DOCID053137-0197-08316-NY01.2084227.2 8
EXHIBIT 4.01
CALCULATION AGENCY AGREEMENT
AGREEMENT, dated as of May 2, 2001, between Xxxxxx Brothers
Holdings Inc. (the "Company") and Xxxxxx Brothers Inc., as Calculation Agent.
WHEREAS, the Company has authorized the issuance of
$20,000,000 aggregate principal amount of NASDAQ-100 INDEX(R) SUNSSM, 109%
Minimum Redemption Stock Upside Note SecuritiesSM Due April 26, 2004 (the
"Securities")*;
WHEREAS, the Securities will form a single series with the
$30,000,000 aggregate principal amount of NASDAQ-100 INDEX(R) SUNSSM, 109%
Minimum Redemption Stock Upside Note SecuritiesSM Due April 26, 2004 that the
Company issued on April 26, 2001;
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;
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NOW THEREFORE, the Company and the Calculation Agent agree as
follows:
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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 Capped
Quarterly Returns for each Reset Period, (b) the determination of the Equity
Return, (c) the determination of the Alternative Redemption Amount, (d) the
Successor Index if publication of the Index is discontinued and (e) 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.
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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
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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
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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: (212)
000-0000), Attention:
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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.
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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 Nasdaq-100 Index(R), as calculated by Nasdaq
(the "Index").
2. Determination of the Maturity Payment Amount.
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The Calculation Agent shall determine (i) the Capped Quarterly
Returns for each of the twelve Reset Periods, (ii) the Equity Return and (iii)
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)
$1,090 and (b) the Alternative Redemption Amount.
3. Discontinuance of the Index.
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(a) If Nasdaq discontinues publication of the Index and Nasdaq 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 Capped
Quarterly Returns for each Reset Period 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 any Capped Quarterly Return 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 Nasdaq discontinues publication of the Index prior to, and such
discontinuance is continuing on, the date that any Capped Quarterly Return 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 Capped Quarterly Return to be used in computing the Alternative
Redemption Amount. The ending index level to be used in computing the Capped
Quarterly Return 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 ending index level to be used in computing the Capped
Quarterly Return, is changed in a material respect, or if the Index or a
Successor Index is in any other way modified so that such
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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 ending index level to be
used in computing the Capped Quarterly Return is to be determined, make such
calculations and adjustments as, in the good faith judgment of the Calculation
Agent, 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 Capped Quarterly
Returns, the Equity Return 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
(e.g., 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 (e.g., as 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 sum of (i) $1,000 and (ii) the
Equity Return.
"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 or Nasdaq 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 Agency Agreement" shall mean the Calculation
Agency Agreement, dated as of May 2, 2001, between the Company and the
Calculation Agent, as amended from time to time.
"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.
"Capped Quarterly Return" for any Reset Period shall mean the
lesser of:
(x) ending index level - starting index level; and
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starting index level
(y) 9%,
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where (i) the starting index level for the first Reset Period equals
1953.28 and the starting index level on any Reset Date equals the
ending index level for the Reset Period ending on that Reset Date and
(ii) the ending index level for any Reset Period is the Closing Level
on the Reset Date at the end of that Reset Period or, in the case of
the last Reset Period, on the fifth Business Day prior to the Stated
Maturity.
"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 Nasdaq or the publisher of the Successor Index, as the case
may be.
"Equity Return" shall mean the product of (i) $1,000 and (ii)
the sum of the Capped Quarterly Returns for twelve Reset Periods.
"Index" shall mean the Nasdaq-100 Index(R), as calculated by
Nasdaq.
"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 the rules of any primary organized U.S. exchange or trading
system similar 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 as determined by the Calculation
Agent), 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
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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 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.
"Payment Determination Date" shall mean the fifth Business Day
prior to the Stated Maturity.
"Reset Dates" shall mean January 19, April 19, July 19 and
October 19 of each year, beginning July 19, 2001, or if any such day is not a
Business Day, the next Business Day.
"Reset Periods" shall mean the periods (i) from and including
April 19, 2001 to and including the first Reset Date, (ii) from and including
one Reset Date to and including the next succeeding Reset Date and (iii) from
and including the last Reset Date to and including the fifth Business Day prior
to the Stated Maturity.
"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 April 26, 2004, the first Business Day after April
26, 2004 on which a Market Disruption Event does not occur.
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"Successor Index" shall mean such substitute index as the
Calculation Agent may select pursuant to the Calculation Agency Agreement upon
discontinuance of the Index.
