless and
until revoked by the Issuer or the Guarantor in a written notice to
JPMorgan.
If and when the
Issuer intends to issue certificated notes ( “Certificated
Notes” ), the Issuer and JPMorgan shall agree upon the
form of such Notes. Thereafter, the Issuer shall from time to time
deliver to JPMorgan adequate supplies of Certificated Notes which
will be in form then agreed, serially numbered, and shall be
executed by the manual or facsimile signature of an Authorized
Representative of each of the Issuer and the Guarantor. JPMorgan
will acknowledge receipt of any supply of Certificated Notes
received from the Issuer, noting any exceptions to the shipping
manifest or transmittal letter (if any), and will hold the
Certificated Notes in safekeeping for the Issuer in accordance with
JPMorgan’s customary practices. JPMorgan shall not have any
liability to the Issuer or the Guarantor to determine by whom or by
what means a facsimile signature may have been affixed on
Certificated Notes, or to determine whether any facsimile or manual
signature is genuine, if such facsimile or manual signature
resembles the specimen signature attached to the Issuer’s
certificate of incumbency with respect to such Authorized
Representative. Any Certificated Note bearing the manual or
facsimile signature of a person who is an Authorized Representative
on the date such signature was affixed shall bind the Issuer and
the Guarantor after completion thereof by JPMorgan, notwithstanding
that such person shall have ceased to hold his or her office on the
date such Note is countersigned or delivered by
JPMorgan.
The Issuer’s
Book-entry notes ( “Book-Entry Notes” ) shall
not be issued in physical form, but their aggregate face amount
shall be represented by a master note (the “Master
Note” ) in the form of Exhibit A, with restricted
legend as provided in any related dealer agreement affixed thereto,
executed by the Issuer and the Guarantor pursuant to the book-entry
commercial paper program of The Depository Trust Company (
“DTC” ). JPMorgan shall maintain the Master Note
in safekeeping, in accordance with its customary practices, on
behalf of Cede & Co., the registered owner thereof and nominee
of DTC. As long as Cede & Co. is the registered owner of the
Master Note, the beneficial ownership interest therein shall be
shown on, and the transfer of ownership thereof shall be effected
through, entries on the books maintained by DTC and the books of
its direct and indirect participants. The Master Note and the
Book-entry Notes shall be subject to DTC’s rules and
procedures, as amended from time to time. JPMorgan shall not be
liable or responsible for sending transaction statements of any
kind to DTC’s participants or the beneficial owners of the
Book-entry Notes, or for maintaining, supervising or reviewing the
records of DTC or its participants with respect to such Notes. In
connection with DTC’s program, the Issuer and Guarantor
understand that JPMorgan has previously entered into a commercial
paper Certificate Agreement with DTC, a copy of which, as amended
or otherwise modified and currently in effect, is attached as
Exhibit B hereto and as one of the conditions of their
participation therein, it shall be necessary for the Issuer, the
Guarantor and JPMorgan to enter into a Letter of Representations,
in the form of Exhibit C hereto, and for DTC to receive and
accept such Letter of Representation. In accordance with
DTC’s program, JPMorgan shall obtain from the CUSIP Service
Bureau a written list of CUSIP numbers for Issuer’s
Book-entry Notes, and JPMorgan shall deliver such list to DTC. The
CUSIP Service Bureau shall bill the Issuer directly for the fee or
fees payable for the list of CUSIP numbers for the Issuer’s
Book-entry Notes.
