EXHIBIT 4.5
CONFIDENTIAL; ATTORNEY/
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WORK PRODUCT; DRAFT 11/21/96
CALCULATION AGENCY AGREEMENT
THIS AGREEMENT dated as of December 18, 1996, between Halliburton Company,
a Delaware corporation (hereinafter called the "Company"), having its principal
executive office at 3600 Lincoln Plaza, 000 Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000-
3391, and The Chase Manhattan Bank, a New York banking corporation (hereinafter
sometimes called the "Calculation Agent" which term shall, unless the context
shall otherwise require, include its successors and assigns), having its
principal corporate trust office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company proposes to issue from time to time its Medium-Term Notes Due
Nine Months or More From Date of Issue, Series A, at an aggregate initial
offering price of up to $300,000,000 (the "Notes"). The terms and provisions of
the Notes have been established pursuant to that certain Second Senior Indenture
dated as of December 1, 1996 between the Company and Texas Commerce Bank
National Association, as Trustee (the "Trustee"), as supplemented, amended and
modified by the First Supplemental Indenture dated as of December 5, 1996 (the
"Indenture") or will, in accordance with the terms of the Indenture, be
established pursuant to an Officer's Certificate hereafter provided by the
Company to the Trustee (a "Note Terms Certificate").
The Company and the Trustee have contemporaneously, in accordance with the
terms of that certain Issuing and Paying Agency Agreement dated as of December
18, 1996 (the "IPA Agreement") between the Company and The Chase Manhattan Bank
(joined therein for limited purposes by the Trustee), appointed The Chase
Manhattan Bank as Authenticating Agent, Paying Agent and Security Registrar with
respect to the Notes. Certain of the Notes (the Floating Rate Notes) may bear
interest at a floating rate determined by reference to an interest rate formula,
and the Company desires to engage the Calculation Agent to perform certain
services in connection therewith.
NOW, THEREFORE, the parties hereto, for and in consideration of the
premises, the mutual covenants hereinafter contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
Section 1. Capitalized terms used but not defined in this Agreement are
defined in the Indenture and are used herein with the meanings ascribed to them.
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Section 2. The Company hereby appoints The Chase Manhattan Bank as
Calculation Agent for the Floating Rate Notes, upon the terms and subject to the
condition herein mentioned, and The Chase Manhattan Bank hereby accepts such
appointment. The Calculation Agent shall act as an agent of the Company for the
purpose of determining the interest rate or rates of the Floating Rate Notes.
Section 3. The Company agrees to deliver to the Calculation Agent, prior
to the issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of all terms and conditions relating to the
determination of the interest rate thereunder. The Company shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation
Agent hereby confirms its acceptance of the proposed form of Floating Rate Note
attached hereto as Exhibit "A".
Section 4. The Company shall notify the Calculation Agent of the issuance
of any Floating Rate Notes prior to the issuance thereof and, at the time of
such issuance of any Floating Rate Notes, shall deliver to the Calculation Agent
the information required to be provided by the Company for the calculation of
the applicable interest rates thereunder. The Calculation Agent shall calculate
the applicable interest rates for Floating Rate Notes in accordance with the
terms of such Notes, the Indenture, the IPA Agreement and the provisions of this
Agreement.
Section 5. Promptly following the determination of each change to the
interest rate applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Company and the principal paying Agent information
regarding the interest rate then in effect for such Floating Rate Note.
Section 6. The Company will pay the Calculation Agent such reasonable
compensation as shall be agreed upon with the Calculation Agent and the
reasonable expenses, including reasonable outside counsel fees, incurred by the
Calculation Agent in connection with its duties hereunder, upon receipt of such
invoices as the Company shall reasonably require.
Section 7. Notwithstanding any satisfaction or discharge of the Notes or
the IPA Agreement, the Company will indemnify the Calculation Agent against any
losses, liabilities, costs, claims, actions or demands that it may incur or
sustain or that may be made against it in connection with its appointment or the
exercise of its power and duties hereunder as well as the reasonable costs,
including the expenses and fees of counsel in defending any claim, action or
demand, except such losses, liabilities, costs, claimes, actions or demands as
may result from the willful misconduct or bad faith of the Calculation Agent or
any of its employees. The Calculation Agent shall incur no liability and shall
be indemnified and held harmless by the Company for, or in respect of, any
actions taken or suffered to be taken in good faith by the Calculation Agent in
reliance upon written instructions from the Company. In case any action is
brought against the Calculation Agent with
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respect to which the Calculation Agent intends to seek indemnification from the
Company pursuant to this paragraph 7, the Calculation Agent will notify the
Company in writing of the commencement thereof, and the Company will be entitled
to participate therein and to assume the defense thereof, with counsel
satisfactory to the Calculation Agent; provided, however, that, if the
defendants in any such action include both the Company and the Calculation Agent
and the Calculation Agent shall have reasonably concluded, after consultation
with legal counsel of its choosing, that there may be legal defenses available
to it that are different from or additional to those available to the Company,
the Calculation Agent shall have the right to select separate counsel to assert
such legal defenses and otherwise to participate in the defense of such action
on behalf of the Calculation Agent, and in such event the Company will indemnify
the Calculation Agent against the reasonable fees and expenses of such separate
counsel. In no event shall the Calculation Agent be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including without
limitation lost profits), even if the Calculation Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
Section 8. The Calculation Agent accepts its obligations herein set forth
upon the terms and conditions hereof, including the following, to all of which
the Company agrees:
(a) In performing its obligations under this Agreement, the
Calculation Agent is acting as agent for the Company and does not assume
any obligation towards, or any relationship of agency or trust for or with,
any of the Holders of the Notes;
(b) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Company made or
given under any provision of this Agreement shall be sufficient if signed
by any person whom the Calculation Agent reasonably believes to be a duly
authorized officer of the Company;
(c) the Calculation Agent shall be obligated to perform only such
duties as are set forth specifically herein and any duties necessarily
incidental thereto;
(d) the Calculation Agent shall be protected and shall incur no
liability for or in respect to any action taken or omitted to be taken or
anything suffered in good fath by it in reliance upon anything contained in
the Indenture, a Floating Rate Note, the IPA Agreement or any information
supplied to it by the Company pursuant to this Agreement, including the
information to be supplied pursuant to Sections 3 and 4 above;
(e) the Calculation Agent, whether acting for itself or in any other
capacity, may become the owner or pledgee of Notes with the same rights as
it would have had if it were not acting hereunder as Calculation Agent; and
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(f) the Calculation Agent shall incur no liability hereunder except as
may result from the willful misconduct or bad faith of it or its employees.
