EXHIBIT 4.05
INTEREST CALCULATION AGENT AGREEMENT
BETWEEN
SOUTHWEST GAS CORPORATION
AND
XXXXXX TRUST AND SAVINGS BANK
THIS AGREEMENT is made as of December 30, 1996, between SOUTHWEST GAS
CORPORATION (the "Company"), and XXXXXX TRUST AND SAVINGS BANK (the
"Calculation Agent").
WHEREAS, the Company proposes to issue and sell on a continuous basis
its Medium-Term Notes, Series A (the "Notes") pursuant to the terms and
conditions of a Distribution Agreement (the "Distribution Agreement") dated
December 30, 1996 by and among the Company and Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, PaineWebber Incorporated and
Xxxx Xxxxxx Xxxxxxxx Inc. (the "Agents") in such aggregate principal amount
as from time to time may be authorized by the Company;
WHEREAS, the Company desires the Calculation Agent to perform certain
interest calculation services with respect to the Company's Floating Rate Notes
bearing interest at a floating rate (the "Floating Rate Notes"); and
WHEREAS, undefined capitalized terms used in this Agreement have the
meanings given in the Distribution Agreement and Exhibits thereto.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
SECTION 1. Appointment of Calculation Agent. The Company
appoints Xxxxxx Trust and Savings Bank as Calculation Agent of the Company
with respect to any Floating Rate Notes issued by the Company. The Calculation
Agent hereby accepts its obligation for the purpose of calculating the amount
of interest on the Floating Rate Notes, upon the terms and conditions set
forth herein. The calculation of the base rates for the interest rates
applicable to the Notes shall be determined by reference to LIBOR, the
Commercial Paper Rate, the Treasury Rate, the CD Rate, the Prime Rate, the
X.X. Xxxxx Rate, the CMT Rate, the Federal Funds Rate, the 11th District Cost
of Funds Rate (the "Base Rates") or such other base rates as may be provided
and described in the Prospectus Supplement.
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SECTION 2. Calculation of Base Rates.
(a) The Calculation Agent shall calculate the amount of interest
on the Floating Rate Notes and communicate the same to the Company and Xxxxxx
Trust and Savings Bank (the "Trustee") upon the terms and conditions contained
herein. The Company shall cause the Trustee to provide the Calculation Agent
with not less than two (2) but not more than seven (7) business days notice of
the date on which a particular calculation is to be made by the Calculation
Agent (the "Calculation Date"), and the Calculation Agent shall notify the
Trustee of such calculation on such Calculation Date and shall confirm such
calculation in writing within twenty-four (24) hours after so notifying the
Trustee.
(b) In no event shall the interest rate be less than the
minimum interest rate, if any, or higher than the maximum interest rate, if
any, designated in the applicable pricing supplement.
(c) The Calculation Agent shall calculate the amount of interest
payable on each Floating Rate Note in the manner and at the times set forth in
such Note.
(d) As soon as practicable after each Calculation Date, the
Calculation Agent will cause to be forwarded to the Company and the Trustee
information regarding the interest rates, the interest periods, the amount of
interest for each interest period and the relevant Interest Payment Dates.
The Calculation Agent will, upon the request of any holder of any Floating Rate
Note, provide the interest rate which will become effective as a result of a
determination made with respect to the most recent Interest Determination Date
with respect to such Note.
SECTION 3. Status of Calculation Agent. Any acts taken by the
Calculation Agent under this Agreement or in connection with any Floating Rate
Notes, including, specifically, without limitation, the calculation of any
interest rate for a Floating Rate Note, shall be deemed to have been taken by
the Calculation Agent solely in its capacity as agent of the Company and shall
not create or imply any obligation to, or any agency or trust relationship
with any of the owners or holders of the Floating Rate Notes.
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SECTION 4. 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,
disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered by it under this Agreement, including
reasonable counsel fees.
SECTION 5. Rights and Liabilities of Calculation Agent. The
Calculation Agent shall incur no liability for, or in respect of, any action
taken or omitted to be taken, or suffered by it in reliance upon any Floating
Rate Note, written instruction, notice, request, direction, certificate,
consent, report, affidavit, statement, order or other instrument, paper,
document or communication reasonably believed by it in good faith to be
genuine. Any order, certificate, affidavit, instruction, notice, request,
direction, statement or other comments from the Company or given by it and
sent, delivered or 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 comment is in writing and signed by an officer of
the Company. The Calculation Agent may consult with counsel satisfactory to
it and the advice 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 advice of such counsel.
Neither the Calculation Agent nor its officers or employees shall be liable
to the Company or any other party for any act or omission hereunder, except
in the case of gross negligence or willful misconduct and, in any event, to
the extent permitted by law, it is agreed that the liability of the
Calculation Agent and its officers and employees hereunder for damages,
regardless of the form of the action, shall not exceed the fees payable to the
Calculation Agent hereunder for a period of six months, and that this shall be
the exclusive remedy for any damages hereunder. No party shall be liable for
any default resulting from force majeure, which shall be deemed to include any
circumstance beyond the reasonable control of the party affected. No action,
regardless of form, arising out of or pertaining to the role of the Calculation
Agent hereunder may be brought by any party hereto or beneficiary hereof more
than twelve (12) months after the cause of action has accrued.
