DOCID053137-0195-08316-NY01.2072553.2
EXHIBIT 4.01
CALCULATION AGENCY AGREEMENT
AGREEMENT, dated as of April 26,2001, between Xxxxxx Brothers
Holdings Inc. (the "Company")and Xxxxxx Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of $5,500,000
aggregate principal amount of S&P 500(R) Index SUNS(sm), Stock Upside Note
Securities(sm) Due April 26, 2004 (the "Securities")*;
WHEREAS, the Securities will be issued under an Indenture
Agreement 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:
* "Standard & Poor's(R)," "S&P(R)," "S&P 500(R)," "Standard & Poor's
500," and "500" are trademarks of XxXxxx-Xxxx, Inc. and have been
licensed for use by Xxxxxx Brothers Holdings Inc. The notes, based on
the performance of the S&P 500(R) Index, are not sponsored, endorsed,
sold or promoted by Standard & Poor's and Standard & Poor's makes no
representation regarding the advisability of investing in the notes.
Stock Upside Note Securities and SUNS are service marks of Xxxxxx
Brothers Inc.
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1. Appointment of Agent. The Company hereby appoints Xxxxxx Brothers Inc.
as Calculation Agent and Xxxxxx 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 at Stated
Maturity of the Securities, the Calculation Agent shall determine such Maturity
Payment Amount and notify the Trustee of its determination. The Calculation
Agent shall also be responsible for (a) the determination of the Alternative
Redemption Amount, (b) whether adjustments to the Final Index Level should be
made, (c) the Successor Index if publication of the Index is discontinued and
(d) whether a Market Disruption Event has occurred. The Calculation Agent shall
notify the Trustee of any such adjustment 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:
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(i) 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;
(ii) 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 who 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;
(iii) the Calculation Agent shall be obliged to perform only such duties as
are set out specifically herein and any duties necessarily incidental
thereto;
(iv) 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
(v) the Calculation Agent shall incur no liability hereunder except for
loss sustained by reason of its gross negligence or wilful 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 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.
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(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
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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.
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 wilful 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 New York Business Days), (a) in the case of the Company,
to it at Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (facsimile:
(000) 000-0000) (telephone: (000) 000-0000), Attention: Legal Counsel, (b) in
the case of the Calculation Agent, to it at Three World Financial Center, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (facsimile: (000) 000-0000)
(telephone: (000) 000-0000), Attention: Equity Derivatives Trading and (c) in
the case of the Trustee, to it at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (facsimile: (000) 000-0000) (telephone: (000) 000-0000), Attention:
Corporate Trust Department 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
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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 continued 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.
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IN WITNESS WHEREOF, this Calculation Agency 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
XXXXXX BROTHERS INC.,
as Calculation Agent
By:/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
ANNEX A
1. The Index.
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The Index is the S&P 500(R) Index, as calculated by S&P (the"Index").
2. Determination of the Maturity Payment Amount.
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The Calculation Agent shall determine the amount payable at
Stated Maturity for each $1,000 principal amount of Securities (the "Maturity
Payment Amount"). The Maturity Payment Amount shall equal the greater of (a)
$1,000 and (b) the Alternative Redemption Amount.
3. Discontinuance of the Index.
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(a) If S&P discontinues publication of the Index and S&P or another entity
publishes a successor or substitute index (the "Successor Index") that the
Calculation Agent determines, in its sole discretion, to be comparable to the
discontinued Index, then the Calculation Agent shall calculate the Maturity
Payment Amount pursuant to Section 2 hereof by reference to the index level of
such Successor Index at the Close of Trading on the NYSE, AMEX, Nasdaq or the
relevant exchange or market for the Successor Index on the date that the Final
Index Level is to be determined.
(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 S&P discontinues publication of the Index prior to, and such
discontinuance is continuing on, the date that the Final Index Level is to be
determined and the Calculation Agent determines that no Successor Index is
available at such time, then, on such date, the Calculation Agent shall
determine the Final Index Level to be used in computing the Alternative
Redemption Amount. The Final Index Level shall be computed by the Calculation
Agent in accordance with the formula for and method of calculating the Index
last in effect prior to such discontinuance, using the Closing Level (or, if
trading in the relevant securities has been materially suspended or materially
limited, its good faith estimate of the Closing Level 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 Index on the
primary organized U.S. exchange or trading system.
4. Alteration of Method of Calculation.
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If at any time the method of calculating the Index or a
Successor Index, or the Final Index Level thereof, is changed in a material
respect, or if the 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 value of the Index or such Successor Index had such changes or
modifications not been made, then, from and after such time, the Calculation
Agent will, at the Close of Trading in New York City on the date that the Final
Index Level is to be determined, make such calculations and adjustments as, in
the good faith judgment of the Calculation Agent,
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may be necessary in order to arrive at a level of a stock index comparable to
the Index or such Successor Index, as the case may be, as if such changes or
modifications had not been made, and calculate the Final Index Level and the
Alternative Redemption Amount with reference to the Index or such Successor
Index, as adjusted. Accordingly, if the method of calculating the 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 (for example, due to a split
in the index), then the Calculation Agent shall adjust such index in order to
arrive at a level of the Index or such Successor Index as if it had not been
modified (for example, if such split had not occurred).
