Exhibit 4.01
CALCULATION AGENCY AGREEMENT
AGREEMENT, dated as of July 1, 1999, between Xxxxxx Brothers
Holdings Inc. (the "Company") and Xxxxxx Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of up to
$39,274,000 aggregate principal amount of 10 Uncommon Values(R) Index
BASES--Basket Adjusting Structured Equity Securities Notes Due 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:
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 Redemption Payment Amount due and
the Repurchase Payment Amount, the Calculation Agent shall determine such
Payment Amount and notify the Trustee of its determination. The Calculation
Agent shall also be responsible for (a) the determination of the Rollover
Closing Level of the 10 Uncommon Values Index for each Twelve-Month Period, (b)
determining if any adjustments to the 10 Uncommon Values Index and/or the
Multipliers should be made and (c) whether a Market Disruption Event has
occurred. The Calculation Agent shall notify the Trustee of any such adjustment
or if a Market Disruption Event has occurred. In addition, the Calculation Agent
shall provide information to the American Stock Exchange ("AMEX") that is
necessary for the AMEX's daily calculation and dissemination of the level of the
10 Uncommon Values Index if the AMEX is unable to obtain such information. Annex
A hereto sets forth the procedures the Calculation Agent will use to determine
the information described in this Section 1.
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:
(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.
(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.
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 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.
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/ Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxx
Vice President
XXXXXX BROTHERS INC.,
as Calculation Agent
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
Vice President
ANNEX A
1. 10 Uncommon Values Index.
Each year, the Investment Policy Committee of Xxxxxx Brothers Inc.,
with the assistance of its Equity Research Department, selects a portfolio of 10
common stocks that appear to be unusually attractive and not yet recognized as
such by the market (the "10 Uncommon Values").
The "10 Uncommon Values Index" represents an equal dollar-weighted
portfolio of the common stocks of the ten companies underlying the 10 Uncommon
Values for each Twelve-Month Period during the period beginning on the date of
announcement of the 10 Uncommon Values in 1999 and ending on the Stated
Maturity, as adjusted by certain extraordinary corporate events involving the
issuers of the Index Securities as described herein. The announcement of the ten
common stocks that shall make up the 10 Uncommon Values Index shall be made on
or about July 1 (such date of announcement, the "Announcement Day") of each year
during the term of the Securities. Except as set forth below, the Index
Securities in the 10 Uncommon Values Index shall remain constant for each
Twelve-Month Period.
2. Determination of the Payment Amount.
The Calculation Agent shall determine the Payment Amount payable for
each Security.
The amount payable at Stated Maturity for each $1,000 principal amount
of Securities (the "Maturity Payment Amount") shall equal the greater of (a)
$1,000 and (b) the Alternative Redemption Amount. The amount payable upon a
Redemption of each $1,000 principal amount of Securities (the "Redemption
Payment Amount") shall equal the greater of (a) $1,000 and (b) the Alternative
Redemption Amount. The amount payable upon a Repurchase of each $1,000 principal
amount of Securities (the "Repurchase Payment Amount") shall equal the
Alterative Redemption Amount.
The Index Level used to calculate the Alternative Redemption Amount
shall be determined by the Calculation Agent.
3. Determination of the Rollover Closing Level of the 10 Uncommon Values Index.
The Calculation Agent shall determine the Rollover Closing Level of the
10 Uncommon Values Index for each Twelve-Month Period after the Close of Trading
on the Trading Date prior to each Announcement Day (the "Rollover Determination
Date"). The "Rollover Closing Level" shall equal the sum of (a) the sum of the
products of the Closing Prices and the applicable Multipliers for each Index
Security and (b) the Cash Included in the 10 Uncommon Values Index at the
Closing of Trading, in each case on the Rollover Determination Date. The
Rollover Closing Level shall then be assumed to be used to buy, on the ensuing
Announcement Day, equal dollar amounts of the ten common stocks that shall
initially be the Index Securities for the next Twelve-Month Period at each Index
Security's Average Execution Price.