7. ISSUANCE
INSTRUCTIONS TO JPMORGAN; PURCHASE PAYMENTS
The Issuer and the
Guarantor understand that all instructions under this Agreement are
to be directed to JPMorgan’s Commercial Paper Operations
Department. JPMorgan shall provide the Issuer, the Guarantor, or,
if applicable, the Issuer’s Dealers, with access to
JPMorgan’s Money Market Issuance System or other electronic
means (collectively, the “System” ) in order
that JPMorgan may receive electronic instructions for the issuance
of Notes. Electronic instructions must be transmitted in accordance
with the procedures furnished by JPMorgan to the Guarantor, the
Issuer or its Dealers in connection with the System. In the event
that the System is inoperable at any time, an Authorized
Representative or a Delegate may deliver written, telephone or
facsimile instructions to JPMorgan, which instructions shall be
verified in accordance with any
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security
procedures agreed upon by the parties. JPMorgan shall incur no
liability to the Issuer or the Guarantor in acting upon
instructions believed by JPMorgan in good faith to have been given
by an Authorized Representative or a Delegate. In the event that a
discrepancy exists between a telephonic instruction and a written
confirmation, the telephonic instruction will be deemed the
controlling and proper instruction. JPMorgan may electronically
record any conversations made pursuant to this Agreement, and the
Issuer and the Guarantor hereby consent to such recordings. All
issuance instructions regarding the Notes must be received by 1:00
P.M. New York time in order for the Notes to be issued or delivered
on the same day.
(a) Issuance
and Purchase of Book-entry Notes. Upon receipt of issuance
instructions from the Issuer or its Dealers with respect to
Book-entry Notes, JPMorgan shall transmit such instructions to DTC
and direct DTC to cause appropriate entries of the Book-entry Notes
to be made in accordance with DTC’s applicable rules,
regulations and procedures for book-entry commercial paper
programs. JPMorgan shall assign CUSIP numbers to the Issuer’s
Book-entry Notes to identify the Issuer’s aggregate principal
amount of outstanding Book-entry Notes in DTC’s system,
together with the aggregate unpaid interest (if any) on such Notes.
Promptly following DTC’s established settlement time on each
issuance date, JPMorgan shall access DTC’s system to verify
whether settlement has occurred with respect to the Issuer’s
Book-entry Notes. Prior to the close of business on such business
day, JPMorgan shall deposit immediately available funds in the
amount of the proceeds due the Issuer (if any) to the
Issuer’s account at JPMorgan and designated in the applicable
Program Schedule (the “Account” ), provided that
JPMorgan has received DTC’s confirmation that the Book-entry
Notes have settled in accordance with DTC’s applicable rules,
regulations and procedures. JPMorgan shall have no liability to the
Issuer or the Guarantor whatsoever if any DTC participant
purchasing a Book-entry Note fails to settle or delays in settling
its balance with DTC or if DTC fails to perform in any
respect.
(b) Issuance
and Purchase of Certificated Notes. Upon receipt of issuance
instructions with respect to Certificated Notes, JPMorgan shall:
(a) complete each Certificated Note as to payee (whether
“bearer” or specific person, in either case, as
expressly directed by the Issuer, principal amount, date of issue,
maturity date, place of payment, and rate or amount of interest (if
such Note is interest bearing) in accordance with such
instructions; (b) countersign each Certificated Note; and
(c) deliver each Certificated Note in accordance with the
Issuer’s instructions. Whenever JPMorgan is instructed to
deliver any Certificated Note other than in person at
JPMorgan’s office in New York or Chicago, JPMorgan shall
strike from the Certificated Note the word “Bearer,”
insert as payee the name of the person so designated by the Issuer
or the Guarantor and effect delivery to such payee or to such other
person, in each case, as is specified in such instructions to
receive the Certificated Note. The Issuer and the Guarantor
understand that, in accordance with the custom prevailing in the
commercial paper market, delivery of Certificated Notes may be made
before the actual receipt of payment for such Notes in immediately
available funds; however, if JPMorgan is instructed to deliver a
Certificated Note against payment, then delivery may only be made
if it is again actual receipt of payment therefore. If the Issuer
has not conditioned delivery of a Certificated Note against receipt
of payment therefore, then once JPMorgan has delivered a
Certificated Note to the designated recipient, the Issuer and the
Guarantor shall bear the risk that such recipient may fail to remit
payment of such Note or return such Note to JPMorgan. Delivery of
Certificated Notes shall be subject to the rules of the New York
Clearing House in effect at the time of such delivery. Funds
received in payment of Certificated Notes shall be credited to the
Account.
