Exhibit 4.1
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INDENTURE
between
ANTHRACITE CAPITAL, INC.
and
WILMINGTON TRUST COMPANY
as Trustee
_______________________
Dated as of May 29, 2007
_______________________
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Table of Contents
Clause Subject Matter Page
ARTICLE I. Definitions and Other Provisions of General Application..............- 1 -
SECTION 1.1 Definitions................................................- 1 -
SECTION 1.2 Compliance Certificate and Opinions........................- 9 -
SECTION 1.3 Forms of Documents Delivered to Trustee....................- 9 -
SECTION 1.4 Acts of Holders...........................................- 10 -
SECTION 1.5 Notices, Etc. to Trustee and Company......................- 12 -
SECTION 1.6 Notice to Holders; Waiver.................................- 12 -
SECTION 1.7 Effect of Headings and Table of Contents..................- 13 -
SECTION 1.8 Successors and Assigns....................................- 13 -
SECTION 1.9 Severability Clause.......................................- 13 -
SECTION 1.10 Benefits of Indenture.....................................- 13 -
SECTION 1.11 Governing Law.............................................- 13 -
SECTION 1.12 Submission to Jurisdiction................................- 13 -
SECTION 1.13 Non-Business Days.........................................- 14 -
ARTICLE II. Security Forms......................................................- 14 -
SECTION 2.1 Form of Security..........................................- 14 -
SECTION 2.2 Restricted Legend.........................................- 15 -
SECTION 2.3 Form of Trustee's Certificate of Authentication...........- 17 -
SECTION 2.4 Temporary Securities......................................- 17 -
SECTION 2.5 Definitive Securities.....................................- 18 -
ARTICLE III. The Securities......................................................- 18 -
SECTION 3.1 Payment of Principal and Interest.........................- 18 -
SECTION 3.2 Denominations.............................................- 20 -
SECTION 3.3 Execution, Authentication, Delivery and Dating............- 20 -
SECTION 3.4 Global Securities.........................................- 21 -
SECTION 3.5 Registration, Transfer and Exchange Generally.............- 23 -
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities..........- 24 -
SECTION 3.7 Persons Deemed Owners.....................................- 25 -
SECTION 3.8 Cancellation..............................................- 25 -
SECTION 3.9 Agreed Tax Treatment......................................- 25 -
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Table of Contents
(continued)
SECTION 3.10 CUSIP Numbers.............................................- 25 -
ARTICLE IV. Satisfaction and Discharge..........................................- 26 -
SECTION 4.1 Satisfaction and Discharge of Indenture...................- 26 -
SECTION 4.2 Application of Trust Money................................- 27 -
ARTICLE V. Remedies............................................................- 27 -
SECTION 5.1 Events of Default.........................................- 27 -
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........- 28 -
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..................................- 29 -
SECTION 5.4 Trustee May File Proofs of Claim..........................- 29 -
SECTION 5.5 Trustee May Enforce Claim Without Possession
of Securities...........................................- 30 -
SECTION 5.6 Limitation on Suits.......................................- 30 -
SECTION 5.7 Application of Money Collected............................- 31 -
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium, if any, and Interest................- 31 -
SECTION 5.9 Restoration of Rights and Remedies........................- 31 -
SECTION 5.10 Rights and Remedies Cumulative............................- 31 -
SECTION 5.11 Delay or Omission Not Waiver..............................- 32 -
SECTION 5.12 Control by Holders........................................- 32 -
SECTION 5.13 Waiver of Past Defaults...................................- 32 -
SECTION 5.14 Undertaking for Costs.....................................- 33 -
SECTION 5.15 Waiver of Usury, Stay or Extension Laws...................- 33 -
SECTION 5.16 Repurchase at the Option of Holders upon
Change of Control.......................................- 33 -
ARTICLE VI. The Trustee.........................................................- 35 -
SECTION 6.1 Corporate Trustee Required................................- 35 -
SECTION 6.2 Certain Duties and Responsibilities.......................- 36 -
SECTION 6.3 Notice of Defaults........................................- 37 -
SECTION 6.4 Certain Rights of Trustee.................................- 37 -
SECTION 6.5 May Hold Securities.......................................- 39 -
SECTION 6.6 Compensation; Reimbursement; Indemnity....................- 39 -
SECTION 6.7 Resignation and Removal; Appointment of Successor.........- 40 -
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Table of Contents
(continued)
SECTION 6.8 Acceptance of Appointment by Successor....................- 41 -
SECTION 6.9 Merger, Conversion, Consolidation or Succession
to Business.............................................- 41 -
SECTION 6.10 Not Responsible for Recitals or Issuance
of Securities...........................................- 42 -
SECTION 6.11 Appointment of Authenticating Agent.......................- 42 -
ARTICLE VII. Holder's Lists and Reports By Trustee and Company...................- 43 -
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders...............................................- 43 -
SECTION 7.2 Preservation of Information; Communications
to Holders..............................................- 44 -
SECTION 7.3 Reports by the Company....................................- 44 -
ARTICLE VIII. Consolidation, Merger, Conveyance, Transfer or Lease................- 45 -
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms...................................................- 45 -
SECTION 8.2 Successor Company Substituted.............................- 45 -
ARTICLE IX. Supplemental Indentures.............................................- 46 -
SECTION 9.1 Supplemental Indentures without Consent of Holders........- 46 -
SECTION 9.2 Supplemental Indentures with Consent of Holders...........- 47 -
SECTION 9.3 Execution of Supplemental Indentures......................- 47 -
SECTION 9.4 Effect of Supplemental Indentures.........................- 48 -
SECTION 9.5 Reference in Securities to Supplemental Indentures........- 48 -
ARTICLE X. Covenants...........................................................- 48 -
SECTION 10.1 Payment of Principal, Premium, if any, and Interest.......- 48 -
SECTION 10.2 Money for Security Payments to be Held in Trust...........- 48 -
SECTION 10.3 Statement as to Compliance................................- 49 -
SECTION 10.4 Calculation Agent.........................................- 50 -
SECTION 10.5 [Reserved]................................................- 50 -
SECTION 10.6 Additional Covenants......................................- 50 -
SECTION 10.7 Waiver of Covenants.......................................- 51 -
SECTION 10.8 Treatment of Securities...................................- 52 -
ARTICLE XI. Redemption of Securities............................................- 52 -
SECTION 11.1 Optional Redemption.......................................- 52 -
SECTION 11.2 Special Event Redemption..................................- 52 -
SECTION 11.3 Election to Redeem; Notice to Trustee.....................- 52 -
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Table of Contents
(continued)
SECTION 11.4 Selection of Securities to be Redeemed....................- 53 -
SECTION 11.5 Notice of Redemption......................................- 53 -
SECTION 11.6 Deposit of Redemption Price...............................- 54 -
SECTION 11.7 Payment of Securities Called for Redemption...............- 54 -
SCHEDULES AND EXHIBITS
Schedule A - Determination of LIBOR
Exhibit A - Form of Officer's Financial Certificate
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INDENTURE, dated as of May 29, 2007, between Anthracite Capital, Inc.,
a Maryland corporation (the "Company"), and Wilmington Trust Company, a
Delaware banking corporation, as Trustee (in such capacity, the "Trustee").
RECITALS OF THE COMPANY
Whereas, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its unsecured senior notes (the
"Securities") and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered; and
Whereas, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
ARTICLE I.
Definitions and Other Provisions of General Application
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I;
(b) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation;"
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(d) unless the context otherwise requires, any reference to
an "Article," a "Section," a "Schedule" or an "Exhibit" refers to an
Article, a Section, a Schedule or an Exhibit, as the case may be, of
this Indenture;
(e) the words "hereby," "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any amounts payable on the Securities, the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security, in each case to
the extent legally enforceable.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; ; provided, that, with respect to the Company or any of its
subsidiaries, no Person shall be deemed an Affiliate of the Company or any of
its subsidiaries due to such Person's having a BlackRock entity as such
Person's manager.
"Applicable Depositary Procedures" means, with respect to any transfer
or transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.11 to act on behalf of the Trustee to authenticate the
Securities.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee is closed for business.
"Calculation Agent" has the meaning specified in Section 10.4.
"Change of Control" is defined in Section 5.16.
"Change of Control Offer" is defined in Section 5.16.
"Code" or "Internal Revenue Code" means the Internal Revenue Code of
1986 or any successor statute thereto, in each case as amended from time to
time.
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"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture and, thereafter,
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, Chief Executive Officer, President, Chief Financial Officer or a
Vice President, and delivered to the Trustee.
"Consolidated Capitalization" shall mean the sum of stockholders'
equity and total indebtedness as shown on the consolidated balance sheet of the
Company and its subsidiaries included in the Company's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as applicable.
"Consolidated Indebtedness" shall mean total indebtedness as shown on
the consolidated balance sheet of the Company and its subsidiaries included in
the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
applicable.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of this Indenture is located at Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attn:
Corporate Trust Administration - Anthracite Capital, Inc.
