Terms of the Notes Sample Clauses: 1k Samples

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Securities having the title as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture. The Notes shall bear a CUSIP number and an ISIN number as stated in Exhibit B hereto. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "Additional Notes") having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on the maturity date as identified on Exhibit B attached hereto. (d) If the Notes are identified as "Fixed" on Exhibit B, the rate at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be as identified in Exhibit B attached hereto of each year, commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a

Appears in 247 contracts

Sources: Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Securities having the title as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture. The Notes shall bear a CUSIP number and an ISIN number as stated in Exhibit B hereto. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "Additional Notes") having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on the maturity date as identified on Exhibit B attached hereto. (d) If the Notes are identified as "Fixed" on Exhibit B, the rate at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be as identified in Exhibit B attached hereto of each year, commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than ~~five~~ thirty (530) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (ivi) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity ~~of a~~

Appears in 63 contracts

Sources: Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp)

Appears in 7 contracts

Sources: Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp), Supplemental Indenture (Prospect Capital Corp)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Securities having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture~~“5.00% Notes due 2026”. The Notes shall bear a CUSIP number of 376546 800 and an ISIN number of US3765468000, as ~~stated in Exhibit B hereto~~may be supplemented or replaced from time to time. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ~~3.04~~2.05, ~~3.05~~2.06, ~~3.06~~2.07, ~~9.06 or 11.07~~ and 9.04 of the Base Indenture and Section 3.02(a) of the Indenture) shall be ~~as stated in Exhibit B attached hereto~~$127,937,500 (including $16,687,500 aggregate principal amount pursuant to the underwriters’ overallotment option). ~~Under~~ As authorized under a Board Resolution or Officer’s Certificate pursuant to a Board Resolution, ~~Officers' Certificate~~ the Company and the Trustee may enter into a Future Supplemental Indenture pursuant to ~~Board Resolutions or an indenture supplement,~~ which the Company may from time to time, without the consent of the Holders of the Notes, issue additional Notes (in any such ~~case "~~case, “Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the Notes; provided that, if such Additional Notes are not fungible with the Notes (or any other tranche of Additional Notes) for U.S. federal income tax purposes, then such Additional Notes shall have different CUSIP numbers from the Notes (and any such other tranche of Additional Notes). Any Additional Notes and the existing Notes ~~will~~ shall constitute a single series under the ~~Indenture~~ Indenture, and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on May 1, 2026 unless earlier redeemed or repurchased in accordance with the ~~maturity date as identified on Exhibit B attached hereto~~provisions of the Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ 5.00% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")annum. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~March 2, 2021, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ February 1, May 1, August 1 and November 1 of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ May 1, 2021 (provided that, if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment ~~will~~ shall be made on the next succeeding Business Day and no additional interest ~~will~~ shall accrue as a result of such delayed payment); the initial interest period ~~will~~ shall be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for)~~March 2, 2021, to, but excluding, the initial Interest Payment Date, and the subsequent interest periods ~~will~~ shall be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, ~~will~~ shall be paid to the Person in whose name the Note (or one or more ~~predecessor Notes~~Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ January 15, April 15, July 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any, on) and any such interest on the Notes ~~will~~ shall be made at the ~~Corporate Trust Office~~ office of the Trustee ~~in New York~~located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ~~New York~~ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Gladstone Investment Corporation (5.00% Notes Due 2026) or at such other address as designated by the Trustee, 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; provided, however, ~~that~~ that, at the option of the ~~Company~~ Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided, further, however, that, at the request of the registered Holder, the Company will pay the principal of (and premium, if any, on) and interest, if any, on the Notes by wire transfer of immediately available funds to an account at a bank in Kansas City, Missouri, on the date when such amount is due and payable and as further set forth in Section 4.01 of the Base Indenture; provided, further, however, that, so long as the Notes are registered to Cede & Co., such payment shall be made by wire transfer in accordance with the procedures established by DTC and the Trustee. Interest on the Notes ~~will~~ shall be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this Second Supplemental Indenture. Each Global Note shall represent the aggregate principal amount of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any ~~endorsement of a~~ new Global Note ~~to reflect~~ reflecting the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee ~~or the Security Registrar,~~ in accordance with ~~Sections 2.03 and 3.05~~ Section 3.03 of the Indenture. (f) The depositary for such Global Notes (the ~~"Depositary"~~“Depository”) shall be ~~The Depository Trust Company, New York, New York~~DTC. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section ~~11.01~~ 3.01 of the Base Indenture and as follows: (i) The Notes ~~will~~ shall be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after ~~the date identified as the Optional Redemption Date in Exhibit B hereto~~May 1, 2023, at a ~~redemption price~~ Redemption Price equal to 100% of ~~$1,000 per Note~~ the outstanding principal amount thereof plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the ~~date fixed for redemption~~Redemption Date. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than ~~five~~ thirty (530) nor more than sixty (60) days prior to the Redemption Date, at the Holder's ’s address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section ~~11.04~~ 3.02(a) of the ~~Base~~ Indenture. (iii) Any exercise of the Company's ’s option to redeem the Notes ~~will~~ shall be done in compliance with the Indenture and the Investment Company Act, to the extent applicable. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee ~~will~~ or, with respect to the Global Notes, the Depository shall determine the method for selecting the particular Notes to be redeemed, in accordance with Section 3.02(b) of the Indenture, the Investment Company ~~Act~~Act and the rules of any national securities exchange or quotation system on which the Notes are listed, in each case to the extent applicable. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest ~~will~~ shall cease to accrue on the Notes called for redemption hereunder. (h) The Notes shall not be subject to any sinking fund pursuant to Section 3.04 of the Base Indenture. (i) The ~~"Survivor's Option" is defined~~ Notes shall be issuable in ~~Section 2.01 and, if applicable to the Notes, is a provision~~ denominations of $25 and integral multiples of $25 in ~~a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative~~ excess thereof. (j) Holders of the ~~beneficial owner of that Note, following~~ Notes shall not have the ~~death of~~ option to have the ~~beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months~~ Notes repaid prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aStated Maturity.

Appears in 2 contracts

Sources: Second Supplemental Indenture (Gladstone Investment Corporation\de), Second Supplemental Indenture (Gladstone Investment Corporation\de)

Terms of the Notes. The following terms ~~relating~~ relate to the ~~Notes are hereby established~~Notes: (a1) The Notes shall constitute a separate series of ~~Securities~~ Notes having the title ~~as stated in Exhibit B hereto and shall be designated as~~ “Floating Rate Senior ~~Securities under the Indenture. The~~ Notes ~~shall bear a CUSIP number and an ISIN number as stated in Exhibit B hereto~~due 2018”. (b2) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (~~except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of~~ the ~~Base Indenture~~“Initial Notes”) shall be ~~as stated in Exhibit B attached hereto~~€600,000,000. ~~Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the~~ The Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (~~in any such case "~~the “Additional Notes"”) having the same ~~ranking and~~ terms (except for the ~~same~~ issue date, the offering price and, if applicable, the first interest ~~rate, maturity and other terms~~ payment date) as the Initial Notes. Any Additional Notes and the ~~existing~~ Initial Notes ~~will~~ shall together constitute a single series under the Indenture and all references to the ~~relevant~~ Notes ~~herein~~ shall include both the Initial Notes and the Additional ~~Notes~~ Notes, unless the context otherwise requires~~. (c)~~ . The aggregate principal amount of the Notes shall be unlimited. The entire ~~outstanding~~ Outstanding principal amount of the Notes shall be payable on August 9, 2018. The principal of each Note payable at maturity or upon earlier redemption shall be paid against presentation and surrender of such Note at the ~~maturity date as identified on Exhibit B attached hereto~~office or agency maintained for such purposes in London, initially, the Specified Office of the Paying Agent. (da) ~~If the Notes are identified as "Fixed" on Exhibit B, the rate at which the~~ The Notes shall bear interest at a rate equivalent to the 3-month EURIBOR (the “Base Rate”) plus 0.450% per year, as calculated by the Calculation Agent; provided, however, that the minimum interest rate shall be ~~the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the~~ zero. The Notes ~~are identified as "Step" on Exhibit B, the rates at which the Notes shall~~ will bear interest ~~shall be~~ from August 9, 2016 or from the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent immediately preceding Interest Payment Date (as defined below) to which interest has been paid or duly provided for~~; the~~ . Interest ~~Payment Dates for~~ on the Notes shall be ~~as identified~~ payable quarterly in ~~Exhibit B attached hereto~~ arrears on February 9, May 9, August 9 and November 9 of each ~~year~~year (each, a “Interest Payment Date”), commencing on ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (~~November 9, 2016; provided, that, if an any Interest Payment Date ~~falls on~~ would be a day that is not a Business Day, ~~then the applicable interest payment will~~ such Interest Payment Date shall be ~~made on~~ the next succeeding day that is a Business Day (and no additional interest will accrue ~~as a result of such delayed payment);~~ or otherwise accumulate on the ~~initial interest period will be~~ amount payable for the period from and ~~including~~ after such Interest Payment Date); except that if such next succeeding Business Day falls in the ~~date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent~~ next succeeding calendar month, such Interest Payment Date ~~to which~~ shall be the immediately preceding Business Day. The interest ~~has been paid or provided for~~rate on the Notes will be reset quarterly on February 9, May 9, August 9 and November 9 of each year (each, an “Interest Reset Date”), commencing on November 9, 2016; provided, that, if any Interest Reset Date would be a day that is not a Business Day, such Interest Reset Date shall be the next succeeding day that is a Business Day, except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. The initial Base Rate for the Notes in effect from August 9, 2016 to, but excluding, the ~~initial~~ first Interest ~~Payment Date, and the subsequent interest periods~~ Reset Date will be the ~~periods from and including~~ 3-month EURIBOR in effect on August 5, 2016. The interest rate on the Notes will be determined on the second TARGET Business Day preceding the applicable Interest Reset Date (a “EURIBOR Interest Determination Date”). Interest on an Interest Payment Date ~~to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will~~ shall be paid to the ~~Person~~ Persons in whose ~~name~~ names the ~~Note (or one or more predecessor Notes) is~~ Notes are registered on the Security Register at the close of business on the ~~Regular Record Date for such interest, which~~ regular record date. The regular record date shall be the ~~record dates as identified in Exhibit B hereto (~~fifteenth calendar day, whether or not a Business Day), as immediately preceding the ~~case may be, next preceding such~~ related Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year and the actual number of ~~twelve 30-day months~~days in the period for which interest is being calculated. (eb) The Base Rate that takes effect on any Interest Reset Date shall be equal to the interest rate for deposits in euros designated as “EURIBOR” and sponsored jointly by the European Banking Federation and ACI — the Financial Market Association (or any company established by the joint sponsors for purposes of compiling and publishing that rate) on each EURIBOR Interest Determination Date, and will be determined by the Calculation Agent in accordance with the following provisions: (i) EURIBOR will be the offered rate for deposits in euros having a maturity of three months, as that rate appears on Reuters Page EURIBOR01 as of 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date. (ii) If the rate described in clause (i) above does not appear on Reuters Page ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ will be determined on the basis of the rates, at approximately 11:00 A.M., Brussels time, on the relevant EURIBOR Interest Determination Date, at which deposits of the following kind are offered to prime banks in the Euro-Zone interbank market by the principal Euro-Zone office of each of four major banks in that market selected by the Company: euro deposits having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. The Company will request the principal Euro-Zone office of each of these banks to provide to the Paying Agent and Calculation Agent a quotation in writing of its rate. If at least two quotations are provided in writing, EURIBOR for such EURIBOR Interest Determination Date will be the arithmetic mean (rounded upwards in accordance with Section 1.2(3)(d) hereof) calculated by the Company of such quotations. The Company will ensure that the Calculation Agent is provided with appropriate contact details of the relevant personnel at each of the reference banks that the Calculation Agent will be requested to contact to provide such quotation of its rates. (iii) If fewer than two quotations are provided as described in clause (ii) above, EURIBOR for the relevant EURIBOR Interest Determination Date will be the arithmetic mean of the rates for loans of the following kind to leading Euro-Zone banks quoted in writing, at approximately 11:00 A.M., Brussels time, on such EURIBOR Interest Determination Date, by three major banks in the Euro-Zone selected by the Company: loans of euros having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. (iv) If fewer than three banks selected by the Company are quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR then in effect on such EURIBOR Interest Determination Date (or, in the case of the first Interest Reset Date, EURIBOR shall be the initial Base Rate). (c) Upon request of the Holder to the Calculation Agent, the Calculation Agent will provide the interest rate then in effect on the Notes and, if determined, the interest rate that will become effective on the next Interest Reset Date. (d) All percentages resulting from any calculation with respect to the Notes will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to the Notes will be rounded upward or downward, as appropriate, to the nearest cent, in the case of euro amounts or U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than euro amounts or U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward. (4) The Notes shall be ~~initially~~ issuable in ~~global~~ whole in the form ~~(each such Note~~of one or more registered Global Securities, ~~a "Global Note")~~without coupons, which shall be deposited with, or on behalf of, the applicable Depositary and shall be registered in the name of the Common Depositary for, and in respect of interests held through, the applicable Depositary. The ~~Global~~ Notes ~~and the Trustee's certificate of authentication thereon~~ shall be substantially in the form attached hereto as Exhibit A, the terms of ~~Exhibit A hereto~~which are herein incorporated by reference. ~~Each Global Note shall represent the outstanding~~ The Notes as shall be ~~specified therein and each shall provide that it shall represent the aggregate amount~~ issuable in denominations of ~~outstanding Notes from time to time endorsed thereon and that the aggregate amount~~ €100,000 or any integral multiple of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease €1,000 in ~~the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture~~excess thereof. (f5) ~~The depositary for such Global~~ Except as provided in Section 1.4, the Notes (shall not be redeemable at the ~~"Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect~~ option of the Company prior to the ~~Global Notes shall be the Trustee~~maturity date. (g6) The Notes shall not have the benefit of any sinking fund. (7) Except as provided herein, the Holders shall have no special rights in addition to those provided in the Base Indenture upon the occurrence of any particular events. (8) The Notes shall be ~~defeasible pursuant to Section 14.02 or Section 14.03~~ general unsecured and unsubordinated obligations of the ~~Base Indenture. Covenant defeasance contained~~ Company and shall be ranked equally among themselves. (9) The Notes are not convertible into shares of common stock or other securities of the Company. (10) The covenants set forth in Section ~~14.03~~ 1.5 hereof shall be applicable to the Notes. (11) The transfer and exchange provisions set forth in Section 2.05 of the Base Indenture shall ~~apply~~ be applicable to the ~~covenants contained in Sections 10.06 and 10.08 of the Indenture~~Notes. (h12) All payments of principal of, and interest (including Additional Amounts, if any) and premium (if any) on, the Notes shall be payable in euro; provided, however, that if, on or after August 2, 2016, euro is unavailable to the Company or, in the case of the Guarantee, the Guarantor due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or if the euro is no longer being used by the then member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes shall be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantee, the Guarantor or so used. In such circumstances, the amount payable on any date in euro shall be converted by the Company into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Any payment in respect of the Notes so made in U.S. dollars shall not constitute an Event of Default under the Notes or the Indenture. Neither the Trustee, the Paying Agent nor the Calculation Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any references elsewhere in the Indenture or the Notes to payments being made in euro notwithstanding, payments shall be made in U.S. dollars to the extent set forth in this Section 1.2(12). (13) The Bank of New York Mellon, London Branch, shall initially act as the Paying Agent and the Calculation Agent in accordance with the terms of the Paying Agency Agreement and the Calculation Agency Agreement, respectively. The Company hereby initially designates the Specified Office of the Paying Agent as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange, and where notices to or demands upon the Company in respect of the Notes or the Indenture may be served. The Security Registrar for the Notes shall initially be the Trustee. Upon notice to the Trustee, the Company may at any time vary or terminate the appointment of any Paying Agent, Security Registrar or Calculation Agent, to appoint additional or other Paying Agents, Security Registrars or Calculation Agents and to approve any change in the office through which any Paying Agent, Security Registrar or Calculation Agent acts. (14) In order to provide for all payments due on the Notes as the same shall become due, the Company shall cause to be paid to the Paying Agent, no later than 10:00 a.m. London time on the Business Day prior to the payment date of each Note, at such bank as the Paying Agent shall previously have notified the Company, in immediately available funds sufficient to meet all payments due on such Notes. (15) Notwithstanding any other provision of this Supplemental Indenture, the Trustee and Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under this Supplemental Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any certification or other requirements in respect of the Notes, in which event the Trustee or Paying Agent shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax. (16) The Notes shall ~~be redeemable pursuant to Section 11.01~~ have the benefit of a Guarantee from the ~~Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at~~ Guarantor on the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information terms set forth in ~~Section 11.04~~ Article XIV of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a