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8. USE OF
SALES PROCEEDS IN ADVANCE OF PAYMENT
JPMorgan is not
obligated to credit the Issuer’s Account for any portion of
the purchase price of any Note for which JPMorgan has not received
payment thereof. From time to time, JPMorgan, in its sole
discretion, may permit the Issuer to have use of funds payable with
respect to the Notes prior to JPMorgan’s receipt of the sales
proceeds of such Notes. If JPMorgan makes a deposit, payment or
transfer of funds on behalf of the Issuer before JPMorgan receives
payment for any Notes, such deposit, payment or transfer of funds
shall represent an advance by JPMorgan to the Issuer to be repaid
promptly, and in any event on the same day as it is made, from the
proceeds of the sale of the Notes, or by the Issuer or the
Guarantor if such proceeds are not received by JPMorgan.
9. PAYMENT
OF MATURED NOTES
Notice that an
Issuer will not redeem any Note on the relative Initial Redemption
Date (as defined in the applicable extendible commercial note
announcement) must be received in writing by JPMorgan by
11:00 A.M. on such Initial Redemption Date. On any day when a
Note matures or is prepaid, the Issuer shall transmit, or cause to
be transmitted, to the Account, prior to 2:00 P.M. New York time on
the same day, an amount of immediately available funds sufficient
to pay the aggregate principal amount of such Note and any
applicable interest due. JPMorgan shall pay the interest (if any)
and principal on a Book-entry Note to DTC in immediately available
funds, which payment shall be by net settlement of JPMorgan’s
account at DTC. JPMorgan shall pay Certificated Notes upon
presentment. JPMorgan may without liability to the Issuer or the
Guarantor refuse to pay any Note that would result in an overdraft
to the Account.
(a) Intraday overdrafts with respect to
each Account shall be subject to JPMorgan’s policies as in
effect from time to time.
(b) An
overdraft will exist in an Account if JPMorgan, in its sole
discretion, (i) permits an advance to be made pursuant to
Section 8, notwithstanding the provisions of Section 8,
and such advance is not repaid in full on the same day as it is
made, or (ii) pays a Note pursuant to Section 9 in excess
of the available collected balance in such Account. Overdrafts
shall be subject to JPMorgan’s established banking practices,
including, without limitation, the imposition of interest, funds
usage charges and administrative fees. The Issuer shall repay any
such overdraft, fees and charges no later than the next business
day, together with interest on the overdraft at the rate
established by JPMorgan for the Account, computed from and
including the date of the overdraft to the date of
repayment.
11. NO PRIOR
COURSE OF DEALING
No prior action or
course of dealing on the part of JPMorgan with respect to advances
of the purchase price or payments of matured Notes shall give rise
to any claim or cause of action by the Issuer or the Guarantor
against JPMorgan in the event that JPMorgan refuses to pay or
settle any Notes for which the Issuer or the Guarantor has not
timely provided funds as required by this Agreement.
12. RETURN
OF CERTIFICATED NOTES
JPMorgan will in
due course cancel any Certificated Note presented for payment and
return such Note to the Issuer. JPMorgan shall also cancel and
return to the Issuer any spoiled or voided Certificated Notes.
Promptly upon written request of the Issuer or at the termination
of this Agreement, JPMorgan shall, as requested by the Issuer,
destroy all blank, Certificated Notes that have been delivered to
or at the direction of JPMorgan hereunder and have not been
authorized
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for issuance
(the “Unissued Notes”) or (ii) return to the
Issuer all Unissued Notes, and furnish a certificate to the Issuer
certifying such actions.
13.
INFORMATION FURNISHED BY JPMORGAN
Upon the
reasonable request of the Issuer or the Guarantor, JPMorgan shall
promptly provide the Issuer or the Guarantor with information with
respect to any Note issued and paid hereunder, provided,
that the Issuer or the Guarantor delivers such request in
writing and, to the extent applicable and if JPMorgan has
previously provided to the Issuer the following information,
includes the serial number or
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