"Debt" means, with respect to any Person, whether recourse is to all
or a portion of the assets of such Person, whether currently existing or
hereafter incurred and whether or not contingent and without duplication, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or other accrued liabilities arising in the ordinary
course of business); (v) every capital lease obligation of such Person; (vi)
all indebtedness of such Person, whether incurred on or prior to the date of
this Indenture or thereafter incurred, for claims in respect of derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; (vii) every obligation
of the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor or otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type referred to in
clauses (i) through (vii).
"Debt-to-Total Capitalization Ratio" shall mean the ratio of
Consolidated Indebtedness to Consolidated Capitalization.
"Defaulted Interest" has the meaning specified in Section 3.1(c).
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"Depositary" means an organization registered as a clearing agency
under the Exchange Act that is designated as Depositary by the Company or any
successor thereto. DTC will be the initial Depositary.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"DTC" means The Depository Trust Company, a New York corporation, or
any successor thereto.
"Equity Interests" means (a) the partnership interests (general or
limited) in a partnership, (b) the membership interests in a limited liability
company and (c) the shares or stock interests (both common stock and preferred
stock) in a corporation.
"ERISA" means the Employee Retirement Income Security Act of 1974 or
any successor statute thereto, in each case as amended from time to time.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 or any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(h).
"GAAP" means United States generally accepted accounting principles,
consistently applied, from time to time in effect.
"Global Security" means a Security that evidences all or part of the
Securities, the ownership and transfers of which shall be made through book
entries by a Depositary.
"Government Obligation" means (a) any security that is (i) a direct
obligation of the United States of America of which the full faith and credit
of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America or the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (b) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
Government Obligation that is specified in clause (a) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any Government
Obligation that is so specified and held, provided, that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
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"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be amended or supplemented by one or more amendments or
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Intangible Assets" shall mean the excess of the cost over book value
of assets acquired, patents, trademarks, trade names, copyrights, franchises
and other intangible assets (excluding in any event the value of any residual
securities).
"Interest Payment Date" means July 30, October 30, January 30 and
April 30 of each year, commencing on July 30, 2007, during the term of this
Indenture.
"Investment Company Act" means the Investment Company Act of 1940 or
any successor statute thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by the Company of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation (including any announced
prospective change) or a written change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Company is or,
within ninety (90) days of the date of such opinion will be, considered an
"investment company" that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the issuance of
the Securities.
"LIBOR" has the meaning specified in Schedule A.
"LIBOR Business Day" has the meaning specified in Schedule A.
"LIBOR Determination Date" has the meaning specified in Schedule A.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or any installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, pursuant to Section 5.16, call for
redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(c).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company and delivered to the Trustee.
"Operative Documents" means the Indenture, the Purchase Agreement and
the Securities.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company or any Affiliate of the Company.
"Optional Redemption Price" has the meaning set forth in Section 11.1.
"Original Issue Date" means the date of original issuance of each
Security.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided, that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities that have been paid or in substitution for
or in lieu of which other Securities have been authenticated and
delivered pursuant to the provisions of this Indenture, unless proof
satisfactory to the Trustee is presented that any such Securities are
held by Holders in whose hands such Securities are valid, binding and
legal obligations of the Company;
provided, that, in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding unless the Company shall hold all outstanding Securities, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or any premium, if any, or interest on, or
other amounts in respect of, any Securities on behalf of the Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, government or any agency
or political subdivision thereof, or any other entity of whatever nature.
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"Place of Payment" means, with respect to the Securities, the
Corporate Trust Office of the Trustee.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Proceeding" has the meaning specified in Section 12.2(b).
"Purchase Agreement" means the Purchase Agreement executed and
delivered contemporaneously with this Indenture by the Company and the
purchaser named therein, as the same may be amended from time to time.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, in whole or in part, the Special Redemption Price or the Optional
Redemption Price, as applicable, at which such Security or portion thereof is
to be redeemed as fixed by or pursuant to this Indenture.
"Reference Banks" has the meaning specified in Schedule A.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities means the date that is fifteen (15) days
preceding such Interest Payment Date (whether or not a Business Day).
"Responsible Officer" means, when used with respect to the Trustee,
the officer in the Corporate Trust Administration department of the Trustee
having direct responsibility for the administration of this Indenture.
"Rights Plan" means a plan of the Company providing for the issuance
by the Company to all holders of its Common Stock of rights entitling the
holders thereof to subscribe for or purchase shares or units of Equity
Interests in the Company which rights (i) are deemed to be transferred with
such shares of such Equity Interests and (ii) are also issued in respect of
future issuances of such Equity Interests, in each case until the occurrence of
a specified event or events.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 or any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5(a).
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"Special Event" means the occurrence of an Investment Company Event or
a Tax Event.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.1(c).
"Special Redemption Price" has the meaning set forth in Section 11.2.
"Stated Maturity" means July 30, 2017.
"Subsidiary" means a Person more than fifty percent (50%) of the
outstanding voting stock or other voting interests of which is owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For purposes of this definition,
"voting stock" means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Tangible Net Worth" shall mean, as of a particular date, (i) all
amounts that would be included under stockholders' equity on the consolidated
balance sheet of the Company and its subsidiaries at such date, determined in
accordance with GAAP, less (ii) the sum of (A) amounts owing to the Company and
its consolidated Subsidiaries from Affiliates and (B) Intangible Assets of
Company and its consolidated Subsidiaries.
"Tax Event" means the receipt by the Company of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure,
including any notice or announcement of intent to adopt any such pronouncement
or procedure (an "Administrative Action"), regardless of whether such judicial
decision or Administrative Action is issued to or in connection with a
proceeding involving the Company and whether or not subject to review or
appeal, which amendment, change, judicial decision or Administrative Action is
enacted, promulgated or announced, in each case, on or after the date of
issuance of the Securities, there is more than an insubstantial risk that
interest payable by the Company on the Securities is not, or within ninety (90)
days of the date of such opinion, will not be, deductible by the Company, in
whole or in part, for United States federal income tax purposes.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, solely in its capacity as such and not in its
individual capacity, until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and, thereafter, "Trustee"
shall mean or include each Person who is then a Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended and as in effect on the date of this Indenture.
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SECTION 1.2 Compliance Certificate and Opinions.
(a) Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall, if
requested by the Trustee, furnish to the Trustee an Officers' Certificate
stating that all conditions precedent (including covenants compliance with
which constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, have been complied with; provided, that, in the
case of any application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificate provided pursuant to Section 10.3) shall include:
(i) a statement by each individual signing such certificate
or opinion that such individual has read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 1.3 Forms of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or after
reasonable inquiry should know, that the certificate or opinion or
representations with respect to matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession
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of the Company, unless such counsel knows, or after reasonable inquiry should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally received in the corrected form and, irrespective of the date or
dates of the actual execution and/or delivery thereof, such substitute document
or instrument shall be deemed to have been executed and/or delivered as of the
date or dates required with respect to the document or instrument for which it
is substituted. Without limiting the generality of the foregoing, any
Securities issued under the authority of such defective document or instrument
shall nevertheless be the valid obligations of the Company entitled to the
benefits of this Indenture equally and ratably with all other Outstanding
Securities.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
thereof duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments (including any appointment of an agent) is or are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by a Person acting in other than his
or her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution by
any Person of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(c) The ownership of Securities shall be proved by the Securities
Register.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(e) Without limiting the foregoing, a Holder entitled to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(f) Except as set forth in paragraph (g) of this Section 1.4, the
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
of Securities. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided, that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as defined in Section 1.4(h)) by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect). Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 1.6.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration or rescission or annulment thereof referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.6(b) or
(iv) any direction referred to in Section 5.12. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided, that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record
date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect). Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Company in writing and to each Holder of Securities in the manner set forth
in Section 1.6.
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(h) With respect to any record date set pursuant to paragraph (f) or
(g) of this Section 1.4, the party hereto that sets such record date may
designate any day as the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later day; provided, that no such change
shall be effective unless notice of the proposed new Expiration Date is given
to the other party hereto in writing, and to each Holder of Securities in the
manner set forth in Section 1.6, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section 1.4, the party hereto that set such record date shall
be deemed to have initially designated the ninetieth (90th) day after such
record date as the Expiration Date with respect thereto, subject to its right
to change the Expiration Date as provided in this paragraph. Notwithstanding
the foregoing, no Expiration Date shall be later than the one hundred eightieth
(180th) day after the applicable record date.
SECTION 1.5 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with and received by the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder if in writing and mailed, first class, postage prepaid,
to the Company addressed to it at Anthracite Capital, Inc., 40 East 52nd
Street, New York, NY 10022, Attention : Chief Financial Officer or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class, postage prepaid, to each Holder affected
by such event to the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
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SECTION 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction of this Indenture.
SECTION 1.8 Successors and Assigns.
This Indenture shall be binding upon and shall inure to the benefit of
any successor to the Company and the Trustee, including any successor by
operation of law. Except in connection with a transaction involving the Company
that is permitted under Article VIII and pursuant to which the assignee agrees
in writing to perform the Company's obligations hereunder, the Company shall
not assign its obligations hereunder.
SECTION 1.9 Severability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and there shall be deemed substituted for the provision at issue a valid, legal
and enforceable provision as similar as possible to the provision at issue.
SECTION 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto (including the Trustee
for the Holders of the Securities) and their permitted successors and assigns,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.11 Governing Law.
