EXHIBIT 4.4
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of October 30, 1998, between Xxxxxxxxx,
Lufkin & Xxxxxxxx, Inc., a Delaware corporation (hereinafter called the
"Issuer"), having its principal office at 000 Xxxx 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
debt indenture dated as of June 8, 1998 (as it may be supplemented or amended
from time to time, the "Indenture") between the Company 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 December 22, 1997 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
wilful 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;
(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
wilful 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 wilful 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 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 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: Treasurer
(telephone: (000) 000-0000; telecopier: (000) 000-0000); 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.
XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
By:_________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By_________________________________
Name:
Title:
