EXHIBIT 4.02
CALCULATION AGENCY AGREEMENT
BETWEEN
XXXXXX BROTHERS HOLDINGS INC.
AND
CITIBANK, N.A.
Dated as of March 26, 2002
Xxxxxx Brothers Holdings Inc., a Delaware corporation (the "Company"), has
authorized the issuance of up to $575,000,000 aggregate principal amount of its
Floating Rate Convertible Notes due 2022 (the "Notes").
The Company proposes to issue the Notes under and pursuant to the terms of
its Indenture dated as of September 1, 1987, as amended and supplemented (the
"Indenture"), between the Company and Citibank, N.A., as Trustee (the
"Trustee"). Terms not otherwise defined herein are used herein with the meanings
ascribed to them in the Indenture and in the Notes.
The Notes are to bear interest at rates per annum as set forth therein.
For the purpose of providing for an agent of the Company (in such capacity,
the "Calculation Agent") to calculate the interest rates applicable to the Notes
as specified and described therein, the Company and Citibank, N.A., a national
banking association, hereby agree as follows:
Section 1. Appointment of Calculation Agent. The Company hereby
appoints Citibank, N.A. as Calculation Agent of the Company with respect to
the Notes, and Citibank, N.A. hereby accepts such appointment in such
capacity and its obligations as set forth in this Agreement upon the terms
and conditions set forth in this Agreement.
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Section 2. Determinations and Other Duties of the Calculation Agent.
On each Interest Determination Date for the Notes, or as soon thereafter as
practicable, the Calculation Agent shall determine the applicable interest
rates as provided for and contemplated by the Notes. The Calculation Agent
shall notify the Company and the Trustee of such interest rates as soon as
reasonably practicable after the determination thereof. The Calculation
Agent shall perform such other actions and undertake such other duties of
the Calculation Agent as are described in the Notes to be performed or
undertaken by the Calculation Agent. The Calculation Agent shall not be
responsible for calculating Contingent Interest payments.
Section 3. Fees and Expenses. The Calculation Agent shall be entitled
to such compensation for its services under this Agreement as may be agreed
upon with the Company, and the Company shall pay such compensation and
shall reimburse the Calculation Agent for all reasonable expenses and
disbursements incurred or made by the Calculation Agent in connection with
the services rendered by it under this Agreement (including legal fees and
expenses) except any expenses, disbursements or advances attributable to
its negligence or bad faith.
Section 4. Rights and Liabilities of Calculation Agent. All
certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the
purposes of the provisions of the Notes relating to the payment and
calculation of interest thereon will (in the absence of willful default,
bad faith or manifest error) be binding on the Company, the Trustee, the
Calculation Agent and all of the Holders of the Notes, and no liability
will (in the absence of willful default, bad faith or manifest error)
attach to the Calculation Agent in connection with the exercise or
non-exercise by it of its powers, duties and discretion. The Calculation
Agent shall incur no liability for, or in respect of, any action taken,
omitted to be taken or suffered by it hereunder in reliance upon any
certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or communication reasonably believed by
it to be genuine. Unless otherwise specifically provided herein, any
certificate, affidavit, instruction, notice, request, direction, statement,
order or other communication from the Company made or given by it and sent,
delivered and directed to the Calculation Agent under, pursuant to, or as
permitted by any provision of this Agreement, shall be sufficient for
purposes of this Agreement if such communication is in writing and signed
by any officer of the Company. The Calculation Agent may consult with
counsel satisfactory to it and the opinion of such counsel shall constitute
full and complete authorization and protection of the Calculation Agent
with respect to any action taken, omitted to be taken or suffered by it
hereunder in good faith and in accordance with and in reliance upon the
opinion of such counsel. In acting under this Agreement and in connection
with the Notes, the Calculation Agent is acting solely as agent for the
Company; and in acting under this Agreement, the Calculation Agent (in its
capacity as such) does not assume any obligation towards, or any
relationship of agency or trust for or with, any of the owners or holders
of the Notes.