This Indenture and the rights and obligations of each of the Holders,
the Company and the Trustee shall be construed and enforced in accordance with
and governed by the laws of the State of New York without reference to its
conflict of laws provisions (other than Section 5-1401 of the General
Obligations Law).
SECTION 1.12 Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE
COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE
SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE.
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SECTION 1.13 Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or the Securities) payment of interest, premium, if
any, principal or other amounts in respect of such Security shall not be made
on such date, but shall be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day), except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity.
ARTICLE II.
Security Forms
SECTION 2.1 Form of Security.
Any Security issued hereunder shall be in substantially the following
form:
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ANTHRACITE CAPITAL, INC.
[Rule 144a Global][Regulation S Global] Senior Note due 2017
No. [R-1][S-1] $ Up to [__]
CUSIP NO: [__________]
Anthracite Capital, Inc., a Maryland corporation (hereinafter
called the "Company," which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. as nominee on behalf of The Depository
Trust Company, or registered assigns, the principal sum of Fifty
Million Dollars ($50,000,000) or such lesser principal amount
represented hereby as may be set forth in Schedule A hereto in
accordance with the Indenture on July 30, 2017. The Company further
promises to pay interest on said principal sum from May 29, 2007, or
from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly in arrears on July 30, October
30, January 30 and April 30 of each year, commencing July 30, 2007, or
if any such day is not a Business Day, on the next succeeding Business
Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after such Interest
Payment Date until such next succeeding Business Day), except that, if
such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on the Interest
Payment Date, at a fixed rate equal to 7.772% per annum to, but
excluding, the Interest Payment Date on July 30, 2012 and thereafter
at a variable rate equal to 3-month LIBOR plus 2.55% per annum, until
the principal hereof is paid or duly provided for or made available
for payment; provided, that any overdue principal, premium, if any,
and any overdue installment of interest shall bear Additional Interest
at a fixed rate equal to 7.772% through the interest payment date in
July 2012 per annum to, but excluding, the Interest Payment Date on
July 30, 2012 and thereafter at a variable rate equal to 3-month LIBOR
plus 2.55% per annum, (to the extent that the payment of such
Additional Interest shall be legally enforceable), compounded
quarterly from the dates such amounts are due to but excluding the
date such amounts are paid or made available for payment, and such
interest shall be payable on demand.
The amount of interest payable for interest periods (i) to
but excluding the Interest Payment Date on July 30, 2012, shall be
computed on the basis of a 360-day year of twelve 30-day months and
(ii) from and including the Interest Payment Date on July 30, 2012
shall be computed on the basis of a 360-day year and the actual number
of days elapsed in the relevant interest period. The interest so
payable, and punctually paid or duly provided for on any Interest
Payment Date shall, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest installment. Any such interest not so
punctually paid or duly provided for on the Interest Payment Date
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shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than ten (10) days prior to
such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of principal of, premium, if any, and interest on
this Security shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of principal, premium,
if any, and interest due at the Maturity of this Security shall be
made at the Place of Payment upon surrender of such Securities to the
Paying Agent, and payments of interest shall be made, subject to such
surrender where applicable, by wire transfer at such place and to such
account at a banking institution in the United States as may be
designated in writing to the Paying Agent at least ten (10) Business
Days prior to the date for payment by the Person entitled thereto
unless proper written transfer instructions have not been received by
the relevant record date, in which case such payments shall be made by
check mailed to the address of such Person as such address shall
appear in the Security Register.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has duly executed this certificate on
this ____ day of _____________, 2007.
ANTHRACITE CAPITAL, INC.
By:________________________
Name:
Title:
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[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities
of the Company (the "Securities") issued under the Indenture, dated as
of May 29, 2007 (the "Indenture"), between the Company and Wilmington
rust Company, as Trustee (in such capacity, the "Trustee," which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Company may, on any Interest Payment Date, at its option
and in accordance with the Indenture, on or after July 30, 2012 and
subject to the terms and conditions of Article XI of the Indenture,
redeem this Security in whole at any time or in part from time to time
at a Redemption Price equal to one hundred percent (100%) of the
principal amount hereof, together, in the case of any such redemption,
with accrued interest, including any Additional Interest, to but
excluding the date fixed as the Redemption Date.
In addition, upon the occurrence and during the continuation
of a Special Event, the Company may, at its option and in accordance
with the Indenture, redeem this Security, in whole but not in part,
subject to the terms and conditions of Article XI of the Indenture at
a Redemption Price equal to one hundred and five percent (105%) of the
principal amount hereof, together, in the case of any such redemption,
with accrued interest, including any Additional Interest, if any, to
but excluding the date fixed as the Redemption Date.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than sixty (60)
days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Security.
The Indenture requires the Company to offer to purchase
Securities from the Holders upon the occurrence of a Change of Control
Event at a purchase price equal to one hundred percent (100%) of the
principal amount hereof together, in the case of any such purchase,
with accrued interest, including any Additional Interest, to but
excluding the date fixed as the Change of Control Purchase Date.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a
supplemental indenture or
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indentures for the purpose of modifying in any manner the rights and
obligations of the Company and of the Holders of the Securities, with
the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities. The Indenture also contains
provisions permitting Holders of specified percentages in principal
amount of the Securities, on behalf of the Holders of all Securities,
to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture nor any provision of
this Security or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of and any premium, if any, and interest, including any
Additional Interest (to the extent legally enforceable), on this
Security at the times, place and rate and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Securities Register upon surrender of this Security
for registration of transfer at the office or agency of the Company
maintained for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Securities Registrar and duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing and, thereupon, one
or more new Securities of like tenor of authorized denominations and
for the same aggregate principal amount will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in minimum denominations of $100,000 and any integral multiple
of $2,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities are exchangeable
for a like aggregate principal amount of Securities and of like tenor
of a different authorized denomination as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any expense, tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
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The Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary. The Company and, by
its acceptance of this Security or a beneficial interest herein, the
Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax
purposes, it is intended that this Security constitute indebtedness.
This Security shall be construed and enforced in accordance
with and governed by the laws of the State of New York, without
reference to its conflict of laws provisions (other than Section
5-1401 of the General Obligations Law).
SECTION 2.2 Restricted Legend.
(a) Any Security issued hereunder shall bear a legend in substantially
the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED
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(THE "SECURITIES ACT"), AND SUCH SECURITIES, AND ANY INTEREST THEREIN,
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE
OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY, (II)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V)
PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF
(III) OR (V), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN
OPINION OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO IT AND (B)
THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES,
OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL
AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $2,000 IN EXCESS THEREOF
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST
ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH
- 21 -
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH
SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.
(b) The above legends shall not be removed from any Security unless
there is delivered to the Company satisfactory evidence, which may include an
Opinion of Counsel, as may be reasonably required to ensure that any future
transfers thereof may be made without restriction under or violation of the
provisions of the Securities Act and other applicable law. Upon provision of
such satisfactory evidence, the Company shall execute and deliver to the
Trustee, and the Trustee shall deliver, upon receipt of a Company Order
directing it to do so, a Security that does not bear the legend.
SECTION 2.3 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture
Dated:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:______________________________________
Authorized signatory
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SECTION 2.4_______ Temporary Securities.
(a) Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
(b) If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute, and the Trustee shall
authenticate and deliver in exchange therefor, one or more definitive
Securities of any authorized denominations having the same Original Issue Date
and Stated Maturity and having the same terms as such temporary Securities.
Until so exchanged, the temporary Securities shall, in all respects, be
entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.5 Definitive Securities.
The Securities issued on the Original Issue Date shall be in the form
of global securities or in definitive form. Any definitive Securities shall be
printed, lithographed or engraved, or produced by any combination of these
methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
ARTICLE III.
The Securities
SECTION 3.1 Payment of Principal and Interest.
(a) The unpaid principal amount of the Securities shall bear interest
at the fixed rate equal to 7.772% per annum to but excluding the Interest
Payment Date on July 30 2012 and thereafter at a variable rate equal to LIBOR
plus 2.55% per annum (provided that the applicable interest rate on such
overdue principal, premium, if any, until paid or duly provided for, such
interest to accrue from the Original Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, and
any overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at the fixed rate equal to 7.772% per annum to
but excluding the Interest Payment Date on July 30 2012 and thereafter at a
variable rate equal to LIBOR plus 2.55% per annum (to the extent that the
payment of such interest shall be legally enforceable), compounded quarterly
from the dates such amounts are due
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to but excluding the date such amounts are paid or funds for the payment
thereof are made available for payment.
(b) Interest and Additional Interest on any Security that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, except that interest and any Additional Interest payable on
the Stated Maturity (or any date of principal repayment upon early maturity) of
the principal of a Security or on a Redemption Date shall be paid to the Person
to whom principal is paid. The initial payment of interest on any Security that
is issued between a Regular Record Date and the related Interest Payment Date
shall be payable as provided in such Security.
