EXHIBIT 4.3
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INTEREST CALCULATION
AGENCY AGREEMENT
BETWEEN
XXXXXX XXXXXX CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of April 15, 1999
TABLE OF CONTENTS
PAGE
SECTION 1. APPOINTMENT OF CALCULATION AGENT 1
SECTION 2. CALCULATION OF BASE RATES 1
SECTION 3. NEW BASE RATES 2
SECTION 4. FEES AND EXPENSES 2
SECTION 5. RIGHTS AND LIABILITIES OF CALCULATION AGENT 2
SECTION 6. RIGHT OF CALCULATION AGENT TO OWN FLOATING RATE NOTES 3
SECTION 7. DUTIES OF CALCULATION AGENT 3
SECTION 8. TERMINATION, RESIGNATION OR REMOVAL OF CALCULATION AGENT 3
SECTION 9. APPOINTMENT OF SUCCESSOR CALCULATION AGENT 3
SECTION 10. INDEMNIFICATION 3
SECTION 11. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY CALCULATION AGENT 4
SECTION 12. NOTICES 4
SECTION 13. BENEFIT OF AGREEMENT 4
SECTION 14. GOVERNING LAW 4
SECTION 15. AMENDMENTS 5
SECTION 16. COUNTERPARTS 5
[Medium-Term Notes, Series I]
INTEREST CALCULATION
AGENCY AGREEMENT
BETWEEN
XXXXXX XXXXXX CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
Dated as of April 15, 1999
XXXXXX XXXXXX CORPORATION, a Minnesota corporation (the "Issuer"), proposes
to issue and sell its Medium-Term Notes, Series I (the "Notes"), from time to
time under, and pursuant to, the terms of an Indenture, dated as of October 3,
1996, between the Issuer and The First National Bank of Chicago, as trustee (in
such capacity, the "Trustee") (the "Indenture"). All capitalized terms used
herein but not defined shall have the meanings as set forth in the Prospectus,
dated October 13, 1998, as supplemented by the Prospectus Supplement dated April
15, 1999, which is attached hereto as Exhibit A.
For the purpose of providing for an agent of the Issuer to (i) calculate
the base rates applicable to those Notes on which interest is to accrue at a
variable or floating rate ("Floating Rate Notes"), determined by reference to
the CD Rate, the Commercial Paper Rate, Federal Funds Rate, LIBOR, the Prime
Rate, the Treasury Rate, or the CMT Rate, (collectively, the "Base Rates") as
are specified and described in the form of the Floating Rate Notes, a copy of
which is attached hereto as Exhibit B, and (ii) determine the interest payable
with respect to the Floating Rate Notes, the Issuer and The First National Bank
of Chicago hereby agree as follows:
SECTION 1. APPOINTMENT OF CALCULATION AGENT. The Issuer hereby appoints
The First National Bank of Chicago as Calculation Agent (in such capacity, the
"Calculation Agent") of the Issuer with respect to any Floating Rate Notes to be
issued by the Issuer under and pursuant to the terms of the Indenture, and the
Calculation Agent hereby accepts its obligations as set forth in this Agreement
upon the terms and conditions set forth herein.
SECTION 2. CALCULATION OF BASE RATES. As soon as reasonably practical on
or after each Interest Determination Date set forth in a Floating Rate Note (but
on or before the applicable Calculation Date provided in such Note), the
Calculation Agent shall (i) determine the applicable Base Rate in accordance
with such Floating Rate Note and (ii) determine the amount of interest payable
on such Floating Rate Note on the applicable Interest Payment Date or maturity,
redemption or repayment date, as the case may be, and shall notify the Issuer,
the Trustee and the Paying Agent of such Base Rate and amount of interest so
payable. If at any time the Calculation Agent is not also acting as Trustee
under the Indenture, the Issuer will cause the
Trustee to give the Calculation Agent at least three Business Days notice of
each Interest Determination Date. The Calculation Agent will, upon the request
of the holder of any Floating Rate Note, provide the interest rate then in
effect with respect to such Floating Rate Note and, if determined, the interest
rate with respect to such Floating Rate Note which will become effective on the
next Interest Reset Date.
In the event that the calculation of the applicable Base Rate requires the
Calculation Agent to select (i) leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in New York City (in connection with determining
the CD Rate), (ii) leading dealers of commercial paper in New York City (in
connection with determining the Commercial Paper Rate), (iii) leading brokers of
U.S. dollar Federal Funds transactions in New York City (in connection with
determining the Federal Funds Rate), (iv) principal London offices of major
reference banks in the London interbank market (in connection with determining
LIBOR), (v) major money center banks in New York City (in connection with
determining the Prime Rate), (vi) leading primary United States government
securities dealers (in connection with determining the Treasury Rate), or
(vii) leading primary United States government securities dealers in New York
City (in connection with determining the CMT Rate), the Calculation Agent will
notify the Issuer, prior to the applicable Calculation Date, in accordance with
Section 12 hereof, of which entities it has so selected; PROVIDED, HOWEVER, that
any failure to so notify the Issuer will have no effect on the validity of the
Notes.
SECTION 3. NEW BASE RATES. If the Issuer proposes to issue Floating Rate
Notes whose interest rate will be determined on a basis or formula not referred
to above (a "New Base Rate"), the Issuer shall give a description of such New
Base Rate to the Calculation Agent. The Calculation Agent shall determine if it
is able and willing to calculate the New Base Rate and upon its agreement in
writing to do so the "Base Rates" shall be deemed to include the New Base Rate.
If the Calculation Agent notifies the Issuer that it is not able or willing to
calculate the New Base Rate, or that it is only willing to do so on the basis of
an increase of its fees not acceptable to the Issuer, the Calculation Agent
shall have no responsibility with respect to such New Base Rate and the Issuer
shall appoint a different calculation agent to determine the New Base Rate.
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 Issuer, and the Issuer shall pay such compensation and shall reimburse
the Calculation Agent, upon receiving a statement thereof from the Calculation
Agent, for all reasonable out-of-pocket expenses, disbursements and advances
(including the fees of any of its agents and attorneys) incurred or made by the
Calculation Agent in connection with the services rendered by it under this
Agreement, except any such expenses, disbursements or advances attributable to
its negligence, willful misconduct or bad faith.
SECTION 5. RIGHTS AND LIABILITIES OF CALCULATION AGENT. The Calculation
Agent shall incur no liability for, or in respect of, any action taken, omitted
to be taken or suffered by it in good faith in reliance upon, any Floating Rate
Note or certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or other communication reasonably believed by
it to be genuine. Any certificate, affidavit, instruction, notice, request,
direction, order, statement or other communication from the Issuer made or given
by it and sent, delivered or directed to the Calculation Agent under, pursuant
to or as permitted by any provisions of this Agreement shall be sufficient for
purposes of this Agreement if such communication is in writing and signed by any
person whom the Calculation Agent reasonably believes to be a duly authorized
officer of the Issuer. With respect to matters of law, the Calculation Agent
may consult with counsel satisfactory to it, and the advice or opinion 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
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suffered by it hereunder in good faith and in accordance with and in reliance
upon the advice or opinion of such counsel.
SECTION 6. RIGHT OF CALCULATION AGENT TO OWN FLOATING RATE NOTES. The
Calculation Agent may act as Trustee under the Indenture and it, its officers,
employees and shareholders may become owners of, or acquire any interests in,
Floating Rate Notes, with the same rights as if the Calculation Agent were not
the Calculation Agent hereunder, and may engage in, or have an interest in, any
financial or other transaction with the Issuer as if the Calculation Agent were
not the Calculation Agent hereunder.
SECTION 7. DUTIES OF CALCULATION AGENT. In acting under this Agreement
and in connection with the Floating Rate Notes, the Calculation Agent shall be
obligated to perform only such duties as are specifically set forth herein and
no other duties or obligations on the part of the Calculation Agent, in its
capacity as such, shall be implied by this Agreement. In acting under this
Agreement, the Calculation Agent (in its capacity as such) does not assume any
obligation towards, or any relationship of agency or trust for or with, the
holders of the Notes.