Appears in 1 contract

Sources: First Supplemental Indenture (Thermo Fisher Scientific Inc.)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Senior Securities having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture.~~ “6.85% Notes due 2025.” The Notes ~~shall bear~~ shall, upon the request of the holder, be assigned a CUSIP number and an ISIN number; provided that the CUSIP number ~~as stated in Exhibit B hereto~~and ISIN number assigned to the Notes also will be assigned to the Existing Notes. (b) The aggregate principal amount of the Notes (including the Existing Notes) that may be ~~initially~~ authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ~~3.04~~304, ~~3.05~~305, ~~3.06~~306, ~~9.06~~ 906, 1107 or ~~11.07~~ 1305 of the Base Indenture, and except for any Securities that, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered under the Indenture) shall be ~~as stated in Exhibit B attached hereto~~$15,000,000 aggregate principal amount. Under a Board Resolution, Officers' ’ Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any ~~such case "~~case, “Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on November 30, 2025, unless earlier redeemed or repurchased in accordance with the ~~maturity date as identified on Exhibit B attached hereto~~provisions of the Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ 6.85% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")annum. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~January 6, 2021, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ February 28, May 31, August 31 and November 30 of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ February 28, 2021 (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a

Appears in 1 contract

Sources: Supplemental Indenture (Newtek Business Services Corp.)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Senior Securities having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture.~~ “[●]% Notes due 20[●].” The Notes shall bear a CUSIP number of [●] and an ISIN number ~~as stated in Exhibit B hereto~~of [●]. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ~~3.04~~304, ~~3.05~~305, ~~3.06~~306, ~~9.06~~ 906, 1107 or ~~11.07~~ 1305 of the Base Indenture, and except for any Securities that, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered under the Indenture) shall be ~~as stated~~ $[●] (or up to $[●] if the purchasing agent’s option to purchase additional Notes is exercised in ~~Exhibit B attached hereto~~full). Under a Board Resolution, Officers' ’ Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on [●], 20[●], unless earlier redeemed or repurchased in accordance with the ~~maturity date as identified on Exhibit B attached hereto~~provisions of this First Supplemental Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ [●]% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "“Applicable Interest Rate"”). The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~[●], 2016, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ [●], [●], [●] and [●] of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ [●], 2016 (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for)~~[●], 2016, to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more ~~predecessor Notes~~Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ [●], [●], [●] or [●] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any, on) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in ~~New York~~[Boston, ~~New York~~ Massachusetts] 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided, further, however, that so long as the Notes are registered to Cede & Co., such payment will be made by wire transfer in accordance with the procedures established by The Depository Trust Company and the Trustee. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this First Supplemental Indenture. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect ~~exchanges~~ exchanges, redemptions and ~~redemptions~~issuances. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections ~~2.03~~ 203 and ~~3.05~~ 305 of the Base Indenture. (f) The depositary for such Global Notes (the "“Depositary"”) shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section ~~14.02~~ 1402 or Section ~~14.03~~ 1403 of the Base Indenture. Covenant defeasance contained in Section ~~14.03~~ 1403 of the Base Indenture shall apply to the covenants contained in Sections ~~10.06~~ 1007, 1008 and ~~10.08~~ 1009 of the Indenture. (h) The Notes shall be redeemable pursuant to Section ~~11.01~~ 1101 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after ~~the date identified as the Optional Redemption Date in Exhibit B hereto~~[●], 20[●], at a redemption price equal to 100% of ~~$1,000 per Note~~ the outstanding principal amount thereof plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than ~~five~~ thirty (530) nor more than sixty (60) days prior to the Redemption Date, at the Holder's ’s address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section ~~11.04~~ 1104 of the Base Indenture. (iii) Any exercise of the Company's ’s option to redeem the Notes will be done in compliance with the ~~Investment Company Act~~Indenture to the extent applicable. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee or the Depositary, as applicable, will determine the method for selecting the particular Notes to be redeemed, in accordance with Section 1103 of the Base Indenture and the Investment Company ~~Act~~Act and the rules of any national securities exchange or quotation system on which the Notes are listed, in each case to the extent applicable. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The ~~"Survivor's Option" is defined in Section 2.01 and, if applicable~~ Notes shall not be subject to ~~the Notes, is a provision in a Note~~ any sinking fund pursuant to ~~which the Company agrees to repay that Note, if requested by the authorized representative~~ Section 1201 of the ~~beneficial owner~~ Base Indenture. (j) The Notes shall be issuable in denominations of ~~that Note, following the death~~ $25 and integral multiples of $25 in excess thereof. (k) Holders of the ~~beneficial owner of~~ Notes will not have the ~~Note, so long as~~ option to have the ~~Note was owned by that beneficial owner or the estate of that beneficial owner at least six months~~ Notes repaid prior to the ~~request.~~ Stated Maturity. (l) The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) Notes are hereby designated as “Designated Senior Securities” under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aIndenture.

Appears in 1 contract

Sources: First Supplemental Indenture (Medley LLC)

Terms of the Notes. The Notes are hereby created and designated as a separate series of Securities under the Base Indenture. The following terms ~~relating~~ relate to the ~~Notes are hereby established~~Notes: (a) The Notes shall constitute a separate series of Securities under the Base Indenture having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture.~~ “[•]% Notes due 20[•].” (b) The Notes shall ~~bear~~ be issued at a ~~CUSIP number~~ price of [•]% of the principal amount thereof, other than any offering discounts pursuant to the initial offering and ~~an ISIN number as stated in Exhibit B hereto~~resale of the Notes. (bc) The aggregate principal amount of the Notes (the “Initial Notes”) that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be ~~as stated in Exhibit B attached hereto~~US$[•]. ~~Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the~~ The Company may from time to time, without the consent of the Holders of the Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ~~ranking~~ terms and ~~the same interest rate, maturity and other terms~~ conditions as the ~~Notes~~Initial Notes in all respects (or in all respects except for the Issue Date, the issue price or the first Interest Payment Date). Any Additional Notes and the ~~existing~~ Initial Notes ~~will~~ shall constitute a single series under the ~~Indenture and all~~ Indenture; provided that if such Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes shall not be issued. All references to the ~~relevant Notes herein~~ “Notes” shall include the Initial Notes and any Additional Notes unless the context otherwise requires. The aggregate principal amount of each of the Additional Notes shall be unlimited. (cd) The entire outstanding principal of the Notes shall be payable on ~~the maturity date as identified on Exhibit B attached hereto~~[•], 20[•]. (de) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ [•]% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")year. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~February [•], 2021, or the most recent Interest Payment Date to which interest has been paid or provided for~~; the~~ . The Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ August [•] and February [•] of each year, ~~commencing~~ beginning August [•], 2021. Interest shall be payable on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent each Interest Payment Date to ~~which interest has been paid or provided for), to, but excluding,~~ the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered Holders of record at the close of business on the ~~Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such~~ July [•] and January [•] prior to each Interest Payment Date. The ~~initial~~ basis upon which interest ~~payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date,~~ shall be ~~equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will~~ calculated shall be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. (ef) The Notes shall be ~~initially~~ issuable in ~~global~~ whole in the form ~~(each~~ of one or more definitive, fully registered Global Securities without interest coupons, and the Depository for such ~~Note, a "~~Global ~~Note")~~Securities shall be DTC. The ~~Global~~ Notes ~~and the Trustee's certificate of authentication thereon~~ shall be substantially in the form attached hereto as Exhibit A, the terms of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made which are herein incorporated by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New Yorkreference. The ~~Security Registrar with respect to the Global~~ Notes shall be denominated in U.S. Dollars and, notwithstanding Section 3.02 of the ~~Trustee~~Base Indenture, shall be issuable in minimum denominations of US$200,000 or any integral multiples of US$1,000 in excess thereof. (g) The Notes ~~shall~~ may be ~~defeasible pursuant to Section 14.02 or Section 14.03~~ redeemed at the option of the ~~Base Indenture. Covenant defeasance contained~~ Company prior to the date of Stated Maturity for payment of principal on the Notes, as provided in Section ~~14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture~~2.02. (h) The Notes will not have the benefit of any sinking fund. (i) Except as provided herein, the Holders of the Notes shall ~~be redeemable pursuant~~ have no special rights in addition to ~~Section 11.01 of~~ those provided in the Base Indenture ~~and as follows:~~upon the occurrence of any particular events. (ij) The Notes will be ~~redeemable~~ senior unsecured obligations of the Company and will rank at least equal in ~~whole or in part at any time or from time~~ right of payment to ~~time, at the option~~ all of the Company~~, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued~~ ’s other existing and ~~unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption.~~ future unsecured and unsubordinated obligations (~~ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery,~~ subject to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note any priority rights pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of alaw).

