FISCAL AGENCY AGREEMENT
among
THE THIRTY-EIGHT HUNDRED FUND, LLC,
THE BANK OF NEW YORK MELLON,
As Fiscal Agent, Principal Paying Agent,
Calculation Agent, Transfer Agent and Registrar,
and
THE BANK OF NEW YORK MELLON,
As a Paying Agent
Dated as of August 12, 2009
Up to U.S.$400,000,000
Floating Rate Notes due 2010
TABLE OF CONTENTS
Page #
Section 1. General 1
Section 2. Appointment of Agents 1
Section 3. Execution and Authentication 2
Section 4. Forms of Notes; Book Entry 3
Section 5. Registration of Transfer; Exchange 4
Section 6. Payments 6
Section 7. Mutilation or Loss of Notes; Record of Replacement
or Cancellation 7
Section 8. Agents 8
Section 9. Maintenance of Agents 10
Section 10. Amendments Without the Consent of Holders 13
Section 11. Amendments With the Consent of Holders 13
Section 12. Certain Taxes 14
Section 13. Notices and Written Instructions 14
Section 14. Governing Law; Jurisdiction 15
Section 15. Counterparts 16
Section 16. Waiver of Jury Trial 17
EXHIBIT A FORM OF TERMS AND CONDITIONS
EXHIBIT B FORM OF GLOBAL NOTE
EXHIBIT C FORM OF DEFINITIVE NOTE
This FISCAL AGENCY AGREEMENT, dated as of August 12, 2009 (this Agreement),
is among The Thirty-Eight Hundred Fund, LLC (the Company), The Bank
of New York Mellon, as fiscal agent, principal paying agent, calculation
agent, registrar and transfer agent (the Fiscal Agent), and The Bank
of New York Mellon, as a paying agent.
Section 1. General.
Pursuant to a Placement Agent Agreement dated as of July 10, 2009
(the Placement Agent Agreement) between the Company and Barclays
Bank PLC, the Company has authorized Barclays Bank PLC to act as
exclusive placement agent for the Company in connection with the
proposed offering, issue and sale privately of up to
U.S.$400,000,000 aggregate principal amount of the Companys Floating
Rate Notes due 2010 (including, where the context so permits, any
beneficial interest therein, the Notes). All Notes shall contain
the Terms and Conditions of the Notes (the Terms) substantially
as set forth in Exhibit A hereto, which Terms are hereby
incorporated herein. If the Terms contradict any provision
of this Agreement, the Terms shall govern.Each Note shall be dated
the date of its authentication. Capitalized terms used, but not
defined herein, shall have the respective meanings ascribed to
such terms in the Terms.
Section 2. Appointment of Agents.
(a) The Company hereby appoints The Bank of New York Mellon,
acting through its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Finance Americas,
as the fiscal agent in respect of the Notes, upon the terms
and subject to the conditions set forth herein and in the Notes,
and The Bank of New York Mellon hereby accepts such appointment.
The Bank of New York Mellon, together with any successor or
successors as such fiscal agent qualified and appointed in
accordance with Section 9 hereof, is herein called the Fiscal Agent.
The Fiscal Agent shall have the powers and authority granted
to and conferred upon it herein and in the Notes, and such further
powers and authority to act on behalf of the Company as the Company
and the Fiscal Agent may hereafter mutually agree in writing.
(b) The Company hereby appoints The Bank of New York Mellon,
acting through its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Finance Americas, as registrar,
upon the terms and subject to the conditions set forth herein
and in the Notes, and The Bank of New York Mellon hereby accepts such
appointment.The Bank of New York Mellon, together with any successor
or successors as such registrar qualified and appointed in accordance
with Section 9 hereof, is herein called the Registrar.
The Registrar shall have the powers and authority granted to and
conferred upon it herein and in the Notes, and such
further powers and authority to act on behalf of the
Company as the Company and the
Registrar may hereafter mutually agree in writing.
(c) The Company hereby appoints The Bank of New York Mellon,
acting through its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Finance Americas, as principal
paying agent and calculation agent, upon the terms and subject to the
conditions set forth herein and in the Notes, and The Bank of New York
Mellon hereby accepts such appointment.The Bank of New York Mellon,
together with any successor or successors as such principal paying agent
or calculation agent qualified and appointed in accordance with Section 9
hereof, is herein called in its respective roles as the
Paying Agent and Calculation Agent. The Paying Agent and Calculation
Agent shall have the powers and authority granted to and conferred
upon it herein and in the Notes, and such further powers and
authority to act on behalf of the Company as the Company and
the Paying Agent and Calculation Agent may hereafter mutually
agree in writing.
(d) The Company hereby initially appoints The Bank of New York
Mellon, acting through its office at 1 Canada Square, 40th floor,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: Corporate Trust Department,
as a paying agent, upon the terms and subject to the conditions herein
and in the Notes, and The Bank of New York Mellon hereby accepts
such appointment. The Company also hereby initially appoints
The Bank of New York Mellon, acting through its office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Global Finance Americas, as transfer agent, upon the terms
and subject to the conditions herein and in the Notes, and
The Bank of New York Mellon hereby accepts such appointment.Each of
such paying agent and transfer agent shall have the powers and
authority granted to and conferred upon it herein and in the Notes,
and such further powers and authority to act on behalf
of the Company as the Company and such paying agent or transfer
agent, as the case may be, may hereafter mutually agree
in writing.
(e) Each of the Paying Agent, the Calculation Agent, the Fiscal
Agent, and the Registrar is sometimes herein referred to severally
as an Agent and, collectively, as the Agents. The transfer agents
and other paying agents appointed from time to time by the Company
as provided herein and in the Notes are referred to respectively as
paying agents and transfer agents.
Section 3. Execution and Authentication.
(a) The Fiscal Agent is authorized, upon receipt of Notes
duly executed on behalf of the Company in accordance with Section
3(b) hereof, to manually authenticate Notes in an aggregate principal
amount at any one time outstanding not in excess of
U.S.$400,000,000 (except as otherwise provided in Section 5
of the Terms), and to deliver such Notes in accordance
with the written order or orders of the Company signed
on its behalf by an Authorized Signatory (as defined in Section
8(i) hereof). The Fiscal Agent shall at
all times act as the sole authenticating agent for the
authentication of Notes hereunder. Until a Note has
been authenticated as provided herein, it shall have no force and effect.
(b) The Notes shall be executed on behalf of the Company
by any director of the Company. The signature of any director
on the Notes may be manual or facsimile. Notes bearing the manual
or facsimile signature of any individual who was at any time
a proper director of the Company shall bind the Company, notwithstanding
that such individual has ceased to be a director prior
to the authentication and delivery of such Notes or was
not a director at the date of such Notes.
(c) Each Note shall be dated the date of its authentication.
Section 4. Forms of Notes; Book Entry.
(a) Regulation S Global Note; Unrestricted Global Note.
The Notes are to be sold in offshore transactions in
reliance on Regulation S (Regulation S) under the United
States Securities Act of 1933, as amended (the Securities Act),
and shall be issued in the form of a permanent global Note
(which may be subdivided) in definitive, fully registered
form without interest coupons, substantially in the form of Exhibit
B hereto, with such legends as may be applicable thereto,
which shall be deposited on behalf of the subscribers for the Notes
represented thereby with the Fiscal Agent, as custodian for The
Bank of New York Depository (Nominees) Limited, or
registered assigns, as the common depositary for Euroclear Bank
S.A./N.V. (Euroclear)
and for Clearstream Banking, societe anonyme (Clearstream)
with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become
such pursuant to the applicable provisions of this Agreement
(the Common Depositary), and which shall be duly
executed by the Company and authenticated by the
Fiscal Agent in the manner set forth in Section 3 hereof, for
credit on the date of issuance of the Notes (the Closing Date)
to such subscribers respective accounts
(or to such other account as they may direct)
at Euroclear and Clearstream.
On or prior to the 40th day after the later of the
commencement of the offering and the Closing Date
(the Restricted Period), beneficial interests in
such global note may be held only by the agent
members of Euroclear and Clearstream. Until such time as
the Restricted Period shall have expired, such global Note
shall be referred to herein as the Regulation S Global Note.
After such time as the Restricted Period shall have expired,
such global Note shall be referred to herein as the
Unrestricted Global Note. After such time as the Restricted
Period shall have expired, beneficial interests in the Unrestricted
Global Note may be held through organizations or persons
other than those that have accounts with Euroclear and Clearstream.
The aggregate principal amount of the Regulation S
Global Note and the Unrestricted Global Note may from time to
time be increased or decreased
by adjustments made on the records of the Fiscal Agent,
as custodian for the Common Depositary as hereinafter provided.
(b) Offshore Book-Entry Provisions.
(i) This Section 4(b)(i) shall apply only to the Regulation S
Global Note or the Unrestricted Global Note (either such note,
including, where the context so permits, a beneficial interest
therein, being a Global Note) deposited on behalf of the
subscribers for the Notes represented thereby with the Fiscal
Agent as custodian for the Common Depositary for
credit to their respective accounts (or to such other accounts
as they may direct) at Euroclear and Clearstream
insofar as interests in such Global Note are held by the
agent members of Euroclear and Clearstream.
Account holders or participants in Euroclear and Clearstream
shall have no rights under this Agreement with
respect to such Global Note, and the Common Depositary may be
treated by the Company, any Agent, and any agent of either
the Company or any Agent as the owner of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, any Agent, or any agent
of either the Company or any Agent from giving
effect to any written certification, proxy or other
authorization furnished by Euroclear or Clearstream or
impair, as between Euroclear, Clearstream and their respective
agent members, the operation of customary practices governing
the exercise of the rights of a holder of any Note.
