CALCULATION AGENT AGREEMENT
CALCULATION AGENT AGREEMENT dated as of November 25, 1997 (the
"Agreement"), by and between BRAVO Trust Series 1997-1, a trust established
under the laws of the state of Delaware pursuant to the declaration of trust and
trust agreement dated November 25, 1997 (the "Trust Agreement") with The Bank of
New York, a New York banking corporation, as trustee (the "Trustee"), and Xxxxxx
Brothers Inc. ("Xxxxxx" or the "Calculation Agent"). The Trust will issue
$500,000,000 aggregate amount of trust certificates (the "Trust Certificates")
on the date hereof, which will represent two classes of undivided interests in
the Trust. The Trust Certificates are being offered by means of an Offering
Circular (the "Offering Circular") dated November 25, 1997 and an Offering
Circular Supplement (the "Supplement") dated November 25, 1997. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Trust Agreement, the Offering Circular or the Supplement.
WITNESSETH:
WHEREAS, the Trust desires to appoint Xxxxxx to render certain
services to the Trust as Calculation Agent in the manner and on the terms
hereinafter set forth and Xxxxxx desires to serve as such Calculation Agent for
the Trust:
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, Xxxxxx and the Trust hereby agree as follows:
Section 1. DUTIES OF THE CALCULATION AGENT. The Trust hereby
appoints Xxxxxx to perform the calculation of LIBOR as set forth in the
Supplement and perform such other services as are set forth in the Trust
Agreement. Xxxxxx hereby accepts such appointment and agrees to render such
services and to assume the obligations of the Calculation Agent under the terms
and conditions herein set forth.
Section 2. COMPENSATION OF THE CALCULATION AGENT. The Calculation
Agent shall perform its duties hereunder without compensation (other than any
compensation it may receive for acting as the Initial Purchaser of or as a
Remarketing Agent for the Trust Certificates).
Section 3. LIMITATION OF LIABILITY OF THE CALCULATION AGENT . The
Calculation Agent shall not be liable in contract, tort or otherwise to the
Trust for any losses, costs or damages arising out of its performance of its
obligations and duties hereunder except for willful misconduct, bad faith or
gross negligence in the performance of its duties, or by reason of reckless
disregard of the Calculation Agent's obligations and duties hereunder.
Section 4. INDEMNIFICATION OF THE CALCULATION AGENT. The Trust
shall indemnify and hold harmless Xxxxxx as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of Xxxxxx'x performance of
the services and assumption of the obligations of the Calculation
Agent under the terms and conditions herein set forth; and
(2) against any and all expense whatsoever (including the
reasonable fees and disbursements of counsel chosen by Xxxxxx)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any of the foregoing, to the extent that any
such expense is not paid under (1) above.
All payments hereunder shall be subordinated to the prior payment
in full of all amounts then due and owing with respect to the Class A Trust
Certificates.
Section 5. TERM OF THIS AGREEMENT. This Agreement, which shall be
a binding agreement as of the date hereof, shall terminate upon the earliest to
occur of (a) the termination of the Trust Agreement, (b) 30 days after the
replacement of Xxxxxx pursuant to Section 9 hereof, or (c) termination of the
Remarketing Agreement between the Trust and Xxxxxx.
Section 6. AMENDMENTS. No amendment or waiver of any provision of
this Agreement nor consent to any departure herefrom by any party hereto shall
in any event be effective unless (i) the Rating Agencies shall have notified the
Market Agent that such amendment or waiver shall not cause the rating of the
Trust Certificates to be reduced, suspended or withdrawn and (ii) the same shall
be in writing and signed by the party against which enforcement of such
amendment or waiver or consent is sought, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
Section 7. NOTICE ADDRESSES. Except as otherwise expressly
provided herein, all notices and other communications provided for hereunder
shall be deemed to have been duly given if sent by facsimile transmission (a) if
to the Calculation Agent, to the number set forth below and (b) if to the
Trustee or to the Trust, as set forth in the Trust Agreement:
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If to Xxxxxx: Xxxxxx Brothers Inc.
3 World Financial Center, 00xx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Paper Product Management
Facsimile: (000) 000-0000
Telephone confirmation no.: (000) 000-0000
Section 8. ASSIGNMENT. This Agreement may not be assigned by the
Calculation Agent without the prior consent of the Trustee.
Section 9. REPLACEMENT OF XXXXXX. Upon the resignation of Xxxxxx
hereunder, the Trust shall terminate the employment of Xxxxxx as Calculation
Agent hereunder and appoint the Trustee or its designee as successor Calculation
Agent. The Trustee may delegate or subcontract its duties as successor
Calculation Agent hereunder and shall not be responsible to the Trust for any
misconduct or negligence on the part of any such delegate or subcontractor so
long as such delegate or subcontractor was chosen with due care.
Section 10. NO PETITION. Xxxxxx hereby covenants and agrees that
it will not at any time institute against the Trust, or join in any institution
against the Trust of, any bankruptcy proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to this Agreement.
Section 11. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such state (without reference to choice of law doctrine).
Section 12. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Calculation Agent Agreement as of the day and year first above written.
XXXXXX BROTHERS INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BRAVO TRUST SERIES 1997-1
By: THE BANK OF NEW YORK
not in its individual capacity but
solely as Trustee under the Trust
Agreement
By: /s/ Xxxxxx X. Laser
-----------------------------
Name: XXXXXX X. LASER
Title: Assistant Vice President