Appears in 1 contract

Sources: Announcement

Terms of the Notes. ~~The following terms relating to the Notes are hereby established:~~ (a) There is hereby established a new Series of Securities to be issued under the Indenture to be designated as the Company’s “[ ]% Notes due 2027.” The Notes shall ~~constitute a series of Securities having~~ be issued in registered form substantially in the ~~title~~ form attached as ~~stated~~ Exhibit A hereto, in ~~Exhibit B hereto~~ each case with such appropriate insertions, omissions, substitutions and ~~shall be designated~~ other variations as ~~Senior Securities under~~ are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may deem appropriate or as may be required or appropriate to comply with any laws or with any rules made pursuant thereto or with the rules of any securities exchange or automated quotation system on which the Notes may be listed or traded, or to conform to general usage, or as may, consistently with the Indenture, be determined by the Officers executing such Notes, as evidenced by their execution thereof. The Notes shall ~~bear~~ be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Base Indenture as supplemented and amended by this Third Supplemental Indenture (including the Form of Note attached as Exhibit A hereto, the terms of which are incorporated by reference herein and shall be deemed to be a ~~CUSIP number and an ISIN number as stated in Exhibit B hereto~~part of this Third Supplemental Indenture). (b) The aggregate principal amount of the Notes ~~that~~ which may be ~~initially~~ authenticated and delivered ~~under the Indenture (except~~ pursuant hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for ~~Notes authenticated and delivered upon registration of, transfer of, or~~ original issue in ~~exchange for, or in lieu of, other Notes~~ an aggregate principal amount of $[ ] pursuant to ~~Sections 3.04, 3.05, 3.06, 9.06 or 11.07~~ Section 2.04 of the Base Indenture~~) shall~~ . The aggregate principal amount of the Notes to be ~~as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement,~~ issued hereunder may be increased at any time hereafter and the ~~Company~~ Series may ~~from time to time,~~ be reopened for issuances of additional Notes without the consent of any Holder. The Notes issued on the ~~Holders of Notes, issue~~ date hereof and any such additional Notes ~~(in any such case "Additional Notes") having~~ that may be issued hereafter shall be part of the same ~~ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series~~ Series of Securities for all purposes under the ~~Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires~~Indenture. (c) The ~~entire outstanding principal~~ Stated Maturity of the Notes shall be ~~payable on the maturity date as identified on Exhibit B attached hereto~~[ ], 2027. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate ~~at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the~~ or rates at which the Notes shall bear interest, the date or dates from which such interest shall accrue, the interest payment dates on which any such interest shall be payable and the ~~percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate"~~ regular record date for any interest payable on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be as identified in Exhibit B attached hereto of each year, commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable any interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Datedate, and the ~~subsequent interest periods will be the periods from~~ other terms, conditions and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion provisions of the Notes, ~~the Trustee will determine the method for selecting the particular Notes to be redeemed,~~ in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicableeach case, shall be ~~so specified under "Survivor's Option" on~~ as set forth in the Form of Note attached as Exhibit ~~B attached~~ A hereto~~. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment~~, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance terms of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice are incorporated by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of areference herein.

Appears in 1 contract

Sources: Third Supplemental Indenture (Eaton Vance Corp)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Securities having the title ~~as stated in Exhibit B hereto and shall be designated as~~ “[ ]% Fixed Rate Senior ~~Securities under the Indenture~~Notes due 2028”. The Notes shall bear a CUSIP number of [ ] and an ISIN number of [ ], as ~~stated in Exhibit B hereto~~may be supplemented or replaced from time to time. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ~~3.04~~3.4, ~~3.05~~3.5, ~~3.06~~3.6, ~~9.06 or 11.07~~ 9.6 and 11.7 of the Base Indenture) shall be ~~as stated~~ $60,000,000 aggregate principal amount (up to $69,000,000 if the underwriters exercise their option to purchase additional Securities in ~~Exhibit B attached hereto~~full). Under a Board Resolution, Officers' ’ Certificate pursuant to a Board ~~Resolutions~~ Resolution or ~~an indenture supplement~~a Future Supplemental Indenture, the Company may from time to time, without the consent of the Holders of Notes, . issue additional Notes (in any such ~~case "~~case, “Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the Notes; provided that, if such Additional Notes are not fungible with the Notes (or any other tranche of Additional Notes) for U.S. federal income tax purposes, then such Additional Notes shall have different CUSIP numbers from the Notes (and any such other tranche of Additional Notes). Any Additional Notes and the existing Notes ~~will~~ shall constitute a single series under the ~~Indenture~~ Indenture, and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on [September 30], 2028 unless earlier redeemed or repurchased in accordance with the ~~maturity date as identified on Exhibit B attached hereto~~provisions of the Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ [ ]% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")annum. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~[ ], 2023, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ March 30, June 30, September 30 and December 30 of each year, commencing on ~~the date as identified as the 1st Coupon Date in Exhibit B hereto~~ [December 30], 2023 (provided that, if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment ~~will~~ shall be made on the next succeeding Business Day and no additional interest ~~will~~ shall accrue as a result of such delayed payment); the initial interest period ~~will~~ shall be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for)~~[ ], 2023, to, but excluding, the initial Interest Payment Date, and the subsequent interest periods ~~will~~ shall be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, ~~will~~ shall be paid to the Person in whose name the Note (or one or more ~~predecessor Notes~~Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ March 15, June 15, September 15 or December 15 (whether or not a Business Day), as the case may be, ~~next~~ immediately preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any, on) and any such interest on the Notes ~~will~~ shall be made at the ~~Corporate Trust Office~~ office of the Trustee ~~in New York~~located at [▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ~~New York~~ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Corporate Trust Services ([ ]% Fixed Rate Senior Notes Due 2028)] or at such other address as designated by the Trustee, 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; provided, however, ~~that~~ that, at the option of the ~~Company~~ Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided. further, however, that, at the request of the registered Holder, the Company will pay the principal of (and premium, if any, on) and interest, if any, on the Notes by wire transfer of immediately available funds to an account at a bank in New York, New York, on the date when such amount is due and payable and as further set forth in Section 10.1 of the Base Indenture; provided, further, however, that, so long as the Notes are registered to Cede & Co., such payment will be made by wire transfer in accordance with the procedures established by DTC and the Trustee. Interest on the Notes ~~will~~ shall be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this First Supplemental Indenture. Each Global Note shall represent the aggregate principal amount of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any ~~endorsement of a~~ new Global Note ~~to reflect~~ reflecting the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee ~~or the Security Registrar,~~ in accordance with ~~Sections 2.03 and 3.05~~ Section 11.7 of the Base Indenture. (f) The depositary for such Global Notes (the "“Depositary"”) shall be ~~The Depository Trust Company, New York, New York~~DTC. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section ~~11.01~~ 11.1 of the Base Indenture and as follows: (i) The Notes ~~will~~ shall be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after ~~the date identified as the Optional Redemption Date in Exhibit B hereto~~[September 30], 2025, at a ~~redemption price~~ Redemption Price equal to 100% of ~~$1,000 per Note~~ the outstanding principal amount thereof plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the ~~date fixed for redemption~~Redemption Date. (ii) Notice of redemption shall be given in writing and ~~mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery,~~ sent to each Holder of the Notes to be redeemed, not less than ~~five~~ fifteen (515) nor more than sixty (60) days prior to the Redemption Date, at the Holder's ’s address appearing in the Security ~~Register~~Register or in the case of Global Notes, in accordance with the applicable procedures of the Depository. All notices of redemption shall contain the information set forth in Section ~~11.04~~ 11.4 of the Base Indenture. (iii) Any exercise of the Company's ’s option to redeem the Notes ~~will~~ shall be done in compliance with the ~~Investment Company Act~~Indenture. (iv) If the Company elects to redeem only a portion of the ~~Notes~~Notes by partial redemption, ~~the Trustee will determine the method for selecting~~ the particular Notes to be ~~redeemed~~redeemed shall be selected in accordance with applicable rules and procedures of the Depository, or in the case of certificated notes, any other method in accordance with the ~~Investment Company Act~~policies and procedures of the Trustee. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption ~~Date,~~ Date interest ~~will~~ shall cease to accrue on the Notes called for redemption hereunder. (h) The Notes shall not be subject to any sinking fund pursuant to Article XII of the Base Indenture. (i) The ~~"Survivor's Option" is defined~~ Notes shall be issuable in ~~Section 2.01 and, if applicable to the Notes, is a provision~~ minimum denominations of $25 and integral multiples of $25 in ~~a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative~~ excess thereof. (j) Holders of the ~~beneficial owner of that Note, following~~ Notes shall not have the ~~death of~~ option to have the ~~beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months~~ Notes repaid prior to the ~~request. The Survivor's Option~~Stated Maturity, ~~if applicable~~except in accordance with this Section 1.1(j) in connection with a Change of Control Repurchase Event. (i) If a Change of Control Repurchase Event (as defined below) occurs, ~~shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon~~ unless the ~~valid exercise~~ Company has provided notice of the redemption of the Notes pursuant to Section 1.1(g) hereof, each Holder of Notes will have the right to require the Company to purchase some or all (in minimum principal amounts of $25 or an integral multiple of $25 in excess thereof) of such Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”). (ii) If a Change of Control Offer is required, within 20 days following a Change of Control Repurchase Event or, at the Company’s option, prior to any ~~Survivor's Option and~~ Change of Control Repurchase Event, but after the ~~proper tender~~ public announcement of ~~that Note for repayment~~a Change of Control Repurchase Event, the Company ~~will~~will deliver a notice in a manner provided in Section 1.1 hereof to each Holder (with a copy to the Trustee and the Paying Agent, ~~at its option, repay or~~ if other than the Trustee) describing the Change of Control Repurchase Event and offering to repurchase ~~that Note, in whole or in part,~~ Notes on a specified date (the “Change of Control Payment Date”) at a cash price ~~equal to~~ of 100% of the principal amount of ~~the deceased beneficial owner's interest in that Note~~ any Notes to be repurchased, plus accrued and unpaid interest ~~accrued~~ thereon to, but excluding, the Change of Control Payment Date (the “Change of Control Payment”) (subject to the right of Holders at the close of business on the relevant record date to receive interest due on any Interest Payment Date falling on or prior to the Change of Control Payment Date). The Change of Control Payment Date will be no earlier than twenty (20) days and no later than thirty-five (35) days from the date the notice is sent. Among other things, such notice shall state that if a Holder elects to have a Note purchased pursuant to a Change of Control Offer it will be required to surrender the Note, with any form specified in such notice, to the Person and at the address specified in the notice (or, in the case of Global Notes, to surrender the Global Note and provide the information required in accordance with the Applicable Procedures) prior to the close of business on the third Business Day prior to the Change of Control Payment Date. The Change of Control Offer shall, if given prior to the date of ~~repayment. To be valid, any Survivor's Option must be exercised by or on behalf~~ consummation of the ~~person who has authority~~ Change of Control Repurchase Event, state that the offer to ~~act~~ repurchase is conditioned on ~~behalf~~ the Change of Control Repurchase Event occurring on or prior to the ~~deceased beneficial owner~~ Change of Control Payment Date specified in the ~~Note~~ Change of Control Offer. (~~including, without limitation~~iii) On the Change of Control Payment Date, the ~~personal representative or executor~~ Company will, to the extent lawful: (A) accept for payment all Notes properly tendered and not withdrawn pursuant to the Change of Control Offer; (B) deposit the ~~deceased beneficial owner or the surviving joint owner~~ Change of Control Payment with the ~~deceased beneficial owner~~Paying Agent in respect of all Notes so accepted; and (C) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established deliver to the ~~satisfaction of~~ Trustee the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband Notes accepted and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit an Officers’ Certificate stating the aggregate principal amount of all Notes as repurchased by the Company and requesting that such Notes be cancelled. (iv) The Paying Agent will promptly send to ~~which exercises~~ each Holder of ~~any Survivor's Option shall~~ Notes properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and send, or cause to be ~~accepted~~ transferred by ~~us from authorized representatives of all deceased beneficial owners~~ book-entry, to each Holder a new Note in ~~any calendar year to an~~ principal amount equal to ~~the greater of $2,000,000 or 2%~~ any unrepurchased portion of the Notes surrendered; provided that each new Note will be in a minimum principal amount of ~~all Notes outstanding as~~ $25 and integral multiples of $25 in excess thereof. (v) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations to the extent those laws and regulations are applicable to any Change of Control Offer. If the provisions of any of the ~~end~~ applicable securities laws or securities regulations conflict with the provisions of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In additionthis Section 1.1(j), the Company will comply with the applicable securities laws and regulations and will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to have breached its obligations under this Section 1.1(j) by virtue of that compliance. (vi) The Company shall not be ~~tendered~~ required to make a Change of Control Offer upon a Change of Control Repurchase Event if (1) a third party makes the Change of Control Offer in the ~~following calendar year~~ manner, at the times and otherwise in compliance with the ~~order~~ requirements set forth in ~~which~~ this Section 1.1(j) applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such ~~Notes were originally tendered~~Change of Control Offer or (2) the Company has given notice of redemption pursuant to Section 1.1 hereof prior to the occurrence of the Change of Control Repurchase Event. If Notwithstanding anything to the contrary contained herein, a ~~Note tendered through~~ Change of Control Offer may be made in advance of a ~~valid exercise~~ Change of ~~any Survivor's Option is~~ Control Repurchase Event, subject to one or more conditions precedent, including, but not ~~accepted~~limited to, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise consummation of such ~~Survivor's Option; • appropriate evidence satisfactory~~ Change of Control, if a definitive agreement is in place for the transaction that will give rise to ~~the Trustee (a) that the deceased was the beneficial owner~~ a Change of ~~the Note~~ Control Repurchase Event at the time the Change of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note Control Offer is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of amade.

