▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
CALCULATION AGENT AGREEMENT
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THIS AGREEMENT dated as of April 8, 1997, between ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇, Inc., a Delaware corporation (hereinafter called the "Issuer"),
having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and
The Bank of New York (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 ▇▇▇
▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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 October 25, 1995 (as it may be supplemented or amended
from time to time, the "Indenture") between the Company and The Bank of New
York, 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 Bank of New York as Calculation
Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein set forth, and The Bank of New York 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 April 8, 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:
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(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
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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
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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: (▇▇▇) ▇▇▇-▇▇▇▇; telecopier: (▇▇▇) ▇▇▇-▇▇▇▇); in the case of the
Calculation Agent, to it at the address set forth in the heading of this
Agreement, Attention: Corporate Trust Trustee Administration (telephone: (212)
▇▇▇-▇▇▇▇; facsimile: (212) 815- 5915); and in the case of the Trustee, to it
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Administration (telephone: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile: (▇▇▇) ▇▇▇-▇▇▇▇;
or, in any case, to any other address of
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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.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date and year first above written.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ INC.
By:
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Name:
Title:
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
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Name:
Title:
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