(c) Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Securities
(such interest, "Defaulted Interest") shall forthwith cease to be payable to
the registered Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in paragraph (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Record Date for the payment of such Defaulted Interest
(a "Special Record Date"), which shall be fixed in the following
manner: At least thirty (30) days prior to the date of the proposed
payment, the Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment and, at the same time, the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest, which shall be not
more than fifteen (15) days and not less than ten (10) days prior to
the date of the proposed payment and not less than ten (10) days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid, to
each Holder of a Security at the address of such Holder as it appears
in the Securities Register not less than ten (10) days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are
registered on such Special Record Date; or
(ii) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed and,
upon such notice as may be required by such exchange (or by the
Trustee if the Securities are not listed), if, after notice given by
the
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Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d) Payments of interest on the Securities shall include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Securities shall be computed and paid on the basis of a (i)
360-day year of twelve 30-day months for interest periods to but excluding the
Interest Payment Date on July 30, 2012 and (ii) a 360-day year and the actual
number of days elapsed in the relevant interest period thereafter.
(e) Payment of principal of and premium, if any, and interest on the
Securities shall be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payments of principal, premium, if any, and interest due at the
Maturity of such Securities shall be made at the Place of Payment upon
surrender, of such Securities to the Paying Agent and payments of interest
shall be made subject to such surrender where applicable, by wire transfer at
such place and to such account at a banking institution in the United States as
may be designated in writing to the Paying Agent at least ten (10) Business
Days prior to the date for payment by the Person entitled thereto, unless
proper written transfer instructions have not been received by the relevant
record date, in which case such payments shall be made by check mailed to the
address of such Person as such address shall appear in the Security Register.
(f) Subject to the foregoing provisions of this Section 3.1, each
Security delivered under this Indenture upon transfer of, or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Security.
SECTION 3.2 Denominations.
The Securities shall be in registered form without coupons and shall
be issuable in minimum denominations of $100,000 and any integral multiple of
$2,000 in excess thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
(a) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities in an aggregate principal
amount (including all then Outstanding Securities) not in excess of Fifty
Million Dollars ($50,000,000) executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon:
(i) a copy of any Board Resolution relating thereto; and
(ii) an Opinion of Counsel stating that (i) such Securities,
when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute, and the Indenture constitutes,
valid and legally binding obligations of the Company each enforceable
in
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accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; (2) the Securities have been duly
authorized and executed by the Company and have been delivered to the
Trustee for authentication in accordance with this Indenture; (3) the
Securities are not required to be registered under the Securities Act;
and (4) the Indenture is not required to be qualified under the Trust
Indenture Act.
(b) The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents. The signature of any of
these officers on the Securities may be manual or facsimile. Securities bearing
the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
(c) No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.8, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
(d) Each Security shall be dated the date of its authentication.
SECTION 3.4 Global Securities.
(a) The Securities shall be issued in the form of one or more Global
Securities registered in the name of the Depositary designated by the Company
or its nominee and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged, in whole or in part, for registered Securities, and
no transfer of a Global Security, in whole or in part, may be registered in the
name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary advises the Trustee and the Company
in writing that such Depositary is no longer willing or able to properly
discharge its responsibilities as Depositary with respect to such Global
Security and no qualified successor is appointed by the Company within ninety
(90) days of receipt by the Company of such notice, (ii) such Depositary ceases
to be a clearing agency registered under the Exchange Act and no successor is
appointed by the Company within ninety (90) days after obtaining knowledge of
such event, (iii) the Company executes and delivers to the Trustee a Company
Order stating that the Company elects to terminate the book-entry system
through the Depositary or (iv) an Event
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of Default shall have occurred and be continuing. Upon the occurrence of any
event specified in clause (i), (ii), (iii) or (iv) above, the Trustee shall
notify the Depositary and instruct the Depositary to notify all owners of
beneficial interests in such Global Security of the occurrence of such event
and of the availability of Securities to such owners of beneficial interests
requesting the same. The Trustee may conclusively rely, and be protected in
relying, upon the written identification of the owners of the beneficial
interests furnished by the Depositary and shall not be liable for any delay
resulting from a delay by the Depositary. Upon the issuance of such Securities
and the registration in the Securities Register of such Securities in the names
of the Holders of the beneficial interests therein the Trustees shall recognize
such holders of beneficial interests as Holders.
(c) If any Global Security is to be exchanged for other Securities or
canceled in part, or if another Security is to be exchanged in whole or in part
for a beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as provided in
this Article III or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to (x) the portion thereof to be so exchanged or
canceled or (y) the principal amount of such other Security to be so exchanged
for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Trustee, in accordance with the Applicable Depositary Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security by the Depositary accompanied by registration
instructions, the Company shall execute, and the Trustee shall authenticate and
deliver, any Securities issuable in exchange for such Global Security (or any
portion thereof) in accordance with the instructions of the Depositary. The
Trustee shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Depositary
Procedures. Accordingly, any such owner's beneficial interest in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Depositary Participants. The Securities Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this Indenture
relating to a Global Security (including the payment of principal and interest
thereon and the giving of instructions or directions by owners of beneficial
interests therein and the giving of notices) as the sole Holder of the Security
and shall have no obligations to the owners of beneficial interests therein.
Neither the Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
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(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Depositary Participants.
(g) No holder of any beneficial interest in any Global Security held
on its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a Depositary and
such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as
Holder of any Security.
(h) The Securities may only be transferred to (i) the Company, (ii) a
"qualified institutional buyer" (as defined in Rule 144A of the Securities Act)
who is also a "Qualified Purchaser" (as such term is defined in Section
2(a)(51) of the Investment Company Act), (iii) outside the United States in an
offshore transaction in accordance with Regulation S under the Securities Act,
(iv) pursuant to an effective registration statement under the Securities Act
or (v) pursuant to another exemption form registration under the Securities
Act.
SECTION 3.5 Registration, Transfer and Exchange Generally.
(a) The Trustee shall cause to be kept at the Corporate Trust Office a
register (the "Securities Register") in which the registrar and transfer agent
with respect to the Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee shall,
at all times, also be the Securities Registrar. The provisions of Article VI
shall apply to the Trustee in its role as Securities Registrar.
(b) Subject to compliance with Section 2.2(b), upon surrender for
registration of transfer of any Security at the offices or agencies of the
Company designated for that purpose, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees one or more new Securities of any authorized denominations of like
tenor and aggregate principal amount.
(c) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations of like tenor and aggregate
principal amount upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
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(d) All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(e) Every Security presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, or duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
(f) No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any expense, tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities.
(g) Neither the Company nor the Trustee shall be required pursuant to
the provisions of this Section 3.5(g): (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
fifteen (15) days before the day of selection for redemption of Securities
pursuant to Article XI and ending at the close of business on the day of
mailing of the notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except,
in the case of any such Security to be redeemed in part, any portion thereof
not to be redeemed.
(h) The Company shall designate an office or offices or agency or
agencies where Securities may be surrendered for registration or transfer or
exchange. The Company initially designates the Corporate Trust Office as its
office and agency for such purposes. The Company shall give prompt written
notice to the Trustee and to the Holders of any change in the location of any
such office or agency.
(i) Neither the Trustee nor the Securities Registrar shall be
responsible for ascertaining whether any transfer hereunder complies with the
registration provisions of or any exemptions from the Securities Act,
applicable state securities laws or the applicable laws of any other
jurisdiction, ERISA, the Code, or the Investment Company Act; provided, that if
a certificate is specifically required by the express terms of this Section 3.5
to be delivered to the Trustee or the Securities Registrar by a Holder or
transferee of a Security, the Trustee and the Securities Registrar shall be
under a duty to receive and examine the same to determine whether or not the
certificate substantially conforms on its face to the requirements of this
Indenture and shall promptly notify the party delivering the same if such
certificate does not comply with such terms.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the
Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
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(b) If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by it to save
each of the Company and the Trustee harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's written request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and aggregate principal amount as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
(c) If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company, in its discretion,
may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any expense, tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security issued pursuant to this Section 3.6 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
(f) The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
interest on such Security and for all other purposes whatsoever, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.8 Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may, at any time, deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section 3.8, except as expressly permitted by this Indenture. All canceled
Securities shall be retained or disposed of by the Trustee in accordance with
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its customary practices and, if requested, the Trustee shall deliver to the
Company a certificate of such disposition.
SECTION 3.9 Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by
its acceptance or acquisition of a Security or a beneficial interest therein,
the Holder of, and any Person that acquires a direct or indirect beneficial
interest in, such Security intend and agree to treat such Security as
indebtedness of the Company for United States Federal, state and local tax
purposes. The provisions of this Indenture shall be interpreted to further this
intention and agreement of the parties.
SECTION 3.10 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE IV.
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities that have been mutilated, destroyed, lost
or stolen and that have been replaced or paid as provided in Section
3.6 and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust as
provided in Section 10.2) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
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(B) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of subclause (ii)(A), (B) or (C) above,
has deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose (x) an amount in the currency or
currencies in which the Securities are payable, (y) Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an
amount or (z) a combination thereof, in each case, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest (including any Additional
Interest) to the date of such deposit (in the case of Securities that
have become due and payable) or to the Stated Maturity (or any date of
principal repayment upon early maturity) or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
protections to the Trustee under Article VI, obligations of the Company to the
Trustee under Section 6.6, the obligations of the Company to any Authenticating
Agent under Section 6.11 and, if money shall have been deposited with the
Trustee pursuant to subclause (a)(ii) of this Section 4.1, the obligations of
the Trustee under Section 4.2 and Section 10.2(e) shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of Section 10.2(e), all money deposited with
the Trustee pursuant to Section 4.1 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment in accordance with Section 3.1, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and any premium and interest (including any Additional Interest) for the
payment of which such money or obligations have been deposited with or received
by the Trustee.
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ARTICLE V.
Remedies
SECTION 5.1 Events of Default.
"Event of Default" means, wherever used herein with respect to the
Securities, any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security,
including any Additional Interest in respect thereof, when it becomes due and
payable, and continuance of such default for a period of thirty (30) days; or
(b) default in the payment of the principal of or any premium on any
Security at its Maturity; or
(c) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture and continuance of such default or breach for
a period of thirty (30) days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least twenty five percent (25%) in aggregate principal
amount of the Outstanding Securities a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of a
decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of sixty (60) consecutive days; or
(e) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by the Company,
or the consent by the Company to the filing, of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due and its willingness to be
adjudicated a bankrupt or insolvent, or the taking of corporate action by the
Company in furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
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(a) If an Event of Default occurs and is continuing, then and in every
such case, the Trustee or the Holders of not less than twenty five percent
(25%) in aggregate principal amount of the Outstanding Securities may declare
the principal amount of all the Securities to be due and payable immediately by
a notice in writing to the Company (and to the Trustee if given by Holders)
and, upon any such declaration, the principal amount of and the accrued
interest (including any Additional Interest) on all the Securities shall become
immediately due and payable.
(b) At any time after such a declaration of acceleration with respect
to Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter provided in this
Article V, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all
Securities,
(B) any accrued Additional Interest on all Securities,
(C) the principal of and any premium on any Securities
that have become due otherwise than by such
declaration of acceleration and interest (including
any Additional Interest) thereon at the rate borne
by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee and its
agents and counsel; and
all Events of Default with respect to Securities, other than
the non-payment of the principal of Securities that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that if:
(i) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest becomes due and payable and such default continues for a
period of thirty (30) days or
(ii) default is made in the payment of the principal of and
any premium on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for
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principal of, any premium and interest (including any Additional Interest) on
and, in addition thereto, all amounts owing the Trustee under Section 6.6.
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree, may enforce
the same against the Company or any other obligor upon such Securities and may
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities
wherever situated.
(c) If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may, in its discretion, proceed to protect and enforce
its rights and the rights of the Holders of Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture, in aid of the exercise of any power granted
herein or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or similar judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized hereunder in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same, and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to first pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts owing the
Trustee, any predecessor Trustee and other Persons under Section 6.6.
SECTION 5.5 Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture and/or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of all the amounts owing the Trustee,
any predecessor Trustee and other Persons under Section 6.6, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 5.6 Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a
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custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding for sixty (60) days; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such sixty (60)-day period by the Holders of a majority
in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing itself
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Securities, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.7 Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to the Securities pursuant to this Article V shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or any premium
or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, any predecessor
Trustee and other Persons under Section 6.6;
SECOND: Subject to Article XII, to the payment of the amounts then due
and unpaid upon the Securities for principal and any premium and interest
(including any Additional Interest) in respect of which, or for the benefit of
which, such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and any premium and interest (including any Additional Interest),
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium on such Security at its
Maturity and payment of interest (including any Additional Interest) on such
Security when due and payable and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then, and in every such case, the
Company, the Trustee and such Holders shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Company and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.6(f), no right or remedy
herein conferred upon or reserved to the Trustee or the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder or
otherwise shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article V or by
law to the Trustee or to the Holders by Section 5.8 may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or the
Holders, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule of law or
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction, and
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(c) subject to the provisions of Section 6.2, the Trustee shall have
the right to decline to follow such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, reasonably determine that the
proceeding so directed would be unjustly prejudicial to the Holders not joining
in any such direction or would involve the Trustee in personal liability.
SECTION 5.13 Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may waive any past Event of Default
hereunder and its consequences except an Event of Default:
(i) in the payment of the principal of or any premium or
interest (including any Additional Interest) on any outstanding
Security (unless such Event of Default has been cured and the Company
has paid to or deposited with the Trustee a sum sufficient to pay all
installments of interest (including any Additional Interest) due and
past due and all principal of and any premium on all Securities due
otherwise than by acceleration); or
(ii) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of each
Holder of any Outstanding Security.
(b) Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities.
(c) Upon any such waiver, such Event of Default shall cease to exist
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his or her acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply (i) to any suit
instituted by the Trustee, (ii) to any suit instituted by any Holder or group
of Holders holding in the aggregate more than ten percent (10%) in aggregate
principal amount of the Outstanding Securities or (iii) to any suit instituted
by any Holder for the enforcement of the payment of the principal of or any
premium on the Security after the Stated Maturity or any interest (including
any Additional Interest) on any Security after it is due and payable.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not, at any time, insist upon, plead or in any manner whatsoever claim
or take the benefit or advantage of
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any usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.16 Repurchase at the Option of Holders upon Change of
Control.
Upon the occurrence of a Change of Control (as hereinafter defined)
that results in a downgrade of the Company's corporate credit rating (which,
for the avoidance of doubt, shall not include the ratings on any securitized
debt issued by the Company or the affiliates of the Company) by two or more of
(i) Standard & Poor's, a division of The McGraw-Hill Companies, Inc. (ii)
Moody's Investors Service and (iii) Fitch Ratings, Ltd., each Holder shall have
the right to require the Company to purchase all or a portion (in integral
multiples of $2,000) of such Holder's Outstanding Securities at a purchase
price in cash, and in immediately available funds, equal to 100% of the
principal amount thereof Outstanding on the date of purchase, plus accrued and
unpaid interest and Additional Interest, if any, to but excluding the date of
purchase. Each such repurchase shall be made in accordance with and each such
right of repurchase shall be subject to the terms of this Section 5.16.
For purposes of this Section 5.16, "Change of Control" means: (i) the
consummation of any transaction (including, without limitation, any merger or
other business combination) the result of which is that any "person" (as such
term is used in Sections 13(d)(3) of the Exchange Act), including a "group" as
defined in Section 13(d)(3) of the Exchange Act (but excluding a director or
other fiduciary holding securities under an employee benefit plan of the
Company), becomes as a result of such transaction the beneficial owner of
Equity Interests of the Company having at least fifty percent (50%) of the
total number of votes that are entitled to be cast for the election of
directors of the Company; or (ii) the sale of all or substantially all of the
assets of the Company and its subsidiaries, taken as a whole, to any "person"
(as such term is used in Sections 13(d)(3) of the Exchange Act) other than the
Company or one of its subsidiaries.
Within thirty (30) days following the date upon which the Change of
Control occurred, the Company shall send, by first-class mail, an offer (the
"Change of Control Offer") to each Holder, with a copy to the Trustee, which
offer shall govern the terms of any repurchase made in accordance with this
Section 5.16. The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. Such notice shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 5.16 and that, to the extent lawful, all Securities validly tendered
and not withdrawn shall be accepted for payment;
(ii) the purchase date, which must be no earlier than thirty (30) days
nor later than sixty (60) days from the date such notice is mailed, other than
as may be required by law (the "Change of Control Payment Date");
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(iii) that any Security not tendered shall continue to accrue interest
and, if applicable, Additional Interest;
(iv) that, unless the Company defaults in making payment therefor, any
Security accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest and Additional Interest, if applicable, after the
Change of Control Payment Date; (v) that Holders electing, in their sole
discretion, to have a Security or any portion thereof purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed (or, in the case of an interest in a Global Security, to
provide written notice of such election) to the Paying Agent at the address
specified in the notice prior to the close of business on the third (3rd)
Business Day prior to the Change of Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than five (5) Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such Holder
is withdrawing its election to have such Securities purchased;
(vii) that Holders whose Securities are purchased only in part shall
be issued new Securities in a principal amount equal to the unpurchased portion
of the Securities surrendered; provided that each Security purchased and each
new security issued shall be in an original principal amount of $100,000 or
integral multiples of $2,000 in excess thereof, and such new Securities will be
issued in the name of the Holder thereof upon cancellation of the original
Security (or appropriate adjustments to the amount and beneficial interests in
a Global Security will be made); and
(viii) other circumstances and facts reasonably deemed relevant by the
Company regarding such Change of Control.
If any of the Securities subject to the Change of Control Offer is in
the form of a Global Security, then the Company shall modify such notice to the
extent necessary to comply with the procedures of the Depositary applicable to
repurchases.
On or before the Change of Control Payment Date, the Company shall, to
the extent lawful (i) accept for payment Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent an amount of money sufficient to pay the purchase price plus
accrued interest and Additional Interest, if any, of all Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
the Securities so accepted together with an Officers' Certificate stating the
aggregate principal amount of Securities or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to the Holders so tendered
the purchase price for such Securities and the Company shall promptly issue and
the Trustee shall promptly (but in any case not later than five (5) Business
Days after the Change of Control Payment Date) authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Security equal in
principal amount to any unpurchased portion of the Securities surrendered;
provided that each such new Security shall be
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in a principal amount of $100,000 or an integral multiple of $2,000 in excess
thereof. Any Securities not so accepted shall be promptly mailed by the Company
to the Holders thereof. For purposes of this Section 5.16, the Trustee shall
act as the Paying Agent.