Appears in 1 contract

Sources: First Supplemental Indenture (Abacus Life, Inc.)

Terms of the Notes. ~~The following terms relating to the Notes are hereby established: (a)~~ The Notes shall ~~constitute a series of Securities having~~ be issued in fully registered form, in substantially the ~~title as stated~~ forms set forth in Exhibit A hereof (with respect to the Class A Notes) and Exhibit B ~~hereto~~ (with respect to the Class B Notes), in each case with such variations, omissions and ~~shall~~ insertions as may be ~~designated~~ required by the circumstances, as ~~Senior Securities under~~ may be required or permitted by the ~~Indenture~~Indenture and this First Terms Supplement, or be consistent with the Indenture and this First Terms Supplement and necessary or appropriate to conform to the rules and requirements of any governmental authority or any usage or requirement of law with respect thereto. The Notes may be issued only in Authorized Denominations. The Notes shall ~~bear a CUSIP number and an ISIN number~~ be dated as ~~stated in Exhibit B hereto. (b) The aggregate principal amount~~ of the Closing Date. Each Class of Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall ~~be as stated in Exhibit B attached hereto~~mature on its Final Maturity Date. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "Additional Notes") having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The ~~entire outstanding principal of the~~ Notes shall be ~~payable~~ issued to a Securities Depository for use in a Book-Entry System in accordance with the provisions of Section 2.14 of the Indenture. Interest on the maturity date as identified on Exhibit B attached hereto. (d) If the Notes are identified as "Fixed" on Exhibit B, the rate at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest each Note shall accrue on the ~~Notes~~ Outstanding Amount of such Note until such Note has been paid in full or payment has been duly provided for, as the case may be, and shall ~~be on~~ accrue from the ~~date specified in Exhibit B attached hereto,~~ later of the Closing Date or the most recent ~~Interest Payment~~ Distribution Date to which interest has been paid or duly provided for; . Each Note shall bear interest at an interest rate determined in accordance with the ~~Interest Payment Dates for~~ provisions and subject to the limitations set forth herein, and interest on Notes shall be ~~as identified in Exhibit B attached hereto of~~ paid for the related Interest Payment Period on each ~~year, commencing~~ Distribution Date (or on ~~the date as identified as the 1st Coupon~~ each Quarterly Distribution Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case ~~may be;~~ of the ~~interest so payable, and punctually paid or duly provided for, on any Interest Payment Date,~~ Class B Notes). Principal will be paid on the Notes on each Distribution Date (or on each Quarterly Distribution Date in the case of the Class B Notes) in an amount up to the ~~Person in whose name the Note (~~Noteholders' Principal Distribution Amount on such Distribution Date or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day)Quarterly Distribution Date, as the case may be, ~~next preceding such Interest Payment Date~~in the order and priorities set forth in the Transfer and Servicing Agreement and the Indenture. ~~The initial interest payment on~~ Except as otherwise set forth in the ~~Notes on~~ Indenture and the ~~date as identified as~~ Transfer and Servicing Agreement, the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office rights of the ~~Trustee in New York, New York in such coin or currency~~ Holders of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed Class B Notes to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar receive distributions with respect to ~~the Global Notes~~ interest shall be subordinated to the ~~Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03~~ prior rights of the ~~Base Indenture. Covenant defeasance contained in Section 14.03~~ Holders of the ~~Base Indenture shall apply~~ Class A Notes to receive all payments of interest to which they are entitled and, after each Class of Notes has received the ~~covenants contained in Sections 10.06 and 10.08~~ full amount of interest to which it is entitled, the rights of the ~~Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01~~ Holders of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit Class B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only receive distributions with respect to ~~such deceased person's interest in~~ principal shall be subordinated to the ~~Note. The death of a person who, during his or her lifetime, was entitled to substantially all~~ prior rights of the ~~beneficial ownership interests in a Note will be deemed the death~~ Holders of the ~~beneficial owner~~ Class A Notes to receive all payments of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal ~~amount of Notes as~~ to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections they are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aentitled.

Appears in 1 contract

Sources: Indenture (Crestar Bank /Va)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Senior Securities having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture.~~ “[ ]% Notes due 20[ ].” The Notes shall bear a CUSIP number of [ ] and an ISIN number ~~as stated in Exhibit B hereto~~of US[ ]. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections ~~3.04~~304, ~~3.05~~305, ~~3.06~~306, ~~9.06~~ 906, 1107 or ~~11.07~~ 1305 of the Base Indenture, and except for any Securities that, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered under the Indenture) shall be ~~as stated~~ up to $[ ] (or up to $[ ] aggregate principal amount if the underwriters’ option to purchase additional Securities is exercised in ~~Exhibit B attached hereto~~full). Under a Board Resolution, Officers' ’ Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on ~~the maturity date as identified on Exhibit B attached hereto~~[ ], 20[ ]. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ [ ]% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "“Applicable Interest Rate"”). The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~[ ], 2021 or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ [ ], [ ], [ ] and [ ] of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ [ ], 2021 (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for)~~[ ], 2021, to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more ~~predecessor Notes~~Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ [ ], [ ], [ ] and [ ] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any, on) and any such interest on the Notes will be made at the ~~Corporate Trust Office~~ office of the Trustee ~~in New York~~located at 1▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ~~New York~~ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Global Corporate Trust & Custody and at such other address as designated by the Trustee, 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided, further, however, that so long as the Notes are registered to Cede & Co., such payment will be made by wire transfer in accordance with the procedures established by The Depository Trust Company and the Trustee. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this First Supplemental Indenture. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections ~~2.03~~ 203 and ~~3.05~~ 305 of the Base Indenture. (f) The depositary for such Global Notes (the "“Depositary"”) shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section ~~14.02~~ 1402 or Section ~~14.03~~ 1403 of the Base Indenture. Covenant defeasance contained in Section ~~14.03~~ 1403 of the Base Indenture shall apply to the covenants contained in Sections ~~10.06~~ 1006, 1008 and ~~10.08~~ 1009 of the Indenture. (h) The Notes shall be redeemable pursuant to Section ~~11.01~~ 1101 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after ~~the date identified as the Optional Redemption Date in Exhibit B hereto~~[ ], 20[ ], at a redemption price equal to 100% of ~~$1,000 per Note~~ the outstanding principal amount thereof, plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than ~~five~~ thirty (530) nor more than sixty (60) days prior to the Redemption Date, at the Holder's ’s address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section ~~11.04~~ 1104 of the Base Indenture. (iii) Any exercise of the Company's ’s option to redeem the Notes will be done in compliance with the Investment Company Act, to the extent applicable. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with Section 1103 of the Base Indenture and the Investment Company ~~Act~~Act and the rules of any national securities exchange or quotation system on which the Notes are listed, in each case to the extent applicable. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The ~~"Survivor's Option" is defined in Section 2.01 and, if applicable~~ Notes shall not be subject to ~~the Notes, is a provision in a Note~~ any sinking fund pursuant to ~~which the Company agrees to repay that Note, if requested by the authorized representative~~ Section 1201 of the ~~beneficial owner~~ Base Indenture. (j) The Notes shall be issuable in denominations of ~~that Note, following the death~~ $25 and integral multiples of $25 in excess thereof. (k) Holders of the ~~beneficial owner of~~ Notes will not have the ~~Note, so long as~~ option to have the ~~Note was owned by that beneficial owner or the estate of that beneficial owner at least six months~~ Notes repaid prior to the ~~request.~~ Stated Maturity. (l) The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) Notes are hereby designated as “Senior Securities” under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aIndenture.

Appears in 1 contract

Sources: Supplemental Indenture (Terra Property Trust, Inc.)

Terms of the Notes. The following terms ~~relating~~ relate to the ~~Notes are hereby established~~Notes: (a1) The Notes shall constitute a ~~series~~ Series of ~~Securities~~ Securities, having the title ~~as stated in Exhibit B hereto and shall be designated as~~ “6.100% Senior ~~Securities under the Indenture.~~ Notes due 2033.” (2) The Notes shall ~~bear a CUSIP number~~ be issued at one hundred percent (100%) of the principal amount thereof, other than any offering discounts pursuant to the initial offering and ~~an ISIN number as stated in Exhibit B hereto~~resale of the Notes. (b3) The aggregate principal amount of the Notes (the “Initial Notes”) that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be ~~as stated in Exhibit B attached hereto~~$800,000,000. ~~Under a Board Resolution~~The Company may, ~~Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the Company may~~ from time to time, without the consent of the Holders of the Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as (except for the ~~Notes. Any~~ issue price, the issue date and, if applicable, the payment of interest accruing prior to the issue date of such Additional Notes and the ~~existing~~ first payment of interest following the issue date of such Additional Notes) as the Initial Notes. The Initial Notes ~~will~~ and any Additional Notes shall each constitute a single ~~series~~ Series under the Indenture and all references to the ~~relevant Notes herein~~ Note shall include the Initial Notes and any Additional ~~Notes~~ Notes, unless the context otherwise requires; provided that if the Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, the Additional Notes will have one or more separate CUSIP numbers. The maximum aggregate principal amount of Additional Notes shall be unlimited. (c4) The entire outstanding principal of the Notes shall be payable on ~~the maturity date as identified on Exhibit B attached hereto~~March 15, 2033, unless redeemed or repurchased prior to that date. (d5) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be 6.100% per year, subject to adjustment upon the ~~percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if~~ occurrence of certain ratings-based events with respect to the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")pursuant to Section 1.9 of this Fourth Supplemental Indenture. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto, or~~ the most recent Interest Payment Date (as defined below) to or for which interest has been paid or duly provided ~~for; the Interest Payment Dates~~ for ~~the Notes shall be as identified in Exhibit B attached hereto of each year~~or, ~~commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (~~if ~~an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and~~ no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, from the original issue date of the Notes. The dates on ~~any~~ which the Company will pay interest for the Notes shall be March 15 and September 15 of each year, beginning September 15, 2023 (each such date an “Interest Payment Date~~, will~~ ”). Interest shall be ~~paid~~ payable on each Interest Payment Date to the ~~Person in whose name the Note (or one or more predecessor Notes) is registered~~ Holders of record at the close of business on the ~~Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day)~~March 1 and September 1, as the case may be, ~~next~~ immediately preceding ~~such~~ the relevant Interest Payment ~~Date~~Date (in connection with the Notes, a “regular record date”). The ~~initial~~ basis upon which interest ~~payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date,~~ shall be ~~equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will~~ computed shall be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. All dollar amounts resulting from the calculation of interest shall be rounded to the nearest cent. (e6) The Notes shall be ~~initially~~ issuable in ~~global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially~~ whole in the form of ~~Exhibit A hereto. Each~~ one or more registered Global ~~Note shall represent~~ Securities, and the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary Depositary for such Global ~~Notes (the "Depositary")~~ Securities shall be The Depository Trust Company, New York, New York. The ~~Security Registrar with respect to the Global~~ Notes shall be substantially in the ~~Trustee. (g)~~ form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. The Notes shall be ~~defeasible pursuant to Section 14.02 or Section 14.03~~ issuable in registered form in denominations of ~~the Base Indenture. Covenant defeasance contained~~ $2,000 and integral multiples of $1,000 in ~~Section 14.03 of the Base Indenture~~ excess thereof and shall ~~apply to the covenants contained~~ be denominated in ~~Sections 10.06 and 10.08 of the Indenture~~Dollars. (h7) The Notes ~~shall~~ may be ~~redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time,~~ redeemed at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days Company prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that NoteStated Maturity, in whole or in part, ~~at a price equal~~ as provided in Section 1.4 of this Fourth Supplemental Indenture. (8) The Company shall be required to ~~100%~~ and shall redeem the Notes if and to the extent required as provided in Section 1.5 of this Fourth Supplemental Indenture. (9) The Notes will not have the benefit of any sinking fund. (10) The Notes are not convertible into shares of common stock or other securities of the ~~principal amount~~ Company. (11) The additional restrictive covenants set forth in Section 1.7 of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option this Fourth Supplemental Indenture shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the ~~Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a~~Notes.

Appears in 1 contract

Sources: Fourth Supplemental Indenture (Trimble Inc.)

Terms of the Notes. ~~The following terms relating to the Notes are hereby established:~~ (a) There is hereby established a new Series of Securities to be issued under the Indenture to be designated as the Company’s “3.500% Notes due 2027.” The Notes shall ~~constitute a series of Securities having~~ be issued in registered form substantially in the ~~title~~ form attached as ~~stated~~ Exhibit A hereto, in ~~Exhibit B hereto~~ each case with such appropriate insertions, omissions, substitutions and ~~shall be designated~~ other variations as ~~Senior Securities under~~ are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may deem appropriate or as may be required or appropriate to comply with any laws or with any rules made pursuant thereto or with the rules of any securities exchange or automated quotation system on which the Notes may be listed or traded, or to conform to general usage, or as may, consistently with the Indenture, be determined by the Officers executing such Notes, as evidenced by their execution thereof. The Notes shall ~~bear~~ be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Base Indenture as supplemented and amended by this Third Supplemental Indenture (including the Form of Note attached as Exhibit A hereto, the terms of which are incorporated by reference herein and shall be deemed to be a ~~CUSIP number and an ISIN number as stated in Exhibit B hereto~~part of this Third Supplemental Indenture). (b) The aggregate principal amount of the Notes ~~that~~ which may be ~~initially~~ authenticated and delivered ~~under the Indenture (except~~ pursuant hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for ~~Notes authenticated and delivered upon registration of, transfer of, or~~ original issue in ~~exchange for, or in lieu of, other Notes~~ an aggregate principal amount of $300,000,000 pursuant to ~~Sections 3.04, 3.05, 3.06, 9.06 or 11.07~~ Section 2.04 of the Base Indenture~~) shall~~ . The aggregate principal amount of the Notes to be ~~as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement,~~ issued hereunder may be increased at any time hereafter and the ~~Company~~ Series may ~~from time to time,~~ be reopened for issuances of additional Notes without the consent of any Holder. The Notes issued on the ~~Holders of Notes, issue~~ date hereof and any such additional Notes ~~(in any such case "Additional Notes") having~~ that may be issued hereafter shall be part of the same ~~ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series~~ Series of Securities for all purposes under the ~~Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires~~Indenture. (c) The ~~entire outstanding principal~~ Stated Maturity of the Notes shall be ~~payable on the maturity date as identified on Exhibit B attached hereto~~April 6, 2027. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate ~~at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the~~ or rates at which the Notes shall bear interest, the date or dates from which such interest shall accrue, the interest payment dates on which any such interest shall be payable and the ~~percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate"~~ regular record date for any interest payable on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be as identified in Exhibit B attached hereto of each year, commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable any interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Datedate, and the ~~subsequent interest periods will be the periods from~~ other terms, conditions and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion provisions of the Notes, ~~the Trustee will determine the method for selecting the particular Notes to be redeemed,~~ in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicableeach case, shall be ~~so specified under "Survivor's Option" on~~ as set forth in the Form of Note attached as Exhibit ~~B attached~~ A hereto~~. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment~~, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance terms of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice are incorporated by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of areference herein.

Appears in 1 contract

Sources: Third Supplemental Indenture (Eaton Vance Corp)

Terms of the Notes. The following terms ~~relating~~ relate to the ~~Notes are hereby established~~Notes: (a) The Notes shall constitute a separate series of Securities under the Base Indenture having the title ~~as stated in Exhibit B hereto and shall be designated as~~ “Senior ~~Securities under the Indenture. The~~ Floating Rate Notes ~~shall bear a CUSIP number and an ISIN number as stated in Exhibit B hereto~~due 2021.” (b) The aggregate principal amount of the Notes (the “Initial Notes”) that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be ~~as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the~~ $650,000,000. (c) The Company may from time to time, without the consent of the Holders of the Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ranking and the same interest ~~rate~~rate provisions, maturity and other terms (except for the issue date and, in some cases, the public offering price and the first interest payment date) as the Initial Notes. The aggregate principal amount of the Additional Notes shall be unlimited. (d) Any Additional Notes and the ~~existing~~ Initial Notes ~~will~~ shall constitute a single series under the Indenture and all references to the ~~relevant~~ Notes ~~herein~~ shall include the Initial Notes and any Additional Notes unless the context otherwise requires. In the above case, if any such Additional Notes are not fungible with the previously issued Notes for U.S. federal income tax purposes, such Additional Notes will be issued with a different CUSIP number as the previously issued Notes, as applicable. (ce) The entire outstanding principal of the Notes shall be payable on ~~the maturity date as identified on Exhibit B attached hereto~~March 1, 2021. (df) If The interest rate for the ~~Notes are identified~~ Initial Interest Period means the Three-Month LIBOR, as ~~"Fixed"~~ determined on ~~Exhibit B~~August 15, 2017, plus a margin of 0.95%. Thereafter, the interest rate ~~at which the Notes shall bear interest shall~~ for any Interest Period will be the ~~percentage per annum identified~~ Three-Month LIBOR, as ~~the "Coupon Rate"~~ determined on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable ~~footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable~~ Interest ~~Rate")~~Determination Date, plus a margin of 0.95%. ~~The date from which interest shall accrue~~ Interest on the Notes shall be computed and paid on the ~~date specified~~ basis of the actual number of days in ~~Exhibit B attached hereto~~the relevant Initial Interest Period or Interest Period divided by 360. The interest rate will be reset quarterly on each Interest Reset Date. The interest rate applicable to each Interest Period commencing on the related Interest Reset Date, or August 17, 2017 in the case of the Initial Interest Period, will be the rate determined as of the applicable Interest Determination Date. (g) Interest shall be payable quarterly on each Interest Payment Date to Holders of record on the Record Date. Interest on the Notes shall accrue from and including the date the Notes are issued or from and including the most recent Interest Payment ~~Date to which interest has been paid or provided for;~~ Date. If any Interest Payment Date, other than the maturity date, would otherwise be a day that is not a Business Day, the Interest Payment ~~Dates for the Notes~~ Date shall be postponed to the immediately succeeding day that is a Business Day, with the same force and effect as ~~identified in Exhibit B attached hereto of each year, commencing~~ if made on the date ~~as identified as~~ such payment was due, except that if that Business Day is in the ~~1st Coupon Date in Exhibit B hereto (if an~~ immediately succeeding calendar month, the Interest Payment Date shall be the immediately preceding Business Day. If the maturity date of the Notes falls on a day that is not a Business Day, ~~then~~ the ~~applicable~~ payment of principal and interest ~~payment~~ will be made on the next succeeding Business ~~Day~~ Day, and no ~~additional~~ interest on such payment will accrue ~~as a result of such delayed payment); the initial interest period will be~~ for the period from and after the maturity date. The Company shall make payments in respect of the Notes in global form (including principal, premium, if any, and interest) by wire transfer of immediately available funds to the ~~date as identified as~~ accounts specified by DTC or its nominee. The interest rate on the ~~1st Coupon Date in Exhibit B hereto (or the most recent~~ Notes shall be reset quarterly on each Interest ~~Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment~~ Reset Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided ~~for, on~~ that if any Interest ~~Payment Date, will~~ Reset Date would otherwise be ~~paid to the Person in whose name the Note (or one or more predecessor Notes)~~ a day that is ~~registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or~~ not a Business Day), as the ~~case may be~~Interest Reset Date will be postponed to the immediately succeeding day that is a Business Day, ~~next preceding such~~ except that if that Business Day is in the immediately succeeding calendar month, the Interest ~~Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon~~ Reset Date ~~in Exhibit B hereto, or the initial Interest Payment Date,~~ shall be ~~equal to amount identified as~~ the ~~1st Coupon Amount~~ immediately preceding Business Day. Promptly upon calculation, the Calculation Agent will inform the Company of the interest rate for the next Interest Period. Upon request from any Holder of the Notes, the Calculation Agent will provide the interest rate in ~~Exhibit B hereto. Payment of principal of (and premium~~effect for such Notes for the current Interest Period and, if ~~any~~it has been determined, the interest rate to be in effect for the next Interest Period. (h) ~~and~~ All percentages resulting from any ~~such~~ calculation of the interest rate on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed rounded to the ~~address~~ nearest one millionth of ~~the Person entitled thereto as~~ a percentage point with five ten millionths of a percentage point rounded upwards (e.g., 9.8765445% (or .098765445) would be rounded to 9.876545% (or .09876545)), and all dollar amounts used in or resulting from such ~~address shall appear in the Security Register. Interest~~ calculation on the Notes will be ~~computed on~~ rounded to the ~~basis of a 360~~nearest cent (with one-~~day year of twelve 30-day months~~half cent being rounded upwards). (ei) ~~The~~ Notwithstanding the foregoing, the interest rate on the Notes ~~shall~~ will in no event be ~~initially issuable~~ higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application. Additionally, the interest rate on the Notes will in ~~global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall~~ no event be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenturelower than zero. (fj) The ~~depositary~~ Depositary for ~~such~~ the Global Notes ~~(the "Depositary")~~ shall be The Depository Trust Company, New York, New ~~York.~~ York (“DTC”). (k) The ~~Security Registrar with respect~~ Notes that are issued in a registered offering pursuant to the Securities Act shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. Such Global Notes shall be referred to collectively herein as the “Global Notes,” and shall be deposited with the Trustee, as custodian for the Depositary or its nominee, for credit to an account of an Agent Member, and shall be duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of a Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided. (gl) Each Global Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the applicable legends set forth in Exhibit A (the “Note Legends”) on the face thereof until the Note Legends are removed or not required. (m) The Notes shall be ~~defeasible pursuant~~ denominated in Dollars and shall be issuable in minimum denominations of $2,000 or any integral multiple of $1,000 in excess thereof. (n) The Notes may be redeemed by the Company prior to the maturity date, as provided in Section ~~14.02 or Section 14.03~~ 1.05. (o) The Notes will not have the benefit of any sinking fund. (p) Except as provided herein, the Holders of the ~~Base Indenture. Covenant defeasance contained~~ Notes shall have no special rights in ~~Section 14.03 of~~ addition to those provided in the Base Indenture ~~shall apply to~~ upon the ~~covenants contained in Sections 10.06 and 10.08~~ occurrence of ~~the Indenture~~any particular events. (~~h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i~~q) The Notes will be ~~redeemable in whole or in part at any time or from time to time~~direct, ~~at the option~~ unconditional, senior unsecured and unsubordinated obligations of the Company, ~~on or after~~ and will rank equal in right of payment to all of the ~~date identified as~~ Company’s other existing and future senior unsecured indebtedness and among themselves, and senior in right of payment to any subordinated indebtedness the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemptionCompany may incur. (iir) ~~Notice~~ The Notes are not convertible into shares of ~~redemption shall be given in writing and mailed, first-class postage prepaid~~ common stock or ~~by overnight courier guaranteeing next-day delivery, to each Holder~~ other securities of the ~~Notes to be redeemed, not less than five~~ Company. (5s) ~~nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information~~ The restrictive covenants set forth in Section ~~11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will~~ 1.06 shall be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a.

