CALCULATION AGENCY AGREEMENT
CALCULATION AGENCY AGREEMENT, dated as of November 10, 2006 (the
"Agreement"), between ▇▇▇▇▇▇ Brothers Holdings Inc. (the "Company") and ▇▇▇▇▇▇
Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of up to $2,300,000
aggregate principal amount of Contingent Payout Notes Due November 11, 2007
Linked to the adjusted relative performance of the S&P 100(R) Index (OEX) vs.
the ▇▇▇▇▇▇▇ 2000(R) Index (RTY) (the "Securities")*;
WHEREAS, the Securities will be issued under an Indenture, dated as of
September 1, 1987, between the Company and Citibank, N.A., as Trustee (the
"Trustee"), as supplemented and amended by supplemental indentures dated as of
November 25, 1987, November 27, 1990, September 13, 1991, October 4, 1993,
October 1, 1995, and June 26, 1997, and incorporating Standard Multiple Series
Indenture Provisions dated July 30, 1987, as amended November 16, 1987
(collectively, the "Indenture"); and
WHEREAS, the Company requests the Calculation Agent to perform certain
services described herein in connection with the Securities;
NOW THEREFORE, the Company and the Calculation Agent agree as follows:
1. Appointment of Agent. The Company hereby appoints ▇▇▇▇▇▇ Brothers
Inc., as Calculation Agent, and ▇▇▇▇▇▇ Brothers Inc. hereby accepts such
appointment as the Company's agent for the purpose of performing the services
hereinafter described upon the terms and subject to the conditions hereinafter
mentioned.
2. Calculations and Information Provided. In response to a request
made by the Trustee for a determination of the Maturity Payment Amount due on
the Stated Maturity Date or for a determination of the Redemption Price due on
the Redemption Date, the Calculation Agent shall determine such Maturity Payment
Amount or Redemption Price and notify the Trustee of its determination. The
Calculation Agent shall also determine (a) the Successor Index if publication of
an Index is discontinued, (b) the Closing Index Level if no Successor Index is
available or if a Publisher or the publisher of any Successor Index, as the case
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* "Standard & Poor's," "S&P," "S&P 100," and "100" are trademarks of McGraw
Hill, Inc. and have been licensed for use by the Company. "▇▇▇▇▇▇▇ 2000
Index" is a trademark of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company and has been licensed
for use by the Company. The Securities, linked to the performance of the
S&P 100 Index relative to the performance of the ▇▇▇▇▇▇▇ 2000 Index, are
not sponsored, endorsed, sold or promoted by Standard & Poor's or the ▇▇▇▇▇
▇▇▇▇▇▇▇ Company and neither Standard & Poor's nor the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company
makes any representation regarding the advisability of investing in the
Securities.
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may be, fails to calculate and publish a Closing Index Level on any date, (c)
adjustments to an Index, any Successor Index or the Closing Index Level thereof
if the method of calculating any of these items changes in a material respect or
if an Index or Successor Index is in any other way modified so that it does not,
in the opinion of the Calculation Agent, fairly represent the level of such
Index, or Successor Index, as the case may be, had such changes or modifications
not been made, and (d) whether a Market Disruption Event has occurred. The
Calculation Agent shall notify the Trustee of all such adjustments or any such
Successor Index, or if a Market Disruption Event has occurred. Annex A hereto
sets forth the procedures the Calculation Agent will use to determine the
information described in this Section 2.
3. Calculations. Any calculation or determination by the Calculation
Agent pursuant hereto shall (in the absence of manifest error) be final and
binding. Any calculation made by the Calculation Agent hereunder shall, at the
Trustee's request, be made available at the Corporate Trust Office.
4. Fees and Expenses. The Calculation Agent shall be entitled to
reasonable compensation for all services rendered by it as agreed to between the
Calculation Agent and the Company.
5. Terms and Conditions. The Calculation Agent accepts its obligations
herein set out upon the terms and conditions hereof, including the following, to
all of which the Company agrees:
(a) in acting under this Agreement, the Calculation Agent is acting
solely as an independent expert of the Company and does not assume any
obligation toward, or any relationship of agency or trust for or with, any
of the holders of the Securities;
(b) unless otherwise specifically provided herein, any order,
certificate, notice, request, direction or other communication from the
Company or the Trustee 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 or attorney-in-fact of
the Company or the Trustee, as the case may be;
(c) the Calculation Agent shall be obliged to perform only such duties
as are set out specifically herein and any duties necessarily incidental
thereto;
(d) the Calculation Agent, whether acting for itself or in any other
capacity, may become the owner or pledgee of Securities with the same
rights as it would have had if it were not acting hereunder as Calculation
Agent; and
(e) the Calculation Agent shall incur no liability hereunder except
for loss sustained by reason of its gross negligence or willful misconduct.