Any amounts remaining after the purchase of Securities pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
Neither the Board of Directors of the Company nor the Trustee may
waive the Company's obligation to offer to purchase the Securities pursuant to
this Section 5.16.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Section 5.16, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the provisions of this Section 5.16 by virtue thereof.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Securities validly tendered and not properly
withdrawn under such Change of Control Offer.
ARTICLE VI.
The Trustee
SECTION 6.1 Corporate Trustee Required.
There shall at all times be a Trustee hereunder with respect to the
Securities. The Trustee shall be a corporation or national banking association
organized and doing business under the laws of the United States or of any
state thereof, authorized to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or state authority and having an office within the
United States. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of such supervising or examining
authority, then, for the purposes of this Section 6.1, the combined capital and
surplus of such entity shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.1, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VI.
SECTION 6.2 Certain Duties and Responsibilities.
Except during the continuance of an Event of Default:
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(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; provided, that in the case of any such certificates
or opinions that by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they substantially
conform on their face to the requirements of this Indenture.
(b) If an Event of Default known to the Trustee has occurred and is
continuing, the Trustee shall, prior to the receipt of directions, if any, from
the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities, exercise such of the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 6.2. To the extent
that, at law or in equity, the Trustee has duties and liabilities relating to
the Holders, the Trustee shall not be liable to any Holder for the Trustee's
good faith reliance on the provisions of this Indenture. The provisions of this
Indenture, to the extent that they restrict the duties and liabilities of the
Trustee otherwise existing at law or in equity, are agreed by the Company and
the Holders to replace such other duties and liabilities of the Trustee.
(d) No provisions of this Indenture shall be construed to relieve the
Trustee from liability with respect to matters that are within the authority of
the Trustee under this Indenture for its own negligent action, negligent
failure to act or willful misconduct, except that:
(i) the Trustee shall not be liable for any error or judgment
made in good faith by an authorized officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee under this Indenture; and
- 42 -
(iii) the Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed with the
Company and money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION 6.3 Notice of Defaults.
Within ninety (90) days after the occurrence of any default actually
known to the Trustee, the Trustee shall give the Holders notice of such default
unless such default shall have been cured or waived; provided, that in the case
of any default of the character specified in Section 5.1(c), no such notice to
Holders shall be given until at least thirty (30) days after the occurrence
thereof. For the purpose of this Section 6.3, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION 6.4 Certain Rights of Trustee.
Subject to the provisions of Section 6.2:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting in good faith and in accordance with the terms
hereof upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note or
other paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Indenture the Trustee
is required to decide between alternative courses of action, (ii) in construing
any of the provisions of this Indenture the Trustee finds ambiguous or
inconsistent with any other provisions contained herein or (iii) the Trustee is
unsure of the application of any provision of this Indenture, then, except as
to any matter as to which the Holders are entitled to decide under the terms of
this Indenture, the Trustee shall deliver a notice to the Company requesting
the Company's written instruction as to the course of action to be taken and
the Trustee shall take such action, or refrain from taking such action, as the
Trustee shall be instructed in writing to take, or to refrain from taking, by
the Company; provided, that if the Trustee does not receive such instructions
from the Company within ten (10) Business Days after it has delivered such
notice or such reasonably shorter period of time set forth in such notice the
Trustee may, but shall be under no duty to, take such action, or refrain from
taking such action, as the Trustee shall deem advisable and in the best
interests of the Holders, in which event the Trustee shall have no liability
except for its own negligence, bad faith or willful misconduct;
(c) any request or direction of the Company shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(d) the Trustee may consult with counsel (which counsel may be counsel
to the Trustee, the Company or any of its Affiliates, and may include any of
its employees) and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
- 43 -
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses (including reasonable attorneys' fees and expenses)
and liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
note or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent, attorney, custodian
or nominee appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action with respect to enforcing any remedy or
right hereunder, the Trustee (i) may request instructions from the Holders
(which instructions may only be given by the Holders of the same aggregate
principal amount of Outstanding Securities as would be entitled to direct the
Trustee under this Indenture in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such action until
such instructions are received and (iii) shall be protected in acting in
accordance with such instructions;
(i) except as otherwise expressly provided by this Indenture, the
Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Indenture;
(j) without prejudice to any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with any bankruptcy, insolvency or other proceeding referred to in
clauses (d) or (e) of the definition of Event of Default, such expenses
(including legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy laws or law relating to creditors rights
generally;
(k) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, conclusively rely upon an Officers' Certificate addressing such matter,
which, upon receipt of such request, shall be promptly delivered by the
Company;
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(l) the Trustee shall not be charged with knowledge of any Event of
Default unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge or (ii) the Trustee shall have received notice thereof from
the Company or a Holder; and
(m) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Securities Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also be
afforded such Paying Agent, Authenticating Agent, or Securities Registrar.
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or such
other agent.
SECTION 6.6 Compensation; Reimbursement; Indemnity.
(a) The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time pursuant
to a separate fee agreement (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of
an express trust);
(ii) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad
faith or willful misconduct; and
(iii) to the fullest extent permitted by applicable law, to
indemnify the Trustee and its Affiliates, and their officers,
directors, shareholders, agents, representatives and employees for,
and to hold them harmless against, any loss, damage, liability, tax
(other than income, franchise or other taxes imposed on amounts paid
pursuant to (i) or (ii) hereof), penalty, expense or claim of any kind
or nature whatsoever incurred without negligence, bad faith or willful
misconduct on its part arising out of or in connection with the
acceptance or administration of this trust or the performance of the
Trustee's duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
(b) To secure the Company's payment obligations in this Section 6.6,
the Company hereby grants and pledges to the Trustee and the Trustee shall have
a lien prior to the Securities on all money or property held or collected by
the Trustee, other than money or property held in
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trust to pay principal and interest on particular Securities. Such lien shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee.
(c) The obligations of the Company under this Section 6.6 shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d) In no event shall the Trustee be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(e) In no event shall the Trustee be liable for any failure or delay
in the performance of its obligations hereunder because of circumstances beyond
its control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.
SECTION 6.7 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.8.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company.
(c) Unless an Event of Default shall have occurred and be continuing,
the Trustee may be removed at any time by the Company by a Board Resolution. If
an Event of Default shall have occurred and be continuing, the Trustee may be
removed by an Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities, delivered to the Trustee and to the Company.
(d) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any reason, at
a time when no Event of Default shall have occurred and be continuing, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee, and
such successor Trustee and the retiring Trustee shall comply with the
applicable requirements of Section 6.8. If the Trustee shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any reason, at a time when an Event of Default shall have occurred
and be continuing, the Holders, by an Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities, shall promptly
appoint a successor Trustee, and such successor Trustee and the retiring
Trustee shall comply with the applicable requirements of Section 6.8. If no
successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment within sixty (60) days after the giving of a notice of
resignation by the Trustee or the removal of the Trustee in the manner required
by Section 6.8, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of such Holder and all others similarly
situated, and any
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resigning Trustee may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) The Company shall give notice to all Holders in the manner
provided in Section 1.6 of each resignation and each removal of the Trustee and
each appointment of a successor Trustee. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.8 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, each
successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) of this Section 6.8.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article VI.
SECTION 6.9 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided, that such Person shall be otherwise qualified and
eligible under this Article VI. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation or as otherwise provided above in this
Section 6.9 to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated, and in case any Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee or in the name of such
successor Trustee, and in all cases the certificate of authentication shall
have the full force which it is provided anywhere in the Securities or in this
Indenture that the certificate of the Trustee shall have.
SECTION 6.10 Not Responsible for Recitals or Issuance of Securities.
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The recitals contained herein and in the Securities, except the
Trustee's execution of certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
SECTION 6.11 Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with
respect to the Securities, which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.11 the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 6.11, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.11.
(b) Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such Person shall be otherwise
eligible under this Section 6.11, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, the Trustee may appoint a successor
Authenticating Agent eligible under the provisions of this Section 6.11, which
shall be acceptable to the Company, and shall give notice of such appointment
to all Holders. Any successor Authenticating Agent upon acceptance of its
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appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent.
(d) The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section 6.11 in
such amounts as the Company and the Authenticating Agent shall agree from time
to time.
(e) If an appointment of an Authenticating Agent is made pursuant to
this Section 6.11, the Securities may have endorsed thereon as an alternative
to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities referred to in the within mentioned Indenture.
Dated:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:_______________________________________
Authenticating Agent
By:_______________________________________
Authorized signatory
ARTICLE VII.
Holder's Lists and Reports By Trustee and Company
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than fifteen (15) days prior to
the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
thirty (30) days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than fifteen (15) days prior
to the time such list is furnished,
in each case to the extent such information is in the possession or
control of the Company and has not otherwise been received by the Trustee in
its capacity as Securities Registrar.
SECTION 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its
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capacity as Securities Registrar. The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and privileges of the Trustee shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by the Company.
(a) The Company shall furnish to the Holders and to prospective
purchasers of Securities, upon their request, the information required to be
furnished pursuant to Rule 144A(d)(4) under the Securities Act. The delivery
requirement set forth in the preceding sentence may be satisfied by compliance
with Section 7.3(b) hereof.