5. Definitions.
Set forth below are the terms used in this Annex A to the
Calculation Agency Agreement.
"AMEX" shall mean the American Stock Exchange.
"Alternative Redemption Amount" shall mean, with respect to
each $1,000 principal amount of Securities, the product of:
(i) $1,000; and
Final Index Initial Index
(ii) 1 + (Participation Rate x Level Level ).
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Initial Index Level
"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 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, which term shall, unless the
context otherwise requires, include its successors and assigns. The initial
Calculation Agent shall be Xxxxxx Brothers Inc.
"Calculation Day" shall mean five Business Days prior to April
26, 2004.
"Close of Trading" shall mean 4:00 p.m., New York City time.
"Closing Level" shall mean the last reported level of the
Index or the Successor Index, as the case may be, at 4:00 p.m., New York City
time, as reported by S&P or the publisher of the Successor Index, as the case
may be.
"Final Index Level" shall equal the Closing Level of the Index
or a Successor Index, as the case may be, on the Payment Determination Date.
"Initial Index Level" shall equal 1253.69.
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"Market Disruption Event", on any day, shall mean any of the
following events as determined by the Calculation Agent:
(i) A suspension, absence or material limitation of trading in
20% of more of the underlying stocks which then comprise the Index or
any Successor Index, as the case may be, has occurred on that day, in
each case, for more than two hours of trading or during the one-half
hour period preceding the Close of Trading on the primary organized
U.S. exchange or trading system on which such stocks are traded or, in
the case of a common stock not listed or quoted in the United States,
on the primary exchange, trading system or market for that security.
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, any other exchange, trading system or
market, any other self regulatory organization or the Securities and
Exchange Commission of similar scope or as a replacement for Rule 80B,
may be considered material. Notwithstanding the first sentence of this
paragraph, a Market Disruption Event for a security traded on a
bulletin board means a suspension, absence or material limitation of
trading of that security for more than two hours or during the one hour
period preceding 4:00 p.m., New York City time.
(ii) A suspension, absence or material limitation has occurred
on that day, in each case, for more than two hours of trading or during
the one-half hour period preceding the Close of Trading in options
contracts related to the Index or any Successor Index, as the case may
be, whether by reason of movements in price exceeding levels permitted
by an exchange, trading system or market on which such options
contracts are traded or otherwise.
(iii) Information is unavailable on that date, through a
recognized system of public dissemination of transaction information,
for more than two hours of trading or during the one-half hour period
preceding the Close of Trading, of accurate price, volume or related
information in respect of 20% or more of the underlying stocks which
then comprise the Index or any Successor Index, as the case may be, or
in respect of options contracts related to the Index or any Successor
Index, as the case may be, in each case traded on any major U.S.
exchange or trading system or in the case of securities of a non-U.S.
issuer, traded on the primary non-U.S. exchange, trading system or
market.
For purposes of determining whether a Market Disruption Event has
occurred:
(i) a limitation on the hours or number of days of trading
shall not constitute a Market Disruption Event if it results from an
announced change in the regular business hours of the relevant
exchange, trading system or market;
(ii) any suspension in trading in an options contract on the
Index or any Successor Index, as the case may be, by a major securities
exchange, trading system or market by reason of (a) a price change
violating limits set by such securities market, (b) an imbalance of
orders relating to those contracts, or (c) a disparity in bid and ask
quotes relating to those contracts, shall constitute a
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Market Disruption Event notwithstanding that the suspension or
material limitation is less than two hours;
(iii) a suspension or material limitation on an exchange,
trading system or in a market shall include a suspension or material
limitation of trading by one class of investors provided that the
suspension continues for more than two hours of trading or during the
last one-half hour period preceding the Close of Trading on the
relevant exchange, trading system or market but shall not include any
time when the relevant exchange, trading system or market is closed for
trading as part of that exchange's, trading system's or market's
regularly scheduled business hours; and
(iv) "Trading systems" include bulletin board services.
"Nasdaq" shall mean The Nasdaq Stock Market, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Participation Rate" shall equal 0.58.
"Payment Determination Date" shall mean the Calculation Day;
unless a Market Disruption Event occurs on the Calculation Day, in which case
the first Business Day after the Calculation Day on which a Market Disruption
Event does not occur.
"S&P" shall mean Standard & Poor's, a division of XxXxxx-Xxxx,
Inc.
"Stated Maturity" shall mean April 26, 2004, or (i) if April
26, 2004 is not a Business Day, the next Business Day, or (ii) if a Market
Disruption Event occurs on the Calculation Day, five Business Days after the
Payment Determination Date on which the Final Index Level has been determined.
"Successor Index" shall have the meaning set forth in Section
3(a).