4. Multipliers.
The Multiplier relating to each Index Security is the number of shares
(including fractional shares, expressed as a decimal) of such Index Security
included in the 10 Uncommon Values Index. The Multipliers shall be determined by
the Calculation Agent and shall be based on each Index Security's Average
Execution Price. The "Multiplier" for an Index Security shall equal the number
of shares (or fraction of one share) of such Index Security multiplied by the
Average Execution Price for such Index Security so that the Index Security
initially accounts, on the Announcement Day, for 10% of the level of 10 Uncommon
Values Index on an equal dollar-weighted basis. The Multipliers with respect to
each Index Security shall remain constant for the Twelve-Month Period that such
Index Security is part of the 10 Uncommon Values Index unless adjusted for
certain extraordinary corporate events as described below. Each Multiplier shall
be rounded at the Calculation Agent's discretion.
5. Adjustments to the Multipliers and the 10 Uncommon Values Index.
Adjustments to a Multiplier and the 10 Uncommon Values Index shall be
made in the following circumstances:
(a) If an Index Security is subject to a stock split or reverse stock
split, or similar adjustment in the case of American Depositary Receipts
("ADRs"), then once the split has become effective, the Multiplier relating to
the Index Security shall be adjusted. The Multiplier shall be adjusted to equal
the product of the number of shares outstanding of the Index Security after the
split with respect to each share of such Index Security immediately prior to
effectiveness of the split and the prior Multiplier.
If the Index Security is an ADR, then the number of ADRs outstanding shall be
used.
(b) If an Index Security is subject to an extraordinary stock dividend
or extraordinary stock distribution that is given equally to all holders of
shares, then once the Index Security is trading ex-dividend, the Multiplier for
such Index Security shall be increased by the product of the number of shares of
such Index Security issued with respect to one share of such Index Security and
the prior Multiplier.
(c) If the issuer of an Index Security is being liquidated or dissolved
or is subject to a proceeding under any applicable bankruptcy, insolvency or
other similar law, such Index Security shall continue to be included in the 10
Uncommon Values Index so long as the primary exchange, trading system or market
is reporting a market price for the Index Security. If a market price, including
a price on a bulletin board service, is no longer available for an Index
Security, then the value of the Index Security shall equal zero for so long as
no market price is available, and no attempt shall be made to find a replacement
stock or increase the level of the 10 Uncommon Values Index to compensate for
the deletion of such Index Security.
(d) If the issuer of an Index Security, or if an Index Security is an
ADR, the foreign issuer of the underlying foreign share, has been subject to a
merger or consolidation and is not the surviving entity and holders of the Index
Security are entitled to receive cash, securities, other property or a
combination thereof in exchange for the Index Security, then the following shall
be included in the 10 Uncommon Values Index:
(i) To the extent cash is received, the 10 Uncommon Values
Index shall include the amount of the cash consideration at the time
holders are entitled to receive the cash consideration (the "M&A Cash
Component"), plus accrued interest. Interest shall accrue beginning the
first London Business Day after the day that holders receive the cash
consideration until the next Announcement Day (the "M&A Cash Component
Interest Accrual Period"). Interest shall accrue on the M&A Cash
Component at a rate equal to the London Interbank Offered Rate
("LIBOR") with a term corresponding to the M&A Cash Component Interest
Accrual Period.
(ii) To the extent that equity securities that are traded or
listed on an exchange, trading system or market are received, once the
exchange for the new securities has become effective, the former Index
Security shall be removed from the 10 Uncommon Values Index and the new
security shall be added to the 10 Uncommon Values Index as a new Index
Security. The Multiplier for the new Index Security shall equal the
product of the last value of the Multiplier of the original Index
Security and the number of securities of the new Index Security
exchanged with respect to one share of the original Index Security.
(iii) To the extent that equity securities that are not traded
or listed on an exchange, trading system or market or non-equity
securities or other property (other than cash) is received, the
Calculation Agent shall determine the "Fair Market Value" of the
securities or other property received based on the Average Execution
Price. The 10 Uncommon Values Index shall include an amount of cash
equal to the product of the Multiplier of the Index Security and the
Fair Market Value (the "M&A Sale Component"). The 10 Uncommon Values
Index shall also include accrued interest on the M&A Sale Component.
Interest shall accrue beginning the first London Business Day after the
day that an affiliate of Holdings sells the securities or other
property used to hedge Holdings' obligations under the Securities until
the next Announcement Day (the "M&A Sale Component Interest Accrual
Period"). Interest shall accrue at a rate equal to LIBOR with a term
corresponding to the M&A Sale Component Interest Accrual Period.