SECTION 6. Duties of Calculation Agent. The Calculation Agent
shall be obligated only to perform such duties as are specifically set forth
herein and no other duties or obligations on the part of the Calculation Agent
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in its capacity as such, shall be implied by this Agreement. Neither the
Calculation Agent nor its officers and directors guarantee the correctness or
completeness of any data or other information furnished hereunder.
SECTION 7. Termination, Resignation or Removal of Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by
giving written notice to the Company and the Trustee specifying the date on
which its desired resignation shall become effective, provided that such notice
shall be given no less than ninety (90) days prior to said effective date
unless the Calculation Agent, Company and Trustee otherwise agree in writing.
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; provided that such effective date of the Company's
termination shall be at least twenty (20) days after the date of notice and
shall not be less than forty-five (45) days before the Interest Payment Date
on any Floating Rate Note that shall be the final Interest Payment Date with
respect to which such Calculation Agent shall serve as the Calculation Agent.
No termination by either the Calculation Agent or the Company shall become
effective prior to the date of the appointment by the Company of a successor
Calculation Agent and the acceptance of such appointment by such successor
Calculation Agent as provided in Section 8 hereof. 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 incurred in
connection with the services rendered by it hereunder, as provided by
Section 4 hereof. The provisions of Sections 9 and 13 hereof shall remain
in effect following termination by either party.
SECTION 8. Appointment of Successor Calculation Agent. In the
event of the termination of this Agreement pursuant to Section 7 hereof, the
Company shall promptly appoint a successor Calculation Agent. Any successor
Calculation Agent appointed by the Company and approved by the Trustee
following termination of this Agreement pursuant to the provisions of
Section 7 hereof, shall execute and deliver to the original Calculation Agent,
the Company and the Trustee an instrument accepting such appointment.
Thereupon, such successor Calculation Agent shall, without any further act,
deed or conveyance, become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of the Calculation Agent and with
like effect as if originally named as Calculation Agent hereunder, and the
original Calculation Agent shall thereupon be obligated to transfer and
deliver such relevant records or copies thereof maintained by the Calculation
Agent in connection with the performance of its obligations hereunder.
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SECTION 9. Indemnification. The Company shall indemnify and
hold harmless the Calculation Agent, its 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 from actions in any capacity hereunder, except actions,
claims, damages, liabilities, losses and expenses caused by the gross
negligence or willful misconduct of the Calculation Agent, its officers or
employees.
SECTION 10. Merger, Consolidation or Sale of Business by the
Calculation Agent. Any corporation into which the Calculation Agent may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Calculation Agent may be a party, or any
corporation to which the Calculation Agent may sell or otherwise transfer all
or substantially all of its assets and business, shall, to the extent permitted
by applicable law, become the Calculation Agent under this Agreement without
the execution or filing of any paper or any further act by the parties hereto.
Notice in writing of any such merger, consolidation or sale shall be given to
each of the Company and Trustee.
SECTION 11. Notices. Any notice or other communication required
to be given hereunder shall be delivered in person, sent by letter, telecopy or
telex or communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within twenty-four (24) hours to
the addresses given below or such other address as the party to receive such
notice may have previously specified):
To the Company:
Southwest Gas Corporation
0000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Senior Vice President,
Chief Financial Officer
and Corporate Secretary
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To the Trustee:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
To the Calculation Agent:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Indenture Trust Administration
Any notice hereunder given by letter, telecopy or telex 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 12. 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. The terms "successors" and "assigns" shall not
include any purchasers of any Floating Rate Notes merely because of such
purchases.
SECTION 13 Governing Law. This Agreement shall be governed by
and construed in accordance with the law of the State of New York applicable to
agreements entered into and performed in such State.
SECTION 14. Severability. If any provision of this Agreement
shall be held or deemed to be invalid, inoperative or unenforceable as applied
in any particular case because it conflicts with any provision of any
constitution, statute, rule or public policy applicable hereto, such
circumstance shall not have the effect of rendering any other provision herein
invalid, inoperative or unenforceable.
SECTION 15. Counterparts. This Agreement may be executed in
several counterparts or with counterpart signature pages, each of which shall
be regarded as an original and all of which shall constitute one and the same
document.
SECTION 16. Amendments. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been entered into the day
and year first above written.
SOUTHWEST GAS CORPORATION
/s/ XXXXXXX X. XXXX
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President/Treasurer
XXXXXX TRUST AND SAVINGS BANK
/s/ XXXXXX X. XXXXXXX
-----------------------------
Authorized Officer
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