EXHIBIT 4.11
[FORM OF CALCULATION AGENT AGREEMENT]
CREDIT SUISSE FIRST BOSTON (USA), INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of June __, 2001, between Credit Suisse
First Boston (USA), Inc., a Delaware corporation (hereinafter called the
"Issuer"), having its principal office at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and The Chase Manhattan Bank (hereinafter sometimes called the
"Calculation Agent," which term shall, unless the context shall otherwise
require, include its successors and assigns), having its principal corporate
trust office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Issuer proposes to issue from time to time Medium-Term
Notes (the "Notes"), to be issued pursuant to the provisions of a senior debt
indenture dated as of June 1, 2001 (as it may be supplemented or amended from
time to time, the "Indenture") between the Issuer and The Chase Manhattan Bank,
as trustee (the "Trustee"). Capitalized terms used in this Agreement and not
otherwise defined herein are used as defined in the Indenture. Certain of the
Notes may bear interest at a floating rate determined by reference to an
interest rate formula or may be in the form of fixed rate notes that bear an
interest rate determined by reference to an interest rate formula (collectively,
the "Floating Rate Notes"), and the Issuer desires to engage the Calculation
Agent to perform certain services in connection therewith.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints The Chase Manhattan Bank as
Calculation Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein set forth, and The Chase Manhattan Bank hereby accepts such
appointment. The Calculation Agent shall act as an agent of the Issuer for the
purpose of determining the interest rate or rates of the Floating Rate Notes.
2. The Issuer agrees to deliver to the Calculation Agent, prior to
the issuance of any Floating Rate Notes, copies of the proposed forms of such
Notes, including copies of all terms and conditions relating to the
determination of the interest rates thereunder. The Issuer shall not issue any
Floating Rate Note prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Note. The Calculation Agent
hereby acknowledges its acceptance of the proposed forms of Floating Rate Notes
previously delivered to it.
3. The Issuer shall notify the Calculation Agent of the issuance of
any Floating Rate Notes prior to the issuance thereof and, at the time of such
issuance, shall deliver to the Calculation Agent all information in the
possession of the Issuer for the calculation of the applicable interest rates
thereunder. The Calculation Agent shall calculate the applicable interest
rates for Floating Rate Notes in accordance with the terms of such Floating Rate
Notes, the Indenture and the provisions of this Agreement. In addition, the
Calculation Agent shall maintain, or cause to be maintained, records permitting
it to calculate the applicable interest rate as of the applicable Interest
Determination Date (as defined in the Floating Rate Notes) in case the
applicable rates which are to be published, publicly announced or displayed on
the applicable Calculation Date (as defined in the Floating Rate Notes) are not
available on such Calculation Date.
4. Promptly following the determination of each change to the
interest rate or the determination of the interest rate (for fixed rate notes
that bear an interest rate determined by reference to an interest rate formula)
applicable to any Floating Rate Note, the Calculation Agent will cause to be
forwarded to the Issuer, the Trustee and any paying agent for such Note
information regarding the interest rate then in effect for such Floating Rate
Note.
5. The Issuer will pay such compensation as is set forth in that
certain letter dated June __, 2001 from the Calculation Agent to the Issuer and
the expenses, including reasonable counsel's and other professionals' fees,
incurred by the Calculation Agent in connection with its duties hereunder to the
Calculation Agent upon receipt of such invoices as the Issuer shall reasonably
require.
6. Notwithstanding any satisfaction or discharge of the Notes or the
Indenture, the Issuer will indemnify the Calculation Agent against any losses,
liabilities, costs, claims, actions or demands which it may incur or sustain or
which may be made against it in connection with its appointment or the exercise
of its powers and duties hereunder as well as the reasonable costs, including
reasonable fees and expenses of counsel in defending any claim, action or
demand, except such as may result from the negligence or willful misconduct of
the Calculation Agent or any of its employees. The Calculation Agent shall incur
no liability and shall be indemnified and held harmless by the Issuer for, or in
respect of, any actions taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) the written opinion or advice of counsel
or other professional advisers satisfactory to it or (ii) written instructions
from the Issuer. The Calculation Agent shall not be liable for any error
resulting from the use of or reliance on a source of information used in good
faith and with due care to calculate any interest rate hereunder. The provisions
of this Section shall survive the termination of this Agreement.
7. The Calculation Agent accepts its obligations herein set forth
upon the terms and conditions hereof, including the following, to all of which
the Issuer agrees:
(i) in acting under this Agreement and in connection with the
Notes, the Calculation Agent, acting as agent for the Issuer, does not assume
any obligation towards, or any relationship of agency or trust for or with, any
of the holders of the Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made or given
under any provision of this Agreement shall be sufficient if signed or given by
any person whom the Calculation Agent reasonably believes to be a duly
authorized officer or attorney-in-fact of the Issuer;
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(iii) the Calculation Agent shall be obligated to perform only
such duties as are expressly set forth herein and any duties necessarily
incidental thereto;
(iv) the Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered in good faith by it in reliance upon anything contained in a
Floating Rate Note, the Indenture or any information supplied to it by the
Issuer pursuant to this Agreement, including the information to be supplied
pursuant to paragraph 3 above.
(v) the Calculation Agent, whether acting for itself or in any
other capacity, may become the owner or pledgee of Notes with the same rights as
it would have had if it were not acting hereunder as Calculation Agent; and
(vi) the Calculation Agent shall incur no liability hereunder
except for loss sustained by reason of its own negligence or willful misconduct.