(e) If all of an Index Security of an issuer is converted into or
exchanged for the same or a different number of shares of any class or classes
of common stock other than the Index Security, whether by capital
reorganization, recapitalization or reclassification or otherwise, then, once
the conversion has become effective, the former Index Security shall be removed
from the 10 Uncommon Values Index and the new common stock shall be added to the
10 Uncommon Values Index as a new Index Security. The Multiplier for each new
Index Security shall equal the product of the last value of the Multiplier of
the original Index Security and the number of shares of the new Index Security
issued with respect to one share of the original Index Security.
(f) If the issuer of an Index Security issues to all of its
shareholders common stock or another equity security that is traded or listed on
an exchange, trading system or market of an issuer other than itself, then the
new common stock or other equity security shall be added to the 10 Uncommon
Values Index as a new Index Security. The multiplier for the new Index Security
shall equal the product of the last value of the Multiplier with respect to the
original Index Security and the number of shares of the new Index Security with
respect to one share of the original Index Security.
(g) If an ADR is no longer listed or admitted to trading on a United
States securities exchange or trading system registered under the Securities
Exchange Act or is no longer a NASDAQ NMS security, then the foreign share
underlying the ADR shall be deemed added to the 10 Uncommon Values Index as a
new Index Security. The initial Multiplier for that new Index Security shall
equal the last value of the Multiplier for the ADR multiplied by the number of
underlying foreign shares represented by a single ADR.
(h) If an Index Security is subject to an extraordinary dividend or an
extraordinary distribution, including upon liquidation or dissolution, of cash,
equity securities that are not traded or listed on an exchange, trading system
or market, non-equity securities or other property of any kind which is received
equally by all holders of such Index Security, then the 10 Uncommon Values Index
shall include the following:
(i) To the extent cash is entitled to be received, the 10
Uncommon Values Index shall include on each day after the time that the
Index Security trades ex-dividend until the date the cash consideration
is entitled to be received, the present value of the cash to be
received, discounted at a rate equal to LIBOR, with a term beginning
that day and ending on the date that the cash is entitled to be
received (the "PV Extraordinary Cash Component"). When the cash
consideration is received, the PV Extraordinary Cash Component will be
deleted from the 10 Uncommon Values Index and the 10 Uncommon Values
Index shall include the amount of the cash consideration (the
"Extraordinary Cash Component"), plus accrued interest. Interest shall
accrue on the Extraordinary Cash Component beginning the first London
Business Day after the day that holders are entitled to receive the
Extraordinary Cash Component until the next the next Announcement Day
(the "Extraordinary Cash Component Interest Accrual Period"). Interest
shall accrue at a rate equal to LIBOR with a term corresponding to the
Extraordinary Cash Component Interest Accrual Period.
(ii) To the extent that equity securities that are not traded
or listed on an exchange, trading system or market or non-equity
securities or other property (other than cash) is received, the
Calculation Agent shall determine the Fair Market Value of the
securities or other property received based on the Average Execution
Price and the 10 Uncommon Values Index shall include an amount of cash
equal to the product of the Multiplier of the Index Security and the
Fair Market Value (the "Extraordinary Sale Component"). The 10 Uncommon
Values Index shall also include accrued interest on the Extraordinary
Sale Component. Interest shall accrue beginning the first London
Business Day after the day that an affiliate of Holdings sells the
securities or other property used to hedge Holdings' obligations under
the Securities until the next Announcement Day (the "Extraordinary Sale
Component Interest Accrual Period"). Interest shall accrue at a rate
equal to LIBOR with a term corresponding to Extraordinary Sale
Component Interest Accrual Period.
The payment of an ordinary cash dividend by an issuer of an Index
Security from current income or retained earnings shall not result in an
adjustment to the Multiplier.
No adjustments of any Multiplier of an Index Security shall be required
unless the adjustment would require a change of at least .1% (.001) in the
Multiplier then in effect. The Multiplier resulting from any of the adjustments
specified above shall be rounded at the Calculation Agent's discretion.
6. Determination of Daily Level of the 10 Uncommon Values.
If the AMEX is unable to obtain certain information necessary for its
daily calculation and dissemination of the level of the 10 Uncommon Values
Index, the Calculation Agent shall provide the necessary information as follows
below.
In order to determine the value of an Index Security that is listed on
a non-United States exchange, trading system or market (the "Foreign Value"),
the Calculation Agent shall, once per Trading Day, value the Index Security
using the most recent sales price of such Index Security available from the
primary exchange, trading system or market in the Index Security's home market,
quoted as of the Close of Trading.