Section 9. The Company shall notify the Calculation Agent at least two
Business Days prior to the issuance of any Floating Rate Note with an interest
rate to be determined by reference to LIBOR or any other formula that would
require the Calculation Agent to select banks or other financial institutions
(the "Reference Banks") for purposes of quoting rates. Promptly thereafter, the
Calculation Agent will notify the Company of the names and addresses of such
Reference Banks. Forthwith upon any change in the identity of the Reference
Banks, the Calculation Agent shall notify the Company of such change. The
Calculation Agent shall not be responsible to the Company or any third party for
any failure of Reference Banks to fulfill their duties or to meet their
obligations as Reference Banks or as a result of the Calculation Agent having
acted on any quotation or other information given by any Reference Bank which
subsequently may be found to be incorrect (except in the event of willful
misconduct or bad faith).
Section 10. Except as provided below, the Calculation Agent may at any
time resign as Calculation Agent by giving notice to the Company of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such notice shall be given not
less than 60 days prior to the said effective date. Except as provided below,
the Company may remove the Calculation Agent by filing with the Calculation
Agent a notice of removal specifying the date when such removal shall become
effective (such date being at least 15 days after said filing). Any such
resignation or removal shall take effect upon:
(a) the appointment by the Company as hereinafter provided of a
successor Calculation Agent; and
(b) the acceptance of such appointment by such successor Calculation
Agent;
provided, however, that, if the Calculation has given not less than 60 days'
prior notice of its intention to resign and during such 60 days there has not
been an acceptance by a successor Calculation Agent of its appointment as such,
the Calculation Agent so resigning may petition any court of competent
jurisdiction for the appointment of a successor Calculation Agent. The Company
covenants that it shall appoint a successor Calculation Agent as soon as
practicable after receipt of any notice of resignation hereunder. Upon the
effectiveness of such resignation or removal, the Calculation Agent shall be
entitled to the payment of its compensation and the reimbursement of all
reasonable expenses (including reasonable outside counsel fees) incurred by it
pursuant to paragraph 6 hereof through the date of such resignation or removal.
Section 11. If at any time (i) the Calculation Agent shall resign or be
removed, shall become incapable of acting, shall determine to liquidate its
business or to dissolve, shall file a voluntary
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petition in bankruptcy, shall make an assignment for the benefit of its
creditors, shall consent to the appointment of a receiver, administrator or
other similar official for all or any substantial part of its property or shall
admit in writing its inability to pay or meet its debts as they mature, (ii) a
receiver, administrator or other similar official of the Calculation Agent or of
all or any substantial part of its property shall be appointed, (iii) any order
of any court shall be entered approving any petition filed by or against the
Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law or (iv) any public official shall take charge or control of the
Calculation Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a successor Calculation Agent shall be
appointed by the Company by an instrument in writing filed with a successor
Calculation Agent. Upon the appointment as aforesaid of a successor Calculation
Agent and acceptance by the latter of such appointment, the former Calculation
Agent shall cease to be Calculation Agent hereunder.
Section 12. Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor and the Company an instrument accepting
such appointment hereunder, and thereupon such successor Calculation Agent,
without any further act, deed or conveyance, shall become vested with all the
authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its reasonable compensation,
charges and disbursements then unpaid, shall thereupon become obliged to
transfer and deliver, and such successor Calculation Agent shall be entitled
receive, copies of any relevant records maintained by such predecessor
Calculation Agent.
Section 13. Any corporation or other legal entity into which the
Calculation Agent may be merged or converted or any corporation or other legal
entity with which the Calculation Agent may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which the Calculation
Agent shall be part shall, to the extent permitted by applicable law, be the
successor Calculation Agent under this Agreement without the execution or filing
of any paper or any further act on the part of the parties hereto. Notice of
any such merger, conversion, or consolidation shall forthwith be given to the
Company.
Section 14. The provisions of Section 7 hereof shall survive any
resignation or removal hereunder.
Section 15. Any notice required to be given hereunder shall be sent by
letter or telex or telecopy or communicated by telephone (subject, in the case
of communication by telephone, to confirmation dispatched within two Business
Days by letter, telex or telecopy), to the parties hereto at the addresses and
telephone and telecopy numbers set forth below or to such other address as the
party receiving such notice shall have previously specified:
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If to the Company: Halliburton Company
0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Calculation
Agent: The Chase Manhattan Bank
Corporate Trust Group
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000/3499
Attention: Ms. Xxxx Xxxxx
Section 16. This Agreement may be amended only by a writing duly executed
and delivered by each of the parties hereto.
Section 17. The provisions of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflicts of laws principles.
Section 18. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which, taken together, shall
constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
HALLIBURTON COMPANY
By:
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Title:
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THE CHASE MANHATTAN BANK
By:
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Title:
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