Appears in 1 contract

Sources: Fourth Supplemental Indenture (DXC Technology Co)

Terms of the Notes. Pursuant to Section 2.01 of the Base Indenture, the Notes shall be substantially in the form annexed hereto as Exhibit A. The ~~following~~ terms ~~relating~~ and provisions contained in the form of the Notes annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of this Third Supplemental Indenture. The Company shall be entitled to issue Additional Notes under this Third Supplemental Indenture that shall have identical terms and conditions as the Initial Notes, other than with respect to the date of issuance and, if issued after February 15, 2013, the date from which interest thereon will begin to accrue. The Initial Notes ~~are hereby established: (a) The~~ issued on the Issue Date and any Additional Notes shall ~~constitute~~ be part of the same series as the Initial Notes and will be treated as a ~~series~~ single class for all purposes under this Third Supplemental Indenture and the Base Indenture. The Initial Notes issued on the Issue Date will be represented by one or more Global Notes in the name of ~~Securities having~~ Cede & Co., as a nominee of the ~~title as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture~~Depositary, The Depository Trust Company. The Notes shall ~~bear~~ be in initial denominations of $2,000 and any integral multiple of $1,000 in excess thereof. With respect to any Additional Notes, in addition to any other requirements set forth in the Base Indenture, the Company shall set forth in an Officers’ Certificate, a ~~CUSIP number and an ISIN number as stated in Exhibit B hereto.~~copy of which shall be delivered to the Trustee, the following information: (bi) ~~The~~ the aggregate principal amount of ~~the~~ such Additional Notes ~~that may~~ to be ~~initially~~ authenticated and delivered ~~under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes~~ pursuant to ~~Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of~~ this Third Supplemental Indenture; (ii) the ~~Base Indenture) shall be as stated in Exhibit B attached hereto. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement~~issue price, the ~~Company may from time to time, without~~ issue date and the ~~consent~~ CUSIP number of ~~the Holders of Notes, issue additional Notes (in any~~ such ~~case "~~Additional Notes") having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire outstanding principal of the Notes shall be payable on the maturity date as identified on Exhibit B attached hereto. (d) If the Notes are identified as "Fixed" on Exhibit B, the rate at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest shall accrue on the Notes shall be on the date specified in Exhibit B attached hereto, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be as identified in Exhibit B attached hereto of each year, commencing on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee in New York, New York 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; provided, however, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the ~~option~~ meaning of Section 1273 of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture.Code; and (iii) ~~Any exercise of the Company's option to redeem the~~ whether such Additional Notes will be ~~done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular~~ issued as Global Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Certificated Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election whether and to ~~cause~~ what extent the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Additional Notes will ~~be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a~~contain additional legends.

Appears in 1 contract

Sources: Third Supplemental Indenture (Olin Corp)

Terms of the Notes. Section 1.01 The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Senior Securities having the title ~~as stated in Exhibit B hereto and shall be designated as Senior Securities under the Indenture.~~ “[_____]% Notes due 2029.” The Notes shall bear a CUSIP number of [__________] and an ISIN number ~~as stated in Exhibit B hereto~~of [__________]. (b) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to ~~Sections 3.04~~Section 304, ~~3.05~~305, ~~3.06~~306, ~~9.06~~ 906, 1107 or ~~11.07~~ 1305 of the Base Indenture, and except for any Securities that, pursuant to Section 303 of the Base Indenture, are deemed never to have been authenticated and delivered under the Indenture) shall be ~~as stated~~ $[__________] (or up to $[__________] aggregate principal amount if the underwriters’ over-allotment option is exercised in ~~Exhibit B attached hereto~~full). Under a Board Resolution, Officers' ’ Certificate pursuant to Board Resolutions or an a future supplemental indenture ~~supplement~~to the Indenture (a “Future Supplemental Indenture”), the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "“Additional Notes"”) having the same ranking and the same interest rate, maturity and other terms as the ~~Notes~~Notes (except the issue date, the date from which interest accrues and, in some cases, the first interest payment date), provided, however, that if any such Additional Notes are not fungible with the existing Notes for U.S. federal income tax purposes, such Additional Notes will have separate CUSIP and ISIN numbers. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The Stated Maturity of the Notes shall be [__________], 2029. The entire outstanding principal of the Notes shall be payable on the ~~maturity date as identified on Exhibit B attached hereto~~Stated Maturity, unless earlier redeemed or repurchased in accordance with the provisions of the Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ [_____]% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")annum. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~[__________], 2024 or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ March 31, June 30, September 30 and December 31 of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ [__________], 2024 (provided that, if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for)~~[__________], 2024, to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more ~~predecessor Notes~~Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ March 15, June 15, September 15 and December 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of the principal of (and premium, if any, on) and any such interest on the Notes will be made at the ~~Corporate Trust Office~~ office of the Trustee ~~in New York~~located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ~~New York~~ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Great Elm Capital Corp. ([_____]% Notes due 2029) and at such other address as designated by the Trustee, 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; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided, further, however, that so long as the Notes are registered to Cede & Co., such payment will be made by wire transfer in accordance with the procedures established by The Depository Trust Company and the Trustee. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this Seventh Supplemental Indenture. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections ~~2.03~~ 203 and ~~3.05~~ 305 of the Base Indenture. (f) The depositary for such Global Notes (the "“Depositary"”) shall be The Depository Trust Company, New York, New York. The Security Registrar with respect to the Global Notes shall be the Trustee. (g) The Notes shall be defeasible pursuant to Section ~~14.02~~ 1402 or Section ~~14.03~~ 1403 of the Base Indenture. Covenant defeasance contained in Section ~~14.03~~ 1403 of the Base Indenture shall apply to the covenants contained in Sections ~~10.06~~ 1006, 1009 and ~~10.08~~ 1010 of the Indenture. (h) The Notes shall be redeemable pursuant to Section ~~11.01~~ 1101 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after ~~the date identified as the Optional Redemption Date in Exhibit B hereto~~[__________], 2026, at a redemption price equal to 100% of ~~$1,000 per Note~~ the outstanding principal amount thereof, plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and electronically delivered through The Depository Trust Company or mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than ~~five~~ ten (510) nor more than sixty (60) days prior to the Redemption Date, at the Holder's ’s address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section ~~11.04~~ 1104 of the Base Indenture. (iii) Any exercise of the Company's ’s option to redeem the Notes will be done in compliance with the Investment Company Act, to the extent applicable. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with Section 1103 of the Base Indenture, the Investment Company ~~Act~~Act and the rules of any national securities exchange or quotation system on which the Notes are listed, in each case to the extent applicable. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The ~~"Survivor's Option" is defined in Section 2.01 and, if applicable~~ Notes shall not be subject to ~~the Notes, is a provision in a Note~~ any sinking fund pursuant to ~~which the Company agrees to repay that Note, if requested by the authorized representative~~ Section 1201 of the ~~beneficial owner~~ Base Indenture. (j) The Notes shall be issuable in denominations of ~~that Note, following~~ $25 and integral multiples of $25 in excess thereof. (k) The Company will not pay any Additional Amounts on the ~~death~~ Notes pursuant to Section 1004 of the ~~beneficial owner~~ Base Indenture. (l) Holders of the ~~Note, so long as~~ Notes will not have the ~~Note was owned by that beneficial owner or~~ option to have the ~~estate of that beneficial owner at least six months~~ Notes repaid prior to the ~~request~~Stated Maturity. ~~The Survivor's Option, if applicable,~~ Nothing in this Section shall ~~be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment,~~ prohibit purchases by the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the ~~Note. The death of a person who~~open market, ~~during his~~ private transactions or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the ~~request for repayment~~Stated Maturity. (m) The Notes are hereby designated as “Senior Securities” under the Indenture. (n) For the avoidance of doubt, ~~(b)~~ the reference in Section 301 of the Base Indenture to Senior Securities being unsubordinated and ranking equally and “pari passu” to all other Senior Indebtedness is intended to reflect that, notwithstanding that the ~~death of~~ Senior Securities are unsecured, the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner Senior Securities rank equally with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only Senior Indebtedness solely with respect to the ~~deceased holder's interest~~ right to seek and enforce payment from the Company but not in ~~the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common~~terms of any collateral security or access to collateral or right to distributions or payments of proceeds of any collateral (including without limitation, ~~the death of either shall be deemed the death~~ cash, accounts or other assets of the ~~holder~~ Company or any of ~~the Note~~its subsidiaries), and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which ~~exercises of any Survivor's Option applicable to~~ the ~~Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of a~~Senior Indebtedness has priority at all times.

Appears in 1 contract

Sources: Seventh Supplemental Indenture (Great Elm Capital Corp.)

Terms of the Notes. The following terms relating to the Notes are hereby established: (a) The Notes shall constitute a series of Securities having the title ~~as stated in Exhibit B hereto~~ “6.250% Notes due 2030” and shall be designated as Senior Securities under the Indenture. The Notes offered and sold to QIBs in reliance on Rule 144A shall bear a CUSIP number of ▇▇▇▇▇▇▇▇▇ and an ISIN number ~~as stated~~ of US55354LAA70. The Notes offered and sold in ~~Exhibit B hereto~~reliance on Regulation S shall bear a CUSIP number of ▇▇▇▇▇▇▇▇▇ and an ISIN number of USU6076BAA62. The Exchange Notes or any other Unrestricted Global Notes issued in exchange for the Initial Notes pursuant to the Indenture shall bear a CUSIP number of ▇▇▇▇▇▇▇▇▇ and an ISIN number of US55354LAB53. (b) The aggregate principal amount of the Initial Notes that may be initially authenticated and delivered under the Indenture (except for Initial Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be ~~as stated~~ $500,000,000. In addition, Exchange Notes in ~~Exhibit B attached hereto~~a like principal amount of the Initial Notes or Additional Notes may be authenticated and delivered under this Indenture for issue (i) in a Registered Exchange Offer pursuant to the Registration Rights Agreement or (ii) otherwise pursuant to an effective registration statement under the Securities Act. Under a Board Resolution, ~~Officers'~~ Officer’s Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such ~~case "~~case, other than any Exchange Notes, “Additional Notes"”) having the same ranking and the same interest rate, ~~maturity~~ maturity, CUSIP number and other terms as the Notes; provided that such Additional Notes must be part of the same issue as the Notes for U.S. federal income tax purposes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The entire ~~outstanding~~ Outstanding principal amount of the Notes shall be payable on May 31, 2030, unless earlier redeemed or repurchased in accordance with the ~~maturity date as identified on Exhibit B attached hereto~~provisions of this First Supplemental Indenture. (d) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ 6.250% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "“Applicable Interest Rate"”). The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto~~April 2, 2025 or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ May 31 and November 30 of each year, commencing ~~on the date as identified as the 1st Coupon Date in Exhibit B hereto~~ November 30, 2025 (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including ~~the date as identified as the 1st Coupon Date in Exhibit B hereto~~ April 2, 2025 (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be ~~the record dates as identified in Exhibit B hereto~~ May 17 or November 17 (whether or not a Business Day), as the case may be, ~~next~~ immediately preceding such Interest Payment Date. The initial interest payment on the Notes on the date as identified as the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office of the Trustee ~~in New York, New York~~ 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; provided, however, that at the option of the ~~Company~~ Company, payment of interest may be made by (i) check mailed to the address of the Person entitled thereto as such address shall appear in the Security ~~Register~~Register or (ii) transfer to an account maintained by the payee located in the United States. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes offered on the date hereof will be distributed initially only to (i) persons reasonably believed to be QIBs in reliance on Rule 144A and (ii) Non-U.S. Persons in reliance on Regulation S. Such Notes may thereafter be transferred only in accordance with the provisions of the Indenture. (f) The Notes shall be initially issuable in global form (each such Note, a "“Global Note"” and together, the “Global Notes”). The Global Notes and the Trustee's ’s certificate of authentication thereon shall be substantially in the form of Exhibit A ~~hereto~~to this First Supplemental Indenture. Each Global Note shall represent the ~~outstanding~~ Outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of ~~outstanding~~ Outstanding Notes from time to time endorsed thereon and that the aggregate amount of ~~outstanding~~ Outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of ~~outstanding~~ Outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Base Indenture. (fi) The Notes offered and sold to QIBs in reliance on Rule 144A shall be issued initially in the form of one or more 144A Global Notes and shall bear the applicable legends set forth in Section 1.02(f)(i)(A) hereof, which shall be deposited with, or on behalf of, the Depositary, or will remain in the custody of the Trustee pursuant to an agreement between the Depositary and the Trustee. (ii) The Notes offered and sold in reliance on Regulation S shall be issued initially in the form of one or more Regulation S Global Notes and shall bear the applicable legends set forth in Section 1.02(f)(i)(A) hereof, which shall be deposited with, or on behalf of, a custodian for the Depositary, or will remain in the custody of the Trustee pursuant to an agreement between the Depositary and the Trustee, for credit to the respective accounts of the purchasers (or to such other accounts as they may direct) at Euroclear or Clearstream. (iii) Unrestricted Global Notes shall be issued in accordance with Section 1.02(b)(vi) hereof and shall be deposited, duly executed by the Company and authenticated by the Trustee as hereinafter provided. (g) The depositary for such Global Notes ~~(the "Depositary")~~ shall be ~~The Depository Trust Company, New York, New York~~the Depositary. The Security Registrar with respect to the Global Notes shall be the Trustee. (gh) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections ~~10.06~~ 10.07 and 10.08 of the Base Indenture and Article Six of this First Supplemental Indenture. (hi) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (ij) ~~The Notes will be redeemable in whole or in part at any time or from time~~ Prior to ~~time~~April 30, at 2030 (one month prior to their maturity date) (the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding“Par Call Date”), the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to Company may redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option~~, repay or repurchase that Note~~, in whole or in part, at any time and from time to time, at a ~~price~~ Redemption Price calculated by the Company (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (a) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 40 basis points less (b) interest accrued to the Redemption Date, and (ii) 100% of the principal amount of the Notes to be redeemed. plus, in either case, accrued and unpaid interest thereon to the Redemption Date. On or after the Par Call Date the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the ~~deceased beneficial owner's interest in that Note~~ Notes being redeemed plus accrued and unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aRedemption Date.