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Section 5. Duties of Calculation Agent. The Calculation Agent shall be
obligated to perform only such duties as are specifically set forth herein
and no other duties or obligations on the part of the Calculation Agent, in
its capacity as such, shall be implied by this Agreement.
Section 6. Termination, Resignation or Removal of Calculation Agent.
The Calculation Agent may at any time terminate this Agreement by giving no
less than 90 days written notice to the Company unless the Company consents
in writing to a shorter time. Upon receipt of notice of termination by the
Calculation Agent, the Company agrees promptly to appoint a successor
Calculation Agent. The Company may terminate this Agreement at any time by
giving written notice to the Calculation Agent and specifying the date when
the termination shall become effective. Notwithstanding the foregoing, no
termination by the Calculation Agent or by the Company shall become
effective prior to the date of the appointment by the Company, as provided
in Section 7 hereof, of a successor Calculation Agent and the acceptance of
such appointment by such successor Calculation Agent. Upon termination by
either party pursuant to the provisions of this Section, the Calculation
Agent shall be entitled to the payment of any compensation owed to it by
the Company hereunder and to the reimbursement of all reasonable expenses
and disbursements incurred or made by the Calculation Agent in connection
with the services rendered by it hereunder, as provided by Section 3
hereof, and the provisions of Section 8 hereof shall remain in effect
following such termination.
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Section 7. Appointment of Successor Calculation Agent. Any successor
Calculation Agent appointed by the Company following termination of this
Agreement pursuant to the provisions of Section 6 hereof shall execute and
deliver to the Calculation Agent and to the Company an instrument accepting
such appointment, and thereupon such successor Calculation Agent shall,
without any further act or instrument become vested with all the rights,
immunities, duties and obligations of the Calculation Agent, with like
effect as if originally named as Calculation Agent hereunder, and the
Calculation Agent shall thereupon be obligated to transfer and deliver, and
such successor Calculation Agent shall be entitled to receive and accept,
copies of any available records maintained by the Calculation Agent in
connection with the performance of its obligations hereunder.
Section 8. Indemnification. The Company shall indemnify and hold
harmless the Calculation Agent, its directors, officers and employees from
and against all actions, claims, damages, liabilities, losses and expenses
(including reasonable legal fees and expenses) relating to or arising out
of actions or omissions in any capacity hereunder, except actions, claims,
damages, liabilities, losses and expenses caused by the negligence or
willful misconduct of the Calculation Agent, its officers or employees. The
provisions of this Section 8 shall survive the termination, for any reason,
of this Agreement.
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Section 9. Merger, Consolidation or Sale of Business by Calculation
Agent. Any Person into which the Calculation Agent may be merged,
converted, or consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Calculation Agent may be a party,
or any Person to which the Calculation Agent may sell or otherwise transfer
all or substantially all of its business, shall, to the extent permitted by
applicable law, become the Calculation Agent under this Agreement without
the execution of any paper or any further act by the parties hereto. Notice
of any such merger, consolidation or sale shall forthwith be given to the
Company.
Section 10. Notices. Any notice or other communication given hereunder
shall be delivered in person, sent by letter or telepcopy or communicated
by telephone (subject, in the case of communication by telephone, to
written confirmation dispatched within 24 hours) to the address given below
or such other address as the party to receive such notice may have
previously specified pursuant to notice given in accordance with this
Section:
To the Company:
Xxxxxx Brothers Holdings Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Counsel
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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To the Calculation Agent:
Citibank, N.A.
000 Xxxx Xxxxxx - 14th Floor
New York, New York 10043
Attention: Citibank Agency & Trust
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Any notice hereunder given by letter or telecopy shall be deemed to
have been received when it would have been received in the ordinary course of
post or transmission, as the case may be.
Section 11. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof.
Section 12. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shallbe an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, this Agreement has been entered into as of the day
and year first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxx Xxxxx
Name:Xxxxxx Xxxxx
Title: Vice President
CITIBANK, N.A.
By:/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title:Vice President