6. Resignation; Removal; Successor. (a) The Calculation Agent may at
any time resign by giving written notice to the Company of such intention on its
part, specifying the date on which its desired resignation shall become
effective, subject to the appointment of a
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successor Calculation Agent and acceptance of such appointment by such successor
Calculation Agent, as hereinafter provided. The Calculation Agent hereunder may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Calculation
Agent and the acceptance of such appointment by such successor Calculation
Agent. In the event a successor Calculation Agent has not been appointed and has
not accepted its duties within 90 days of the Calculation Agent's notice of
resignation, the Calculation Agent may apply to any court of competent
jurisdiction for the designation of a successor Calculation Agent.
(b) In case at any time the Calculation Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver or custodian of all or any substantial part of
its property, or shall admit in writing its inability to pay or meet its debts
as they mature, or if a receiver or custodian of it or all or any substantial
part of its property shall be appointed, or if any public officer shall have
taken charge or control of the Calculation Agent or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a successor
Calculation Agent shall be appointed by the Company by an instrument in writing,
filed with the successor Calculation Agent. Upon the appointment as aforesaid of
a successor Calculation Agent and acceptance by the latter of such appointment,
the Calculation Agent so superseded shall cease to be Calculation Agent
hereunder.
(c) Any successor Calculation Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor, to the Company and to the Trustee an
instrument accepting such appointment hereunder and agreeing to be bound by the
terms hereof, and thereupon such successor Calculation Agent, without any
further act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as Calculation Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such successor
Calculation Agent shall be entitled to receive, all moneys, securities and other
property on deposit with or held by such predecessor, as Calculation Agent
hereunder.
(d) Any corporation into which the Calculation Agent hereunder may be
merged or converted or any corporation 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 a party, or any
corporation to which the Calculation Agent shall sell or otherwise transfer all
or substantially all of the assets and business of the Calculation Agent shall
be the successor Calculation Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
7. Certain Definitions. Terms not otherwise defined herein or in Annex
A hereto are used herein as defined in the Indenture or the Securities.
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8. Indemnification. The Company will indemnify the Calculation Agent
against any losses or liability which it may incur or sustain in connection with
its appointment or the exercise of its powers and duties hereunder except such
as may result from the gross negligence or willful misconduct of the Calculation
Agent or any of its agents or employees. The Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Company for, or in
respect of, any action taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon written instructions from the Company.
9. Notices. Any notice required to be given hereunder shall be
delivered in person, sent (unless otherwise specified in this Agreement) by
letter, telex or facsimile transmission or communicated by telephone (confirmed
in a writing dispatched within two Business Days), (a) in the case of the
Company, to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile: (646)
▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Treasurer, with a copy to ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇)
(telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Secretary, (b) in the case of
the Calculation Agent, to it at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) (telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Equity
Derivatives Trading and (c) in the case of the Trustee, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇)
(telephone: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Agency and Trust, or in any case, to any
other address or number of which the party receiving notice shall have notified
the party giving such notice in writing. Any notice hereunder given by telex,
facsimile or letter shall be deemed to be served when in the ordinary course of
transmission or post, as the case may be, it would be received.
10. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
12. Benefit of Agreement. 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.
IN WITNESS WHEREOF, this Calculation Agency Agreement has been entered
into as of the day and year first above written.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS INC.,
as Calculation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
[Calculation Agency Agreement]
ANNEX A
1. The Indices.
The S&P 100(R) Index (the "S&P 100 Index"), as calculated, published
and disseminated by Standard & Poor's, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("S&P")
and the ▇▇▇▇▇▇▇ 2000(R) Index (the "▇▇▇▇▇▇▇ 2000 Index") (the S&P 100 Index and
the ▇▇▇▇▇▇▇ 2000 Index, each an "Index"), as calculated, published and
disseminated by the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company ("▇▇▇▇▇▇▇") (S&P and ▇▇▇▇▇▇▇, each a
"Publisher").
2. Determination of the Maturity Payment Amount.
The Calculation Agent shall, at the request of the Trustee, determine
the amount payable on the Stated Maturity Date for each $1,000 principal amount
of Securities (the "Maturity Payment Amount").
The Maturity Payment Amount shall be the following:
o If the Final Relative Performance is positive or zero, $1,130.
o If the Final Relative Performance is negative:
$1,000 + ($1,000 x Final Relative Performance).