Appears in 1 contract

Sources: First Supplemental Indenture (MSD Investment Corp.)

Terms of the Notes. The following terms ~~relating~~ relate to the ~~Notes are hereby established~~Notes: (a1) The Notes shall constitute a separate series of ~~Securities~~ Notes having the title ~~as stated in Exhibit B hereto and shall be designated as~~ “1.500% Senior ~~Securities under the Indenture. The~~ Notes ~~shall bear a CUSIP number and an ISIN number as stated in Exhibit B hereto~~due 2020”. (b2) The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture (~~except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of~~ the ~~Base Indenture~~“Initial Notes”) shall be ~~as stated in Exhibit B attached hereto~~€425,000,000. ~~Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the~~ The Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (~~in any such case "~~the “Additional Notes"”) having the same ~~ranking and~~ terms (except for the ~~same~~ issue date, offering price and, if applicable, the first interest ~~rate, maturity and other terms~~ payment date) as the Initial Notes. Any Additional Notes and the ~~existing~~ Initial Notes ~~will~~ shall together constitute a single series under the Indenture and all references to the ~~relevant~~ Notes ~~herein~~ shall include both the Initial Notes and the Additional ~~Notes~~ Notes, unless the context otherwise requires~~. (c)~~ . The aggregate principal amount of the Notes shall be unlimited. The entire ~~outstanding~~ Outstanding principal amount of the Notes shall be payable on December 1, 2020. The principal of each Note payable at maturity or upon earlier redemption shall be paid against presentation and surrender of such Note at the ~~maturity date as identified on Exhibit B attached hereto~~office or agency maintained for such purposes in London, initially, the Specified Office of the London Paying Agent. (d3) ~~If the Notes are identified as "Fixed" on Exhibit B, the~~ The rate at which the Notes shall bear interest shall be ~~the percentage~~ 1.500% per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate")annum. The date from which interest shall accrue on the Notes shall be ~~on the date specified in Exhibit B attached hereto, or~~ the most recent Interest Payment Date to which interest has been paid or provided ~~for; the~~ for or, if no interest has been paid, from November 24, 2015. The Interest Payment Dates for the Notes shall be ~~as identified in Exhibit B attached hereto~~ December 1 of each year, ~~commencing~~ beginning December 1, 2016, until the principal is paid or made available for payment. Interest shall be payable in arrears on the date as identified as the 1st Coupon Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent each Interest Payment Date to ~~which interest has been paid or provided for), to, but excluding,~~ the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid to the Person in whose name the Note (or one or more predecessor Notes) is registered holders of record at the close of business on the ~~Regular Record Date for such interest~~November 15 prior to each Interest Payment Date, ~~which shall be the record dates as identified in Exhibit B hereto (~~whether or not a Business Day), as the case may bebe (each such date being a “regular record date”). Interest on the notes shall be computed on the basis of an ACTUAL/ACTUAL (ICMA) (as defined in the rulebook of ICMA) day count convention. (4) The Notes shall be issuable in whole in the form of one or more registered Global Securities, ~~next preceding such Interest Payment Date~~without coupons, which shall be deposited with, or on behalf of, the applicable Depositary and shall be registered in the name of the Common Depositary for, and in respect of interests held through, the applicable Depositary. The ~~initial interest payment on~~ Notes shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. The Notes shall be issuable in denominations of €100,000 or any integral multiple of €1,000 in excess thereof. (5) The Notes may be redeemed at the option of the Company prior to the maturity date, as provided in Section 1.3 hereof. (6) The Notes shall not have the benefit of any sinking fund. (7) Except as provided herein, the holders of the Notes on shall have no special rights in addition to those provided in the ~~date~~ Base Indenture upon the occurrence of any particular events. (8) The Notes shall be general unsecured and unsubordinated obligations of the Company and shall be ranked equally among themselves. (9) The Notes are not convertible into shares of common stock or other securities of the Company. (10) The covenants set forth in Section 1.4 hereof shall be applicable to the Notes. (11) The transfer and exchange provisions set forth in Section 2.05 of the Base Indenture shall be applicable to the Notes, except that the first paragraph of Section 2.05(c) shall be modified with respect to the Notes as ~~identified~~ follows: A Global Security may not be transferred except as a whole by the Common Depositary for the Notes to a nominee of such Common Depositary, by a nominee of such Common Depositary to such Common Depositary or to another nominee of such Common Depositary or by such Common Depositary or any such nominee to a successor Common Depositary for the Notes or a nominee of such successor Common Depositary. If at any time the Common Depositary notifies the Company that it is unwilling, unable or no longer qualified to continue as Common Depositary for the Notes and a successor Common Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the provisions of Section 2.11 of the Base Indenture shall no longer be applicable to the Notes. In addition, (i) if the Company at any time notifies the Trustee in writing that the Notes shall no longer be represented by a Global Security, the provisions of Section 2.11 of the Base Indenture shall no longer apply to the Notes and (ii) if the Trustee so requests, upon an Event of Default, the Notes shall no longer be represented by a Global Security and the provisions of Section 2.11 of the Base Indenture shall no longer apply to the Notes. In any such event the Company shall execute Notes in the form of Definitive Securities in minimum denominations of €100,000 principal amount and integral multiples of €1,000 in excess thereof, and in an aggregate principal amount equal to the principal amount of the Global Security representing such Notes and, subject to Section 2.05 of the Base Indenture, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, if applicable, shall authenticate and deliver such Definitive Securities in exchange for such Global Security. Upon the exchange of the Global Security of such Definitive Securities, the Global Security shall be canceled by the Trustee. Such Definitive Securities shall be registered in such names and in such authorized denominations as the ~~1st Coupon Date in Exhibit B hereto~~Common Depositary, pursuant to instructions from its Participants or ~~the initial Interest Payment Date~~indirect participants or otherwise, shall ~~be equal~~ in writing instruct the Trustee. The Trustee shall deliver the Notes to ~~amount identified as~~ the ~~1st Coupon Amount~~ Common Depositary for delivery to the Persons in ~~Exhibit B hereto. Payment~~ whose names the Notes are so registered. (12) All payments of principal of of, and interest (~~and premium~~including Additional Amounts, if any) and ~~any such interest on~~ premium (if any) on, the Notes ~~will~~ shall be ~~made at the Corporate Trust Office of the Trustee~~ payable in ~~New York, New York 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~~euro; provided, however, that if, on or after November 13, 2015, euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes shall be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro shall be converted into U.S. dollars at the ~~option~~ rate mandated by the U.S. Federal Reserve Board as of the ~~Company payment~~ close of ~~interest may be made by check mailed~~ business on the second Business Day prior to the ~~address of the Person entitled thereto as such address shall appear~~ relevant payment date or, in the ~~Security Register. Interest on~~ event the ~~Notes will be computed~~ U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of ~~a 360-day year~~ the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Any payment in respect of ~~twelve 30-day months~~the Notes so made in U.S. dollars shall not constitute an Event of Default under the Notes and the Indenture. Neither the Trustee nor the London Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any references elsewhere in the Indenture or the Notes to payments being made in euro notwithstanding shall be made in U.S. dollars to the extent set forth in this Section 1.2(12). (e13) The London Paying Agent for the Notes shall initially be ~~initially issuable in global form (each such Note~~The Bank of New York Mellon, ~~a "Global Note")~~London Branch. The ~~Global~~ Company hereby initially designates the Specified Office of the London Paying Agent as the office to be maintained by it where Notes may be presented for payment, registration of transfer or exchange, and where notices to or demands upon the ~~Trustee's certificate~~ Company in respect of ~~authentication thereon shall be substantially in~~ the ~~form of Exhibit A hereto. Each Global Note shall represent the outstanding~~ Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the ~~Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall~~ Indenture may be ~~The Depository Trust Company, New York, New York~~served. The Security Registrar ~~with respect to~~ for the ~~Global~~ Notes shall initially be The Bank of New York Mellon, London Branch. The Company reserves the ~~Trustee~~right at any time to vary or terminate the appointment of any London Paying Agent or Security Registrar, to appoint additional or other London Paying Agents or Security Registrars and to approve any change in the office through which any Paying Agent or Security Registrar acts. (g14) ~~The~~ In order to provide for all payments due on the Notes as the same shall become due, the Company shall cause to be ~~defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained in Section 14.03 of the Base Indenture shall apply~~ paid to the ~~covenants contained~~ London Paying Agent, no later than 10:00 a.m. London time on the Business Day prior the payment date of each Note, at such bank as the London Paying Agent shall previously have notified to the Company, in ~~Sections 10.06 and 10.08 of the Indenture~~immediately available funds sufficient to meet all payments due on such Notes. (h15) ~~The Notes~~ Notwithstanding any other provision of this Supplemental Indenture, the Trustee and London Paying Agent shall be ~~redeemable pursuant~~ entitled to ~~Section 11.01~~ make a deduction or withholding from any payment which it makes under this Supplemental Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the ~~Base Indenture and as follows: (i) The Notes will be redeemable~~ relevant holder failing to satisfy any certification or other requirements in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion respect of the Notes, in which event the Trustee ~~will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in~~ or London Paying Agent shall make such payment ~~of the Redemption Price, on~~ after such withholding or deduction has been made and ~~after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable~~ shall account to the ~~Notes, is a provision in a Note pursuant~~ relevant authorities for the amount so withheld or deducted and shall have no obligation to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner gross up any payment hereunder or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of pay any ~~Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal~~ additional amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only with respect to such deceased person's interest in the Note. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial ownership interests in a Note will be deemed the death of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise result of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of awithholding tax.

Appears in 1 contract

Sources: Tenth Supplemental Indenture (Thermo Fisher Scientific Inc.)