8. (a) The Issuer agrees to notify the Calculation Agent at least 30
days prior to the first issuance of any Floating Rate Note (other than the
Floating Rate Notes in the form previously delivered to the Calculation Agent)
with an interest rate to be determined by reference to any other formula that
would require the Calculation Agent to select banks, dealers or other financial
institutions (the "Reference Banks") for purposes of quoting rates. Promptly
thereafter, the Calculation Agent will notify the Issuer and the Trustee of the
names and addresses of such Reference Banks. Forthwith upon any change in the
identity of any Reference Bank, the Calculation Agent shall notify the Issuer
and the Trustee of such change. The Calculation Agent shall not be responsible
to the Issuer or any third party for any failure of any Reference Bank to
fulfill its duties or meet its obligations as a Reference Bank or as a result of
the Calculation Agent's having acted (except in the event of negligence or
willful misconduct) on any quotation or other information given by any Reference
Bank that subsequently may be found to be incorrect.
(b) Except as provided below, the Calculation Agent may at any time
resign as Calculation Agent by giving written notice to the Issuer and the
Trustee of such intention on its part, specifying the date on which its desired
resignation shall become effective, provided that such notice shall be given not
less than 30 days prior to the said effective date unless the Issuer and the
Trustee otherwise agree in writing; provided, however, if the Calculation Agent
has given not less than 30 days' prior notice of its desired resignation, and
during such 30 days a successor Calculation Agent has not accepted its
appointment as successor Calculation Agent, the Calculation Agent so resigning
may petition any court of competent jurisdiction for the appointment of a
successor Calculation Agent. The Issuer covenants that it shall appoint a
successor Calculation Agent as soon as practicable after receipt of any notice
of resignation hereunder.
Except as provided below, the Calculation Agent may be removed by
the filing with it and the Trustee of an instrument in writing signed by the
Issuer specifying such removal and the date it shall become effective (such
effective date being at least 30 days after said filing) provided, however, that
if a successor Calculation Agent has not accepted its appointment as successor
Calculation Agent, the Calculation Agent so removed may petition a court of
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competent jurisdiction for the appointment of a successor Calculation Agent. Any
such resignation or removal shall take effect upon:
(i) the appointment by the Issuer as provided herein of a
successor Calculation Agent; and
(ii) the acceptance of such appointment by such successor
Calculation Agent.
Upon its resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of its compensation and the
reimbursement of all expenses (including reasonable counsel and other
professionals' fees) incurred by such retiring Calculation Agent pursuant to
paragraph 5 hereof.
(c) If at any time the Calculation Agent shall resign or be removed,
or shall become incapable of acting or shall be adjudged bankrupt or insolvent,
or liquidated or dissolved, or an order is made or an effective resolution is
passed to wind up the Calculation Agent, or if the Calculation Agent shall file
a voluntary petition in bankruptcy or make an assignment for the benefit of its
creditors, or shall consent to the appointment of a receiver, administrator or
other similar official 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, administrator or other similar official of the Calculation Agent or of
all or any substantial part of its property shall be appointed, or if any order
of any court shall be entered approving any petition filed by or against the
Calculation Agent under the provisions of any applicable bankruptcy or
insolvency law, or if any public officer shall take charge or control of the
Calculation Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a successor Calculation Agent shall be
appointed by the Issuer by an instrument in writing filed with the successor
Calculation Agent and the Trustee. Upon the appointment as aforesaid of a
successor Calculation Agent and acceptance by the latter of such appointment,
the former Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Issuer and the Trustee an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, immunities, duties and obligations of such
predecessor with like effect as if originally named as the Calculation Agent
hereunder, and such predecessor, upon payment of its compensation, charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(e) Any corporation or other entity into which the Calculation Agent
may be merged or converted or any corporation or other entity with which the
Calculation Agent may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Calculation Agent shall sell or
otherwise transfer all or substantially all of its assets or business shall, to
the extent permitted by applicable law, be the successor Calculation Agent under
this Agreement without the execution or filing or any paper or any further act
on the part
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of any of the parties hereto. Notice of any such merger, conversation,
consolidation or sale shall forthwith be given to the Issuer and the Trustee.
(f) The provision of paragraph 6 hereof shall survive any
resignation or removal of the Calculation Agent hereunder.
9. Any notice required to be given hereunder shall be delivered
in person, sent by letter or facsimile or communicated by telephone (subject,
in the case of communication by telephone, to confirmation dispatched within
two business days by letter or facsimile), in the case of the Issuer, to it
at the address set forth in the heading of this Agreement, Attention:
Corporate Treasury Department (telephone: (000) 000-0000; facsimile: (212)
325-8227); in the case of the Calculation Agent, to it at the address set
forth in the heading of this Agreement, Attention: Global Trust Services
(telephone: (000) 000-0000; facsimile: (000) 000-0000); and in the case of
the Trustee, to it at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Global Trust Services (telephone: (000) 000-0000;
facsimile: (000) 000-0000); or, in any case, to any other address of which
the party receiving notice shall have notified the party giving such notice
in writing.
10. This Agreement may be amended only by a writing duly
executed and delivered by each of the parties signing below.
11. The provisions of this Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
12. This Agreement may be executed in counterparts and the
executed counterparts shall together constitute a single instrument.
13. In the event of any conflict relating to the rights or
obligations of the Calculation Agent in connection with the calculation of the
interest rate on the Floating Rate Notes, the relevant terms of this Agreement
shall govern such rights and obligations.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the date and year first above written.
CREDIT SUISSE FIRST BOSTON (USA), INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK
By
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Name:
Title:
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