3. Determination of the Redemption Price.
The Calculation Agent shall, at the request of the Trustee, determine
the amount payable on the Redemption Date for each $1,000 principal amount of
Securities (the "Redemption Price").
The Redemption Price shall be the following:
Present Value of $1,000 + ($1,000 x Redemption Relative
Performance);
provided, however, that in no event shall the Holder owe any
amount to the Company.
4. Discontinuance of an Index.
(a) If a Publisher discontinues publication of an Index and such Publisher
or another entity publishes a successor or substitute index (the "Successor
Index") that the Calculation Agent determines, in its sole discretion exercised
in good faith, to be comparable to the discontinued Index, then the Calculation
Agent shall determine each subsequent Closing Index Level to be used in
computing the Maturity Payment Amount or the Redemption Price, as applicable, by
reference to the Closing Index Level of such Successor Index on the applicable
date.
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(b) Upon any selection by the Calculation Agent of a Successor Index, the
Company shall promptly give notice to the holders of the Securities.
(c) If a Publisher discontinues publication of an Index and the Calculation
Agent determines that no Successor Index is available at such time, or if a
Publisher (or the publisher of any Successor Index) fails to calculate and
publish a Closing Index Level for the Index (or a Successor Index) on any date
when it would ordinarily do so in accordance with its customary practice, the
Calculation Agent will determine the Closing Index Level to be used for purposes
of computing the Maturity Payment Amount or the Redemption Price, as applicable.
In such circumstances, the Closing Index Level will be computed by the
Calculation Agent in accordance with the formula for and method of calculating
the relevant Index (or any Successor Index) last in effect prior to such
discontinuance or failure to publish, using the Closing Price (or, if trading in
any of the relevant securities has been materially suspended or materially
limited, its good faith estimate of the Closing Price that would have prevailed
but for such suspension or limitation) at the close of the principal trading
session on such date of each security most recently comprising the relevant
Index (or any Successor Index) on the Relevant Exchange on which such security
trades.
5. Alteration of Method of Calculation.
If at any time the method of calculating an Index, any Successor Index
or the Closing Index Level thereof on any particular day is changed in a
material respect, or if an Index or a Successor Index is in any other way
modified so that such index does not, in the opinion of the Calculation Agent,
fairly represent the level of such Index or such Successor Index had such
changes or modifications not been made, then, from and after such time, the
Calculation Agent shall, at the Close of Trading of the Relevant Exchanges on
which the securities comprising such Index or such Successor Index traded on any
date the Closing Index Level thereof is to be determined, make such calculations
and adjustments as, in the good faith judgment of the Calculation Agent, may be
necessary in order to arrive at a level of a stock index comparable to such
Index or such Successor Index, as the case may be, as if such changes or
modifications had not been made. The Calculation Agent shall calculate the
Closing Index Level on any particular day and the Maturity Payment Amount or
Redemption Price, as applicable, with reference to such Index or such Successor
Index, as adjusted.
Accordingly, if the method of calculating an Index or a Successor
Index is modified so that the level of such index is a fraction of what it would
have been if it had not been modified, then the Calculation Agent shall adjust
such index in order to arrive at a level of such Index or such Successor Index
as if it had not been modified.
6. Definitions.
Set forth below are the terms used in the Agreement and in this Annex
A.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"AMEX" shall mean the American Stock Exchange LLC.
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"Business Day", notwithstanding any provision in the Indenture, shall
mean any day that is not a Saturday, a Sunday or a day on which the NYSE, Nasdaq
or AMEX is not open for trading or banking institutions or trust companies in
the City of New York are authorized or obligated by law or executive order to
close.
"Calculation Agent" shall mean the person that has entered into an
agreement with the Company providing for, among other things, the determination
of the Maturity Payment Amount and the Redemption Price, which term shall,
unless the context otherwise requires, include its successors and assigns. The
initial Calculation Agent shall be ▇▇▇▇▇▇ Brothers Inc.
"Close of Trading" shall mean, in respect of any Relevant Exchange,
the scheduled weekday closing time on a day on which the Relevant Exchange is
scheduled to be open for trading for its respective regular trading session,
without regard to after hours or any other trading outside of the regular
trading session hours.
"Closing Index Level" shall mean, with respect to any day, (i) in the
case of the S&P 100 Index or any Successor Index, the closing level of the S&P
100 Index or such Successor Index, as the case may be, as reported by S&P or the
publisher of such Successor Index, as the case may be, on such day or as
determined by the Calculation Agent pursuant to this agreement, or (ii) in the
case of the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index, the closing level of the
▇▇▇▇▇▇▇ 2000 Index or such Successor Index, as the case may be, as reported by
▇▇▇▇▇▇▇ or the publisher of such Successor Index, as the case may be, on such
day or as determined by the Calculation Agent pursuant to this Agreement.