Terms of the Notes. ~~The following terms relating to the Notes are hereby established: (a)~~ The Notes shall ~~constitute a series of Securities having~~ be issued in fully registered form, in substantially the ~~title as stated~~ forms set forth in Exhibit A hereof (with respect to the Class A Notes) and Exhibit B ~~hereto~~ (with respect to the Class B Notes), in each case with such variations, omissions and ~~shall~~ insertions as may be ~~designated~~ required by the circumstances, as ~~Senior Securities under~~ may be required or permitted by the ~~Indenture~~Indenture and this First Terms Supplement, or be consistent with the Indenture and this First Terms Supplement and necessary or appropriate to conform to the rules and requirements of any governmental authority or any usage or requirement of law with respect thereto. The Notes may be issued only in Authorized Denominations. The Notes shall ~~bear a CUSIP number and an ISIN number~~ be dated as ~~stated in Exhibit B hereto. (b) The aggregate principal amount~~ of the Closing Date. Each Class of Notes that may be initially authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall ~~be as stated in Exhibit B attached hereto~~mature on its Final Maturity Date. Under a Board Resolution, Officers' Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case "Additional Notes") having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes herein shall include the Additional Notes unless the context otherwise requires. (c) The ~~entire outstanding principal of the~~ Notes shall be ~~payable~~ issued to a Securities Depository for use in a Book-Entry System in accordance with the provisions of Section 2.14 of the Indenture. Interest on the maturity date as identified on Exhibit B attached hereto. (d) If the Notes are identified as "Fixed" on Exhibit B, the rate at which the Notes shall bear interest shall be the percentage per annum identified as the "Coupon Rate" on Exhibit B attached hereto; and if the Notes are identified as "Step" on Exhibit B, the rates at which the Notes shall bear interest shall be the percentages per annum during the corresponding periods as identified in the applicable footnote under the "Coupon Rate" on Exhibit B attached hereto (the "Applicable Interest Rate"). The date from which interest each Note shall accrue on the ~~Notes~~ Outstanding Amount of such Note until such Note has been paid in full or payment has been duly provided for, as the case may be, and shall ~~be on~~ accrue from the ~~date specified in Exhibit B attached hereto,~~ later of the Closing Date or the most recent ~~Interest Payment~~ Distribution Date to which interest has been paid or duly provided for; . Each Note shall bear interest at an interest rate determined in accordance with the ~~Interest Payment Dates for~~ provisions and subject to the limitations set forth herein, and interest on Notes shall be ~~as identified in Exhibit B attached hereto of~~ paid for the related Interest Payment Period on each ~~year, commencing~~ Distribution Date (or on ~~the date as identified as the 1st Coupon~~ each Quarterly Distribution Date in Exhibit B hereto (if an Interest Payment Date falls on a day that is not a Business Day, then the applicable interest payment will be made on the next succeeding Business Day and no additional interest will accrue as a result of such delayed payment); the initial interest period will be the period from and including the date as identified as the 1st Coupon Date in Exhibit B hereto (or the most recent Interest Payment Date to which interest has been paid or provided for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods will be the periods from and including an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case ~~may be;~~ of the ~~interest so payable, and punctually paid or duly provided for, on any Interest Payment Date,~~ Class B Notes). Principal will be paid on the Notes on each Distribution Date (or on each Quarterly Distribution Date in the case of the Class B Notes) in an amount up to the ~~Person in whose name the Note (~~Noteholders' Principal Distribution Amount on such Distribution Date or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be the record dates as identified in Exhibit B hereto (whether or not a Business Day)Quarterly Distribution Date, as the case may be, ~~next preceding such Interest Payment Date~~in the order and priorities set forth in the Transfer and Servicing Agreement and the Indenture. ~~The initial interest payment on~~ Except as otherwise set forth in the ~~Notes on~~ Indenture and the ~~date as identified as~~ Transfer and Servicing Agreement, the 1st Coupon Date in Exhibit B hereto, or the initial Interest Payment Date, shall be equal to amount identified as the 1st Coupon Amount in Exhibit B hereto. Payment of principal of (and premium, if any) and any such interest on the Notes will be made at the Corporate Trust Office rights of the Trustee in New York, New York 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; provided, however, that at the option of the Company payment of interest may be made by check mailed Class B Noteholders to the address of the Person entitled thereto as such address shall appear in the Security Register. Interest on the Notes will be computed on the basis of a 360-day year of twelve 30-day months. (e) The Notes shall be initially issuable in global form (each such Note, a "Global Note"). The Global Notes and the Trustee's certificate of authentication thereon shall be substantially in the form of Exhibit A hereto. Each Global Note shall represent the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Indenture. (f) The depositary for such Global Notes (the "Depositary") shall be The Depository Trust Company, New York, New York. The Security Registrar receive distributions with respect to ~~the Global Notes~~ interest shall be subordinated to the ~~Trustee. (g) The Notes shall be defeasible pursuant to Section 14.02 or Section 14.03~~ prior rights of the ~~Base Indenture. Covenant defeasance contained in Section 14.03~~ Class A Noteholders to receive all payments of interest to which they are entitled and, after each Class of Notes has received the full amount of interest to which it is entitled, the rights of the ~~Base Indenture shall apply~~ Class B Noteholders to the covenants contained in Sections 10.06 and 10.08 of the Indenture. (h) The Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows: (i) The Notes will be redeemable in whole or in part at any time or from time to time, at the option of the Company, on or after the date identified as the Optional Redemption Date in Exhibit B hereto, at a redemption price of $1,000 per Note plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest period accrued to, but excluding, the date fixed for redemption. (ii) Notice of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Notes to be redeemed, not less than five (5) nor more than sixty (60) days prior to the Redemption Date, at the Holder's address appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base Indenture. (iii) Any exercise of the Company's option to redeem the Notes will be done in compliance with the Investment Company Act. (iv) If the Company elects to redeem only a portion of the Notes, the Trustee will determine the method for selecting the particular Notes to be redeemed, in accordance with the Investment Company Act. (v) Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes called for redemption hereunder. (i) The "Survivor's Option" is defined in Section 2.01 and, if applicable to the Notes, is a provision in a Note pursuant to which the Company agrees to repay that Note, if requested by the authorized representative of the beneficial owner of that Note, following the death of the beneficial owner of the Note, so long as the Note was owned by that beneficial owner or the estate of that beneficial owner at least six months prior to the request. The Survivor's Option, if applicable, shall be so specified under "Survivor's Option" on Exhibit B attached hereto. Upon the valid exercise of any Survivor's Option and the proper tender of that Note for repayment, the Company will, at its option, repay or repurchase that Note, in whole or in part, at a price equal to 100% of the principal amount of the deceased beneficial owner's interest in that Note plus unpaid interest accrued to the date of repayment. To be valid, any Survivor's Option must be exercised by or on behalf of the person who has authority to act on behalf of the deceased beneficial owner of the Note (including, without limitation, the personal representative or executor of the deceased beneficial owner or the surviving joint owner with the deceased beneficial owner) under the laws of the applicable jurisdiction. The death of a person holding a beneficial ownership interest in a Note as a joint tenant or tenant by the entirety with another person, or as a tenant in common with the deceased holder's spouse, will be deemed the death of a beneficial owner of that Note, and the entire principal amount of the Note so held will be subject to repayment by us upon request. However, the death of a person holding a beneficial ownership interest in a Note as tenant in common with a person other than such deceased holder's spouse will be deemed the death of a beneficial owner only receive distributions with respect to ~~such deceased person's interest in~~ principal shall be subordinated to the ~~Note. The death of a person who, during his or her lifetime, was entitled to substantially all~~ prior rights of the ~~beneficial ownership interests in a Note will be deemed the death~~ Class A Noteholders to receive all payments of the beneficial owner of that Note for purposes of any Survivor's Option, regardless of whether that beneficial owner was the registered holder of that Note, if entitlement to those interests can be established to the satisfaction of the Trustee. A beneficial ownership interest will be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act, community property or other joint ownership arrangements between a husband and wife. In addition, a beneficial ownership interest will be deemed to exist in custodial and trust arrangements where one person has all of the beneficial ownership interests in the applicable Note during his or her lifetime. The Company has the discretionary right to limit the aggregate principal ~~amount of Notes as~~ to which exercises of any Survivor's Option shall be accepted by us from authorized representatives of all deceased beneficial owners in any calendar year to an amount equal to the greater of $2,000,000 or 2% of the principal amount of all Notes outstanding as of the end of the most recent calendar year. The Company also has the discretionary right to limit to $250,000 in any calendar year the aggregate principal amount of Notes as to which exercises of any Survivor's Option shall be accepted by us from the authorized representative of any individual deceased beneficial owner of Notes in such calendar year. In addition, the Company will not permit the exercise of any Survivor's Option except in principal amounts of $1,000 and multiples of $1,000. An otherwise valid election to exercise any Survivor's Option may not be withdrawn. Each election to exercise any Survivor's Option will be accepted in the order that elections they are received by the Trustee, except for any Note the acceptance of which would contravene any of the limitations described in the preceding paragraph. Notes accepted for repayment through the exercise of any Survivor's Option normally will be repaid on the first interest payment date that occurs 20 or more calendar days after the date of the acceptance. For example, if the acceptance date of a Note tendered through a valid exercise of any Survivor's Option is September 1, 2011, and interest on that Note is paid monthly, the Company would normally, at its option, repay that Note on the interest payment date occurring on October 15, 2011, because the September 15, 2011 interest payment date would occur less than 20 days from the date of acceptance. Each tendered Note that is not accepted in any calendar year due to the application of any of the limitations described in the preceding paragraph will be deemed to be tendered in the following calendar year in the order in which all such Notes were originally tendered. If a Note tendered through a valid exercise of any Survivor's Option is not accepted, the Trustee will deliver a notice by first-class mail to the registered holder, at that holder's last known address as indicated in the Note register, that states the reason that Note has not been accepted for repayment. With respect to Notes represented by a Global Note, DTC or its nominee is treated as the holder of the Notes and will be the only entity that can exercise any Survivor's Option for such Notes. To obtain repayment pursuant to exercise of any Survivor's Option for a Note, the deceased beneficial owner's authorized representative must provide the following items to the broker or other entity through which the beneficial interest in the Note is held by the deceased beneficial owner: • a written instruction to such broker or other entity to notify DTC of the authorized representative's desire to obtain repayment pursuant to exercise of such Survivor's Option; • appropriate evidence satisfactory to the Trustee (a) that the deceased was the beneficial owner of the Note at the time of death and his or her interest in the Note was owned by the deceased beneficial owner or his or her estate at least six months prior to the request for repayment, (b) that the death of the beneficial owner has occurred, (c) of the date of death of the beneficial owner, and (d) that the representative has authority to act on behalf of the beneficial owner; • if the interest in the Note is held by a nominee of the deceased beneficial owner, a certificate satisfactory to the Trustee from the nominee attesting to the deceased's beneficial ownership of such Note; • written request for repayment signed by the authorized representative of the deceased beneficial owner with the signature guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States; • if applicable, a properly executed assignment or endorsement; • tax waivers and any other instruments or documents that the Trustee reasonably requires in order to establish the validity of the beneficial ownership of the Note and the claimant's entitlement to payment; and • any additional information the Trustee reasonably requires to evidence satisfaction of any conditions to the exercise of any Survivor's Option or to document beneficial ownership or authority to make the election and to cause the repayment of the Note. In turn, the broker or other entity will deliver each of these items to the Trustee, together with evidence satisfactory to the Trustee from the broker or other entity stating that it represents the deceased beneficial owner. The death of a person owning a Note in joint tenancy or tenancy by the entirety with another or others shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment, together with interest accrued thereon to the repayment date. The death of a person owning a Note by tenancy in common shall be deemed the death of a holder of a Note only with respect to the deceased holder's interest in the Note so held by tenancy in common; except that in the event a Note is held by husband and wife as tenants in common, the death of either shall be deemed the death of the holder of the Note, and the entire principal amount of the Note so held shall be subject to repayment. The death of a person who, during his or her lifetime, was entitled to substantially all of the beneficial interests of ownership of a Note, shall be deemed the death of the holder thereof for purposes of this provision, regardless of the registered holder, if such beneficial interest can be established to the satisfaction of the Trustee and us. Such beneficial interest shall be deemed to exist in typical cases of nominee ownership, ownership under the Uniform Gifts to Minors Act, the Uniform Transfers to Minors Act, community property or other joint ownership arrangements between a husband and wife and trust arrangements where one person has substantially all of the beneficial ownership interest in the Note during his or her lifetime. The Company retains the right to limit the aggregate principal amount of Notes as to which exercises of any Survivor's Option applicable to the Notes will be accepted in any one calendar year as described above. All other questions regarding the eligibility or validity of aentitled.

Appears in 1 contract

Sources: Indenture (Crestar Bank /Va)

Common use of Terms of the Notes Clause in Contracts