(b) The Company shall furnish to each of (i) the Trustee, (ii) the
Holders and to subsequent holders of Securities, and (iii) any beneficial owner
of the Securities reasonably identified to and confirmed by the Company, a duly
completed and executed certificate substantially and substantively in the form
attached hereto as Exhibit A, including the financial statements referenced in
such Exhibit, which certificate and financial statements shall be so furnished
by the Company not later than forty-five (45) days after the end of each of the
first three fiscal quarters of each fiscal year of the Company and not later
than ninety (90) days after the end of each fiscal year of the Company to the
extent such financial statements are not publicly available by such dates via
EDGAR..
(c) If the Company intends to file its annual and quarterly
information with the Securities and Exchange Commission (the "Commission") in
electronic form pursuant to Regulation S-T of the Commission using the
Commission's Electronic Data Gathering, Analysis and Retrieval ("EDGAR")
system, the Company shall notify the Trustee in the manner prescribed herein of
each such annual and quarterly filing. The Trustee is hereby authorized and
directed to access the EDGAR system for purposes of retrieving the financial
information so filed. Compliance with the foregoing shall constitute delivery
by the Company of its financial statements to the Trustee in compliance with
the provisions of Section 314(a) of the Trust Indenture Act, if applicable. The
Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Trustee pursuant to this Section 7.3(c) shall
be solely for purposes of compliance with this Section 7.3(c) and, if
applicable, with Section 314(a) of the Trust Indenture Act. The Trustee's
receipt of such reports, information and documents shall not constitute notice
to it of the content thereof or any matter determinable from the content
thereof, including the Company's compliance with any of its covenants
hereunder, as to which the Trustee is entitled to rely upon Officers'
Certificates.
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ARTICLE VIII.
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) if the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the entity formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance or transfer, or
that leases, the properties and assets of the Company substantially as an
entirety shall be an entity organized and existing under the laws of the United
States of America or any State or Territory thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of and any premium and interest
(including any Additional Interest) on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be performed
or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, any such supplemental indenture comply with
this Article VIII and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee may rely
upon such Officers' Certificate and Opinion of Counsel as conclusive evidence
that such transaction complies with this Section 8.1.
SECTION 8.2 Successor Company Substituted.
(a) Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of its
properties and assets substantially as an entirety to any Person in accordance
with Section 8.1 and the execution and delivery to the Trustee of the
supplemental indenture described in Section 8.1(a), the successor entity formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein; and in the event of any such conveyance or transfer, following the
execution and delivery of such supplemental indenture, the Company shall be
discharged from all obligations and covenants under the Indenture and the
Securities.
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(b) Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities that such successor Person thereafter shall cause to be executed
and delivered to the Trustee on its behalf. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Securities
thereafter to be issued as may be appropriate to reflect such occurrence.
ARTICLE IX.
Supplemental Indentures
SECTION 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(b) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee; or
(c) to cure any ambiguity, to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein,
or to make or amend any other provisions with respect to matters or questions
arising under this Indenture, which shall not be inconsistent with the other
provisions of this Indenture; provided, that such action pursuant to this
clause (c) shall not adversely affect in any material respect the interests of
any Holders; or
(d) to add to the covenants, restrictions or obligations of the
Company or to add to the Events of Default; provided, that such action pursuant
to this clause (c) shall not adversely affect in any material respect the
interests of any Holders; or
(e) to comply with the rules and regulations of any securities
exchange on which any of the Securities may be listed or traded; or
(f) to modify, eliminate or add to any provisions of the Indenture or
the Securities to such extent as shall be necessary to ensure that the
Securities are treated as indebtedness of the
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Company for United States Federal income tax purposes; provided, that such
action pursuant to this clause (d) shall not adversely affect in any material
respect the interests of any Holders.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities under
this Indenture; provided, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security,
(i) change the Stated Maturity of the principal or any
premium of any Security or change the date of payment of any
installment of interest (including any Additional Interest) on any
Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof or
change the place of payment where, or the coin or currency in which,
any Security or interest thereon is payable, or restrict or impair the
right to institute suit for the enforcement of any such payment on or
after such date, or
(ii) reduce the percentage in aggregate principal amount of
the Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with any provision of this
Indenture or of defaults hereunder and their consequences provided for
in this Indenture, or
(iii) modify any of the provisions of this Section 9.2,
Section 5.13 or Section 10.9, except to increase any percentage in
aggregate principal amount of the Outstanding Securities, the consent
of whose Holders is required for any reason, or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security, or
(iv) It shall not be necessary for any Act of Holders under
this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in conclusively relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent herein provided for relating to such action have
been complied with. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects the Trustee's own rights, duties,
indemnities or immunities under this Indenture or otherwise.
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Copies of the final form of each supplemental indenture shall be delivered by
the Trustee at the expense of the Company to each Holder promptly after the
execution thereof.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
IX, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes,
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.5 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required
by the Company, bear a notation in form approved by the Company as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X.
Covenants
SECTION 10.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of the
Securities that it will duly and punctually pay the principal of and any
premium, if any, and interest (including any Additional Interest) on the
Securities in accordance with the terms of the Securities and this Indenture.
SECTION 10.2 Money for Security Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with
respect to the Securities, it will, on or before each due date of the principal
of and any premium or interest (including any Additional Interest) on the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest
(including Additional Interest) so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee in writing of its failure so to act.
(b) Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m., New York City time, on each due date of the
principal of or any premium or interest (including any Additional Interest) on
any Securities, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided in the Trust Indenture Act and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its failure so to act.
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(c) The Company will cause each Paying Agent for the Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.2, that such Paying Agent will (i) comply with the provisions
of this Indenture and the Trust Indenture Act applicable to it as a Paying
Agent and (ii) during the continuance of any default by the Company (or any
other obligor upon the Securities) in the making of any payment in respect of
the Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of and any
premium or interest (including any Additional Interest) on any Security and
remaining unclaimed for two years after such principal and any premium or
interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.3 Statement as to Compliance.
The Company shall deliver to the Trustee, within one hundred and
twenty (120) days after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate covering the preceding calendar year,
stating whether or not to the knowledge of the signers thereof the Company is
in default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder), and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 10.4 Calculation Agent.
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(a) The Company hereby agrees that for so long as any of the
Securities remain Outstanding, there will at all times be an agent appointed to
calculate LIBOR in respect of each Interest Payment Date in accordance with the
terms of Schedule A (the "Calculation Agent"). The Company has initially
appointed the Trustee as Calculation Agent for purposes of determining LIBOR
for each Interest Payment Date. The Calculation Agent may be removed by the
Company at any time. If the Calculation Agent is unable or unwilling to act as
such or is removed by the Company, the Company will promptly appoint as a
replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in Eurodollar deposits in the international Eurodollar
market and which does not control or is not controlled by or under common
control with the Company or its Affiliates. The Calculation Agent may not
resign its duties without a successor having been duly appointed.
(b) The Calculation Agent shall be required to agree that, as soon as
possible after 11:00 a.m. (London time) on each LIBOR Determination Date (as
defined in Schedule A), but in no event later than 11:00 a.m. (London time) on
the Business Day immediately following each LIBOR Determination Date, the
Calculation Agent will calculate the interest rate (the Interest Payment shall
be rounded to the nearest cent, with half a cent being rounded upwards) for the
related Interest Payment Date, and will communicate such rate and amount to the
Company, the Trustee, each Paying Agent and the Depositary. The Calculation
Agent will also specify to the Company the quotations upon which the foregoing
rates and amounts are based and, in any event, the Calculation Agent shall
notify the Company before 5:00 p.m. (London time) on each LIBOR Determination
Date that either: (i) it has determined or is in the process of determining the
foregoing rates and amounts or (ii) it has not determined and is not in the
process of determining the foregoing rates and amounts, together with its
reasons therefor. The Calculation Agent's determination of the foregoing rates
and amounts for any Interest Payment Date will (in the absence of manifest
error) be final and binding upon all parties. For the sole purpose of
calculating the interest rate for the Securities, "Business Day" shall be
defined as any day on which dealings in deposits in Dollars are transacted in
the London interbank market.
SECTION 10.5 [Reserved]
SECTION 10.6 Additional Covenants.