"Closing Price" shall mean, with respect to a security on any day, the
last reported sales price for that security on the Relevant Exchange at the
scheduled weekday closing time of the regular trading session of the Relevant
Exchange; provided, however, if such security is not listed or traded on a
bulletin board, then the "Closing Price" of the security shall be determined
using the average execution price per share that an affiliate of the Company
pays or receives upon the purchase or sale of the security used to hedge the
Company's obligations under the Securities.
"Company" shall have the meaning set forth in the preamble to this
Agreement.
"Early Redemption Determination Date" shall mean the first Scheduled
Trading Day (other than November 7, 2006 and the Valuation Date) on which the
Relative Performance is less than -70%.
"Final Relative Performance" shall equal the Relative Performance on
the Valuation Date.
"Indenture" shall have the meaning set forth in the preamble to this
Agreement.
"Index" shall have the meaning set forth in Section 1 of this Annex A.
"Initial S&P 100 Index Level" shall equal 644.19, the Closing Index
Level of the S&P 100 Index on November 7, 2006.
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"Initial ▇▇▇▇▇▇▇ 2000 Index Level" shall equal 764.39, the Closing
Index Level of the ▇▇▇▇▇▇▇ 2000 Index on November 7, 2006.
"Market Disruption Event", with respect to the S&P 100 Index or any
Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index shall mean any
of the following events has occurred on any day as determined by the Calculation
Agent in its sole discretion:
(1) A material suspension of or limitation imposed on trading relating to
the securities that then comprise 20% or more of the S&P 100 Index or any
Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index, by the
Relevant Exchanges on which those securities are traded, at any time during
the one-hour period that ends at the Close of Trading on such day, whether
by reason of movements in price exceeding limits permitted by that Relevant
Exchange or otherwise. Limitations on trading during significant market
fluctuations imposed pursuant to NYSE Rule 80B or any applicable rule or
regulation enacted or promulgated by the NYSE, or any other exchange,
quotation system or market, any other self regulatory organization or the
Commission of similar scope or as a replacement for Rule 80B may be
considered material.
(2) A material suspension of, or limitation imposed on, trading in futures
or options contracts relating to the S&P 100 Index or any Successor Index
or the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index by the primary exchange or
quotation system on which those futures or options contracts are traded, at
any time during the one-hour period that ends at the Close of Trading on
such day, whether by reason of movements in price exceeding limits
permitted by the exchanges or otherwise.
(3) Any event, other than an early closure, that disrupts or impairs the
ability of market participants in general to effect transactions in, or
obtain market values for, the securities that then comprise 20% or more of
the S&P 100 Index or any Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or any
Successor Index on the Relevant Exchanges on which those securities are
traded, at any time during the one-hour period that ends at the Close of
Trading on that day.
(4) Any event, other than an early closure, that disrupts or impairs the
ability of market participants in general to effect transactions in, or
obtain market values for, the futures or options contracts relating to the
S&P 100 Index or any Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or any
Successor Index on the primary exchange or quotation system on which those
futures or options contracts are traded at any time during the one-hour
period that ends at the Close of Trading on that day.
(5) The closure of the Relevant Exchanges on which securities that then
comprise 20% or more of the S&P 100 Index or any Successor Index or the
▇▇▇▇▇▇▇ 2000 Index or any Successor Index are traded or on which futures or
options contracts relating to the S&P 100 Index or any Successor Index or
the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index are traded prior to its
scheduled closing time unless the earlier closing time is announced by the
Relevant Exchanges at least one hour prior to the earlier of (i) the actual
closing time for the regular trading session on the Relevant Exchanges and
(ii) the submission
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deadline for orders to be entered into the Relevant Exchanges for execution
at the Close of Trading on that day.
For purposes of determining whether a Market Disruption Event has occurred, the
relevant percentage contribution of a security to the level of the S&P 100 Index
or any Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or any Successor Index will be
based on a comparison of (x) the portion of the level of the S&P 100 Index or
Successor Index or the ▇▇▇▇▇▇▇ 2000 Index or Successor Index attributable to
that security and (y) the overall level of the S&P 100 Index or Successor Index
or the ▇▇▇▇▇▇▇ 2000 Index or Successor Index, in each case immediately before
the occurrence of the Market Disruption Event.