In order to convert the Foreign Value into U.S. dollars, the
Calculation Agent shall use the Official X.X. Reuters Spot Closing Rate. If
there are several quotes for the Official X.X. Reuters Spot Closing Rate, the
first quoted rate starting at 11:00 A.M. shall be the rate used. If there is no
such Official X.X. Reuters Spot Closing Rate for a country's currency at 11:00
A.M., New York City time, the Foreign Value shall be determined using the last
available U.S. dollar cross-rate quote before 11:00 A.M., New York City time.
In order to determine the value of an Index Security that is listed or
quoted on a bulletin board service, the Calculation Agent shall use the average
of the midpoint of the bid and ask prices provided by three market makers in
that Index Security. The Calculation Agent shall obtain the bid and ask prices
promptly upon the opening of trading on that Trading Day at 9:30 A.M., New York
City time or at such other time as the Calculation Agent determines.
The Calculation Agent shall provide AMEX with the value of the M&A Cash
Component and the M&A Sale Component and/or the PV Extraordinary Cash Component,
the Extraordinary Cash Component and the Extraordinary Sale Component as soon as
such values are available. The Calculation Agent shall, once per Trading Day,
provide AMEX with the interest accrued on the Cash Included in the 10 Uncommon
Values Index.
7. Definitions.
Set forth below are some of the terms used in this Annex A to the
Calculation Agent Agreement.
"Alternative Redemption Amount" shall mean the product of (a)
the Issue Price divided by 117 and (b) the Index Level on the relevant Payment
Determination Date.
"AMEX" shall mean the American Stock Exchange.
"Average Closing Price" of an Index Security during the
Calculation Period shall equal the average of the Closing Prices of such Index
Security on the Calculation Days occurring during such Calculation Period.
"Average Execution Price" for a security or other property
shall mean the average execution price that an affiliate of the Company receives
or pays for such security or property, as the case may be, to hedge the
Company's obligations under the Securities.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which the NYSE 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 Index Level and the Payment Amount, which term shall,
unless the context otherwise requires, include its successors and assigns. The
initial Calculation Agent is Xxxxxx Brothers Inc.
"Calculation Day" with respect to an Index Security means any
Trading Day during the Calculation Period on which a Market Disruption Event has
not occurred.
"Calculation Period" means the period of 20 Trading Days
ending on the Calculation Period Ending Date.
"Calculation Period Ending Date" shall mean three Trading Days
prior to (a) for payment at Stated Maturity, July 6, 2004, (b) for payment upon
a Redemption, the Non-Delaying Event Redemption Date or (c) for a payment upon a
Repurchase, the Non-Delaying Event Repurchase Date.
"Cash Included in the 10 Uncommon Values Index" shall mean the
M&A Cash Component, the M&A Sale Component, the PV Extraordinary Cash Component,
the Extraordinary Cash Component, the Extraordinary Sale Component, and interest
accrued thereon as provided for herein.
"Close of Trading" shall mean 4:00 p.m., New York City time.
"Closing Price" means the following, determined by the
Calculation Agent based on information reasonably available to it:
(i) If the Index Security is listed on a United States
national securities exchange or trading system or is a NASDAQ National
Market System ("NASDAQ NMS") security, the last reported sale price at
the Close of Trading, regular way, on such day, on the primary
securities exchange registered under the Securities Exchange Act of
1934 on which such Index Security is listed or admitted to trading or
NASDAQ NMS, as the case may be.
(ii) If the Index Security is listed on a non-United States
securities exchange, trading system (other than a bulletin board) or
market, the last reported sale price at the Close of Trading, regular
way, on such day, on the primary exchange, trading system or market on
which such Index Security is listed or admitted to trading, as the case
may be. The Closing Price shall then be converted into U.S. dollars
using the Official X.X. Reuters Spot Closing Rate.
(iii) If the Index Security is not listed on a national
securities exchange or is not a NASDAQ NMS security, and is listed or
traded on a bulletin board, the Average Execution Price of the Index
Security. If such Index Security is listed or traded on a non-United
States bulletin board, the Closing Price will then be converted into
U.S. dollars using the Official X.X. Reuters Spot Closing Rate.