(a) The Company covenants and agrees with each Holder of Securities
that if an Event of Default shall have occurred and be continuing, it shall not
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
Equity Interests, except only to the extent necessary to maintain its status as
a real estate investment trust under the Code, (ii) vote in favor of or permit
or otherwise allow any of its Significant Subsidiaries to declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of any such
Significant Subsidiary's preferred stock or other Equity Interests entitling
the holders thereof to a stated rate of return (for the avoidance of doubt,
whether such preferred stock or other Equity Interests are perpetual or
otherwise) if such proceeds are payable to any third party which is not the
Company or an affiliate of the Company, or (iii) make any payment of principal
of or any interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu in all respects with or
junior in interest to the Securities (other than (a) repurchases, redemptions
or other
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acquisitions of shares of capital stock or other Equity Interests of the
Company or any Significant Subsidiary in connection with (1) any employment
contract, benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, (2) a dividend
reinvestment or stockholder stock purchase plan or (3) the issuance of capital
stock or other Equity Interests of the Company or of such Significant
Subsidiary (or securities convertible into or exercisable for such capital
stock or Equity Interests) as consideration in an acquisition transaction
entered into prior to the Event of Default, (b) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or any
capital stock or Equity Interests of a Significant Subsidiary) for any class or
series of the Company's capital stock (or in the case of a Significant
Subsidiary, any class or series of such Significant Subsidiary's capital stock
or Equity Interests) or any class or series of the Company's indebtedness for
any class or series of the Company's capital stock (or in the case of
indebtedness of a Significant Subsidiary, or any class or series of such
Significant Subsidiary's indebtedness for any class or series of such
Significant Subsidiary's capital stock or Equity Interests), (c) the purchase
of fractional interests in shares of the Company's capital stock (or the
capital stock or Equity Interests of a Significant Subsidiary) pursuant to the
conversion or exchange provisions of such capital stock or Equity Interests or
the security being converted or exchanged, (d) any declaration of a dividend in
connection with any Rights Plan, the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto or (e) any dividend in the form of Equity Interests, warrants,
options or other rights where the dividend Equity Interest or the Equity
Interests issuable upon exercise of such warrants, options or other rights is
the same Equity Interest as that on which the dividend is being paid or ranks
pari passu with or junior to such Equity Interest and any cash payments in lieu
of fractional Equity Interests issued in connection therewith).
(b) Notwithstanding anything to the contrary in this Section 10.6, the
Company agrees to use its reasonable best efforts to meet the requirements to
qualify, effective for the fiscal year ending December 31, 2007 and all future
fiscal years, as a real estate investment trust under the Internal Revenue Code
so long as the Company determines that it is in its best interest to remain
qualified as a real estate investment trust.
(c) The Company hereby covenants and agrees that it shall maintain, as
of the end of each fiscal quarter during which the Securities are Outstanding,
(i) Tangible Net Worth of at least $400,000,000 and (ii) a Debt-to-Total
Capitalization Ratio of 95% or less.
SECTION 10.7 Waiver of Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition contained in Section 10.6 if, before or after the time
for such compliance, the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.8 Treatment of Securities.
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The Company will treat the Securities as indebtedness, and the
amounts, other than payments of principal, payable in respect of the principal
amount of such Securities as interest, for all U.S. federal income tax
purposes. All payments in respect of the Securities will be made free and clear
of U.S. withholding tax to any beneficial owner thereof that has provided an
Internal Revenue Service Form W-9 or W-8BEN (or any substitute or successor
form) establishing its U.S. or non-U.S. status, respectively, for U.S. federal
income tax purposes, or any other applicable form establishing a complete
exemption from U.S. withholding tax.
ARTICLE XI.
Redemption of Securities
SECTION 11.1 Optional Redemption.
The Company may, at its option, on any Interest Payment Date, on or
after July 30, 2012, redeem the Securities in whole at any time or in part from
time to time, at a Redemption Price equal to one hundred percent (100%) of the
principal amount thereof (or of the redeemed portion thereof, as applicable),
together, in the case of any such redemption, with accrued and unpaid interest,
including any Additional Interest, to but excluding the date fixed for as the
Redemption Date (the "Optional Redemption Price").
SECTION 11.2 Special Event Redemption
Prior to July 30, 2012, upon the occurrence and during the
continuation of a Special Event, the Company may, at its option, redeem the
Securities, in whole but not in part, at a Redemption Price equal to one
hundred and five percent (105%) of the principal amount thereof, together, in
the case of any such redemption, with accrued and unpaid interest, including
any Additional Interest, to but excluding the date fixed as the Redemption Date
(the "Special Redemption Price").
SECTION 11.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities, in whole or in
part, shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less than
forty-five (45) days and not more than seventy-five (75) days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such date and of the principal amount of the
Securities to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.4. In the case of
any redemption of Securities, in whole or in part, (a) prior to the expiration
of any restriction on such redemption provided in this Indenture or the
Securities or (b) pursuant to an election of the Company which is subject to a
condition specified in this Indenture or the Securities, the Company shall
furnish the Trustee with an Officers' Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
SECTION 11.4 Selection of Securities to be Redeemed.
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(a) If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected and redeemed on a pro rata basis
not more than sixty (60) days prior to the Redemption Date by the Trustee from
the Outstanding Securities not previously called for redemption, provided, that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
(b) The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security that has been or is to be redeemed.
(c) The provisions of paragraphs (a) and (b) of this Section 11.4
shall not apply with respect to any redemption affecting only a single
Security, whether such Security is to be redeemed in whole or in part. In the
case of any such redemption in part, the unredeemed portion of the principal
amount of the Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Security.
SECTION 11.5 Notice of Redemption.
(a) Notice of redemption shall be given not later than the thirtieth
(30th) day, and not earlier than the sixtieth (60th) day, prior to the
Redemption Date to each Holder of Securities to be redeemed, in whole or in
part.
(b) With respect to Securities to be redeemed, in whole or in part,
each notice of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price, as calculated by the Company,
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the fifth Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Securities to be
redeemed;
(iv) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that any interest (including any Additional Interest) on such Security
or such portion, as the case may be, shall cease to accrue on and
after said date; and
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(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
(c) Notice of redemption of Securities to be redeemed, in whole or in
part, at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable. The notice, if mailed in the manner provided above,
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, a failure to give such notice by mail
or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION 11.6 Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.5, the
Company will deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.2) an amount of money sufficient to pay
the Redemption Price of, and any accrued interest (including any Additional
Interest) on, all the Securities (or portions thereof) that are to be redeemed
on that date.
SECTION 11.7 Payment of Securities Called for Redemption.
(a) If any notice of redemption has been given as provided in Section
11.5, the Securities or portion of Securities with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment specified
in such notice, the Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date.
(b) Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and any premium on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ANTHRACITE CAPITAL, INC.
By: /s/ Chris Milner
--------------------------------
Name: Chris Milner
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY, AS TRUSTEE
By: /s/ W.T. Morris II
--------------------------------
Name: W.T. Morris II
Title: Assistant Vice President
- 61 -
Schedule A
DETERMINATION OF LIBOR
With respect to the Securities, the London interbank offered rate
("LIBOR") shall be determined by the Calculation Agent in accordance with the
following provisions (in each case rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior to an Interest
Payment Date (except with respect to the first interest payment period, such
date shall be May 29, 2007) (each such day, a "LIBOR Determination Date"),
LIBOR for any given security shall for the following interest payment period
equal the rate, as obtained by the Calculation Agent from Bloomberg Financial
Markets Commodities News, for three-month Eurodollar deposits that appears on
Dow Jones Telerate Page 3750 (as defined in the International Swaps and
Derivatives Association, Inc. 1991 Interest Rate and Currency Exchange
Definitions), or such other page as may replace such Page 3750, as of 11:00
a.m. (London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on Dow Jones
Telerate Page 3750 or such other page as may replace such Page 3750, the
Calculation Agent shall determine the arithmetic mean of the offered quotations
of the Reference Banks (as defined below) to leading banks in the London
interbank market for three-month Eurodollar deposits in an amount determined by
the Calculation Agent by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date made by
the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that
leading banks in the City of New York selected by the Calculation Agent are
quoting on the relevant LIBOR Determination Date for three-month Eurodollar
deposits in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
provided that, if the Calculation Agent is required but is unable to determine
a rate in accordance with at least one of the procedures provided above, LIBOR
shall be LIBOR as determined on the previous LIBOR Determination Date.
(3) As used herein: "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent; and "LIBOR Business Day"
means a day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London and (b) is not a
Saturday, Sunday or other day on which commercial banking institutions in New
York, New York or Wilmington, Delaware are authorized or obligated by law or
executive order to be closed.
Schedule A-1
Exhibit A
Officer's Financial Certificate
The undersigned, the [Chairman/Vice Chairman/Chief Executive
Officer/President/Vice President/Chief Financial Officer/Treasurer/Assistant
Treasurer], hereby certifies pursuant to Section 7.3(b) of the Indenture, dated
as of May 29, 2007, between Anthracite Capital, Inc. (the "Company") and
Wilmington Trust Company, as trustee, that, as of [date], [20__], the Company
and its subsidiaries had the following ratio and balance:
As of [Quarterly/Annual Financial Date], 20__
Tangible Net Worth (as defined in the Indenture) $_____
Debt-to-Total Capitalization Ratio (as defined in the Indenture) _____%
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20___].]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter ended [date], 20__.]
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Company and its consolidated subsidiaries, and the results of
operations and changes in financial condition as of the date, and for the
[quarter] [annual] period ended [date], [20__], and such financial statements
have been prepared in accordance with GAAP consistently applied throughout the
period involved (expect as otherwise noted therein).
There has been no monetary default with respect to any indebtedness owed by the
Company and/or its subsidiaries (other than those defaults cured within thirty
(30) days of the occurrence of the same) [except as set forth below:].
Ex. A-1
IN WITNESS WHEREOF, the undersigned has executed this Officer's
Financial Certificate as of this _____ day of _____________, 20__.
Anthracite Capital, Inc.
By:_______________________
Name:
Title:
Ex. A-2