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EXHIBIT 4.3
HOUGHTON MIFFLIN COMPANY
MEDIUM-TERM NOTES
DUE MORE THAN NINE MONTHS
FROM DATE OF ISSUE
CALCULATION AGENT AGREEMENT
THIS AGREEMENT dated as of March 6, 1996, between Houghton Mifflin Company,
a Massachusetts corporation (hereinafter called the "Issuer"), having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and State
Street Bank and Trust Company (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 ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
WHEREAS, the Issuer proposes to issue from time to time Medium-Term Notes
(the "Notes"), to be issued pursuant to the provisions of an Indenture dated as
of March 15, 1994, as supplemented by a First Supplemental Indenture dated as of
July 27, 1995 (as it may be further supplemented or amended from time to time,
the "Indenture"), between the Issuer and State Street Bank and Trust Company
(the "Trustee"), as successor trustee to The First National Bank of Boston.
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 have one Interest Payment Date and have 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 State Street Bank and Trust Company as
Calculation Agent for the Floating Rate Notes, upon the terms and subject to the
conditions herein set forth, and State Street Bank and Trust Company 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 the 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
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maintain, or cause to be maintained, records permitting it to calculate the
applicable interest rate as of the applicable Interest Determination Date 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 (where there is only one Interest
Payment Date) applicable to any Floating Rate Note, the Calculation Agent will
cause to be forwarded to the Issuer, the Trustee, if different from the
Calculation Agent, and any paying agent for such Note, if different from the
Calculation Agent, information regarding the interest rate then in effect for
such Floating Rate Note.
5. The Issuer will pay such compensation, including reasonable counsel fees
incurred by the Calculation Agent in connection with its duties hereunder, to
the Calculation Agent as is mutually agreed 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 (ii) written instructions from the Issuer.
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
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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 4 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
60 days prior to said effective date unless the Issuer and the Trustee otherwise
agree in writing; provided, however, if the Calculation Agent has given not less
than 60 days' prior notice of its desired resignation, and during such 60 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 20 days after said filing). Any such resignation or removal
shall take effect upon:
(i) the appointment by the Issuer as provided herein of a successor
Calculation Agent; and
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(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 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 be a
party 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 or consolidation 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.
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9. Any notice required to be given hereunder shall be delivered in person,
sent by letter or telex or telecopy or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within two
business days by letter, telex or telecopy), in the case of the Issuer, to it at
the address set forth in the heading of this Agreement, Attention: Assistant
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 Division (telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇); and in the case of the Trustee, to it at the same
address as the Calculation Agent; 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.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date and year first above written.
HOUGHTON MIFFLIN COMPANY
By:
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Title:
STATE STREET BANK AND TRUST
COMPANY
By:
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Title:
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