SECTION 8. TERMINATION, RESIGNATION OR REMOVAL OF CALCULATION AGENT. The
Calculation Agent may at any time resign and terminate its obligations under
this Agreement by giving no less than 90 days written notice to the Issuer,
unless the Issuer consents in writing to a shorter time. Upon receipt of notice
of such resignation and termination by the Calculation Agent, the Issuer agrees
promptly to appoint a successor Calculation Agent. The Issuer may remove the
Calculation Agent at any time by giving written notice to the Calculation Agent
and specifying the date when the removal shall become effective; PROVIDED,
HOWEVER, that so long as any Floating Rate Notes are outstanding, no resignation
or removal, whether by the Calculation Agent or by the Issuer, shall become
effective prior to the date of the appointment, by the Issuer, as provided in
Section 9 hereof, of a successor Calculation Agent and the acceptance of such
appointment by such successor Calculation Agent. If an instrument of acceptance
by a successor Calculation Agent shall not have been delivered to the resigning
Calculation Agent within 30 days after its giving of such notice of resignation,
the resigning Calculation Agent may petition any court of competent jurisdiction
for the appointment of a successor Calculation Agent. Upon resignation or
removal of the Calculation Agent pursuant to the provisions of this Section,
such Calculation Agent (the "Retiring Calculation Agent") shall be entitled to
the payment of any compensation owed to it by the Issuer hereunder and to the
reimbursement, upon provision of a statement thereof by the Retiring Calculation
Agent, of all reasonable expenses, disbursements and advances incurred or made
by the Retiring Calculation Agent in connection with the services rendered by it
hereunder, as provided by Section 4 hereof, and the provisions of Section 10
shall remain in effect following such resignation or removal.
SECTION 9. APPOINTMENT OF SUCCESSOR CALCULATION AGENT. Any successor
Calculation Agent appointed by the Issuer or by a court pursuant to this
Agreement as a result of the resignation or removal of a Calculation Agent
pursuant to the provisions of Section 8 hereof shall execute and deliver to the
Retiring Calculation Agent and to the Issuer an instrument accepting such
appointment, and thereupon such successor Calculation Agent shall, without any
further act or instrument, become vested with all the rights, immunities, duties
and obligations of the Retiring Calculation Agent, with like effect as if
originally named as Calculation Agent hereunder, and the Retiring Calculation
Agent shall thereupon be obligated to transfer and deliver, and such successor
Calculation Agent shall be entitled to receive and accept, copies of any
available records maintained by the Calculation Agent in connection with the
performance of its obligations hereunder.
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SECTION 10. INDEMNIFICATION. The Issuer shall indemnify and hold harmless
the Calculation Agent, its officers and employees from and against all actions,
claims, damages, liabilities, losses and reasonable expenses (including legal
fees and expenses) which it may incur or sustain relating to or arising out of
the exercise by the Calculation Agent of its powers and duties hereunder, except
actions, claims, damages, liabilities, losses and expenses caused by the
negligence, willful misconduct or bad faith of the Calculation Agent, its
officers or employees. This Section 10 shall survive the payment in full of all
obligations under the Floating Rate Notes, whether by redemption, repayment or
otherwise, the termination of this Agreement, or the resignation or removal of
the Calculation Agent.
SECTION 11. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY CALCULATION
AGENT. Any corporation into which the Calculation Agent may be merged,
converted or consolidated, or any corporation resulting from any merger,
conversion 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 corporate trust business, shall, to the extent
permitted by applicable law, become the Calculation Agent under this Agreement
without the execution of any document or any further act by the parties hereto;
PROVIDED that such successor Calculation Agent shall assume, or be deemed to
have assumed, all of the obligations and liabilities of the predecessor
Calculation Agent under this Agreement.
SECTION 12. NOTICES. Any notice or other communication 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 24 hours) to the addresses given below or such
other address as the party to receive such notice may have previously specified:
To the Issuer:
Xxxxxx Xxxxxx Corporation
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Treasurer
Telecopy: (000) 000-0000
To the Calculation Agent or to the Trustee:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
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.
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SECTION 13. 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.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 15. AMENDMENTS. This Agreement may only be amended by a writing
signed by the parties hereto.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been entered into the date and year
first above written.
XXXXXX XXXXXX CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ X. Xxxxxx
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Name: X. Xxxxxx
Title: Vice President
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