"Maturity Payment Amount" shall have the meaning set forth in Section
2 of this Annex A.
"Nasdaq" shall mean The Nasdaq Stock Market, Inc.
"NYSE" shall mean The New York Stock Exchange, Inc.
"Present Value" of $1,000, as determined by the Calculation Agent
pursuant to the Calculation Agency Agreement, shall be the present value of
$1,000 on the Valuation Date calculated as of the first Scheduled Trading Day
after the Early Redemption Determination Date, computed using a discount rate
equal to the USD LIBOR in effect on the first Scheduled Trading Day after the
Early Redemption Determination Date with a designated maturity that corresponds
most closely to the period from, and including, such Scheduled Trading Day to,
but excluding, the Valuation Date.
"Publisher" shall have the meaning set forth in Section 1 of this
Annex A.
"Redemption Date" shall mean the date that is five Business Days after
the Early Redemption Determination Date.
"Redemption Index Level" shall mean, (i) in the case of the S&P 100
Index or any Successor Index, the closing level of the S&P 100 Index or such
Successor Index, as the case may be, as reported by S&P or the publisher of such
Successor Index, as the case may be, on the first Scheduled Trading Day after
the Early Redemption Determination Date or as determined by the Calculation
Agent pursuant to the Calculation Agency Agreement, or (ii) in the case of the
▇▇▇▇▇▇▇ 2000 Index or any Successor Index, the closing level of the ▇▇▇▇▇▇▇ 2000
Index or such Successor Index, as the case may be, as reported by ▇▇▇▇▇▇▇ or the
publisher of such Successor Index, as the case may be, on the first Scheduled
Trading Day after the Early Redemption Determination Date or as determined by
the Calculation Agent pursuant to the Calculation Agency Agreement.
"Redemption Price" shall have the meaning set forth in Section 3 of
this Annex A.
"Redemption Relative Performance" shall equal the following:
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Redemption Index Level Redemption Index Level
of S&P 100 Index of ▇▇▇▇▇▇▇ 2000 Index
---------------------- - -------------------------- + 1.3%
Initial S&P 100 Index Initial ▇▇▇▇▇▇▇ 2000 Index
Level Level
"Relative Performance" on any Scheduled Trading Day shall equal the
following:
Closing Index Level of Closing Index Level of
S&P 100 Index ▇▇▇▇▇▇▇ 2000 Index
---------------------- - -------------------------- + 1.3%
Initial S&P 100 Index Initial ▇▇▇▇▇▇▇ 2000 Index
Level Level
"Relevant Exchange" shall mean, for any security (or any combination
thereof then underlying the S&P 100 Index or any Successor Index or the ▇▇▇▇▇▇▇
2000 Index or any Successor Index), the primary exchange, quotation system
(which includes bulletin board services) or other market of trading for such
security.
"▇▇▇▇▇▇▇" shall have the meaning set forth in Section 1 of this Annex
A.
"▇▇▇▇▇▇▇ 2000 Index" shall have the meaning set forth in Section 1 of
this Annex A.
"Scheduled Trading Day" shall mean any day on which the New York Stock
Exchange, the American Stock and Options Exchange, the NASDAQ Global Select
Market, the NASDAQ Global Market, the Chicago Mercantile Exchange and the
Chicago Board Options Exchange are scheduled to be open for trading for their
respective regular trading sessions.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"S&P" shall have the meaning set forth in Section 1 of this Annex A.
"S&P 100 Index" shall have the meaning set forth in Section 1 of this
Annex A.
"Stated Maturity Date" shall mean November 11, 2007 (or if November
11, 2007 is not a Business Day, on the next Business Day); provided, that if the
Valuation Date is postponed, the Stated Maturity Date shall be the third
Business Day following the date that the Final Relative Performance on the
postponed Valuation Date is determined.
"Successor Index" shall have the meaning set forth in Section 4(a) of
this Annex A.
"Trustee" shall have the meaning set forth in the preamble to this
Agreement.
"Valuation Date" shall mean November 7, 2007; provided, that if a
Market Disruption Event occurs on such day or if such day is not a Scheduled
Trading Day, then the Valuation Date shall be the next following Scheduled
Trading Day on which no Market Disruption Event occurs; provided, however, if a
Market Disruption Event occurs on each of the
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eight Scheduled Trading Days following the originally scheduled Valuation Date,
then (a) that eighth Scheduled Trading Day shall be deemed the Valuation Date
and (b) the Calculation Agent shall determine the Final Relative Performance
based upon its good faith estimate of the level of the Index on that eighth
Scheduled Trading Day.