(iv) In the case of determining the Rollover Closing Level
only, if a Market Disruption Event has occurred on the Rollover
Determination Date for an Index Security, the Closing Price for such
Index Security shall initially be estimated as if the Rollover
Determination Date for such Index Security was the prior Trading Day
for such Index Security on which a Market Disruption Event did not
occur. Once the Market Disruption Event has ceased, the Closing Price
of such Index Security shall then be adjusted to equal the Average
Execution Price of the Index Security. The Rollover Closing Level and
the resulting Multipliers shall then be recalculated and adjusted
accordingly.
"Delaying Event" shall mean a Market Disruption Event for an
Index Security occurs on all Trading Days during the relevant Calculation
Period.
"Delaying Event Redemption Date" shall mean, if a Delaying
Event occurs during the Calculation Period for a Redemption, three Business Days
after the Payment Determination Date thereof.
"Delaying Event Repurchase Date" shall mean, if a Delaying
Event occurs during the Calculation Period for a Repurchase, three Business Days
after the Payment Determination Date thereof.
"Index Level", when used with respect to any Payment
Determination Date shall equal the sum of (a) the sum of the products of the
Average Closing Prices and the applicable Multipliers for each Index Security
for which a Delaying Event does not occur during related Calculation Period, (b)
if a Delaying Event occurs for an Index Security during the related Calculation
Period, the product of the Closing Price for such Index Security on the first
Trading day on which a Market Disruption Event does not occur for such Index
Security after the related Calculation Period Ending Date and the Multiplier for
such Index Securities and (c) any Cash Included in the 10 Uncommon Values Index
on such Calculation Period Ending Date.
"Index Securities" shall mean the securities included in the
10 Uncommon Values Index from time to time.
"Issue Price" shall mean $1,000.
"Market Disruption Event" with respect to an Index Security
means any of the following events as determined by the Calculation Agent:
(i) A suspension, absence or material limitation of trading of
such Index Security 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 Index Security is traded or, in the case of an
Index Security not listed or quoted in the United States, on the
primary exchange, trading system or market for such Index 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 an Index Security traded on a
bulletin board means a suspension, absence or material limitation of
trading of such Index 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 such Index Security, whether by reason of
movements in price exceeding levels permitted by an exchange, trading
system or market on which options contracts related to such Index
Security 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 such Index Security or in respect of options
contracts related to such Index Security, in each case traded on any
major U.S. exchange or trading system or in the case of Index
Securities of a non-U.S. issuer, 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 option contract on an
Index Security 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 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.
"Non-Delaying Event Redemption Date" shall mean the date set
forth in the Redemption Notice, which date shall not be less than 30 nor more
than 60 days after the date of the Redemption Notice.
"Non-Delaying Event Repurchase Date" shall mean the third
Business Day following the 20 Trading Days after the day which a Holder gives
notice to the Trustee of a Repurchase.
"NYSE" shall mean the New York Stock Exchange.
"Official X.X. Reuters Spot Closing Rates" shall mean the
closing spot rates published on Reuters page "WMRA" relevant for such Index
Security.
"Payment Amount" shall mean the Maturity Payment Amount, the
Redemption Payment Amount or the Repurchase Payment Amount, as the case may be.
"Payment Determination Date" shall mean the Calculation Period
Ending Date, unless a Delaying Event occurs with respect to such Payment
Determination Date, in which case the first Trading Day after the Calculation
Period Ending Date on which the Closing Prices for all Index Securities that
have been subject to a Delaying Event have been determined.
"Redemption" shall mean the option of the Company to redeem,
at any time after July 7, 2002, in whole or from time to time in part, the
Securities.
"Redemption Notice" shall mean the notice of Redemption mailed
to the Holders.
"Repurchase" shall mean the option, after July 7, 2001, of a
beneficial holder to elect to require the Company to repurchase, in whole or
from time to time in part, such holder's Securities.
"Stated Maturity" shall mean July 6, 2004, or if a Delaying
Event occurs, three Business Days after the Payment Determination Date on which
the Index Level has been determined.
"Trading Day" shall mean a day on which trading generally is
conducted on the NYSE, AMEX and NASDAQ NMS and in the over-the-counter market
for equity securities as determined by the Calculation Agent.
"Twelve-Month Period" shall mean the period beginning on an
Announcement Day and ending at the Close of Trading on the Trading Day prior to
the next Announcement Day.