(ii) Denominations. The Notes shall be issuable in the
denominations set forth in Section 4 of the Terms.
Section 5. Registration of Transfer; Exchange.
(a) Generally.
(i) Subject to such reasonable regulations and procedures
as it may prescribe, the Company will keep books
for the exchange, registration and registration of
transfer of Notes (the Register) at the designated office
of the Registrar, acting as its agent for such purposes.
The Company shall have the right, on
reasonable notice, to inspect the Register or obtain
copies of the Register. Promptly after the issuance
of the Notes and thereafter promptly
after any change thereto, the Registrar will provide
the Company with a copy of the Register.
(ii) The Registrar shall not register the transfer
or exchange of Notes during any period referred
to in Section 5(e) of the Terms.
(iii) Transfer, registration and exchange of any Note
or Notes shall be permitted and executed as
provided in the Terms and this Section 5, and the costs
and expenses will be borne as provided in the Terms,
subject to such reasonable regulations and procedures as the Company,
the Registrar, and the transfer agents may prescribe.
(iv) All Notes surrendered for registration of transfer or
exchange shall be delivered to the Registrar. The Registrar shall
register the cancellation of such Notes in the Register, ▇▇▇▇
such Notes as canceled and return them promptly to the Company.
(v) No Note or any interest therein shall be transferable other
than by operation of law as a result of the death, divorce,
bankruptcy or incompetency of a holder of such Notes.
Any transfer in violation of these provisions shall
be void and of no effect.
(b) Global Notes. Notwithstanding any provision
to the contrary herein, so long as a Global
Note remains outstanding and is held by or on behalf
of Euroclear or Clearstream, transfers of a
Global Note, in whole or in part, shall only be made
in accordance with this Section 5(b).
(i) Transfers of Global Notes in Whole. Subject to clause
(ii) of this Section 5(b), transfers of a Global Note shall
be limited to transfers on behalf of all subscribers of such
Global Note in whole, but not in part, to nominees of Euroclear
and Clearstream or to a successor of Euroclear or
Clearstream or such successors nominee.
(ii) Other Transfers or Exchanges. In the event that a Global
Note is exchanged for certificated Notes in definitive
registered form without interest coupons
pursuant to Section 5(c) hereof, such
Notes may be exchanged or transferred for one another only
in accordance with the other provisions of this Agreement and
with procedures as are substantially consistent with customary
practice for exchanges and transfers of this type (including the
certification requirements intended to ensure that such exchanges
or transfers comply with Regulation S under the Securities Act
and any applicable laws of any state of the United States
of America or any other jurisdiction, as the case may be)
and as may be from time to time adopted by the
Company and the Fiscal Agent.
(c) Definitive Notes.
(i) Conditions for Issuance. Interests in a Global Note
deposited with Euroclear or Clearstream pursuant to
Section 4(b) above shall be transferred to the beneficial
owners thereof in the form of definitive
Notes only if such transfer complies with this Section 5 and
(1) Euroclear or Clearstream notifies the Company that it is
unwilling or unable to continue as depositary for such
Global Note or (2) an Event of Default (as defined in Section
7 of the Terms) has occurred and is continuing with
respect to the Notes.
(ii) Issuance. If interests in any Global Note are to be
transferred to the beneficial owners thereof in the
form of definitive Notes pursuant to this Section 5(c),
such Global Note to be so transferred shall be
surrendered by Euroclear or Clearstream, as the case
may be, to the Registrar without charge, the Registrar shall
register the transfer in the Register and the Fiscal Agent
shall authenticate and deliver, upon such transfer of
interests in such Global Note, an equal aggregate principal
amount of definitive Notes of authorized denominations in
the form attached as Exhibit C hereto. The definitive Notes
transferred pursuant to this Section 5(c) shall be executed,
authenticated and delivered only in the denominations specified
in Section 4 of the Terms and registered in such names as
Euroclear or Clearstream, as the case may be, shall direct in writing.
The Company shall be liable for the costs and expenses
of printing or preparing any definitive Notes. Neither
the Registrar nor any transfer agent shall
register the exchange of interests in a Global Note
for definitive Notes for a period of 15 days preceding
the due date for any payment
of principal or interest on the Note.
(iii) Transfer. Subject to this Section 5, any definitive Note may
be transferred in whole or in part in the amount of any authorized
denomination (as defined in Section 4 of the Terms) by surrendering
at the office of the Registrar or at the office of any other transfer agent
that may be appointed by the Company such Note with the form of
transfer thereon duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and
the Registrar or any such transfer agent, as the case may be,
duly executed by the holder thereof or his attorney-in-fact duly
authorized in writing.
In exchange for any definitive Note properly presented for transfer,
the Registrar shall register such transfer in the Register and the Fiscal
Agent shall promptly authenticate and deliver or cause to be authenticated
and delivered at the office of the Registrar or at the office
of any transfer agent, as the case may be, to the transferee or send by mail
to such address as the transferee may request, at the risk
of such transferee, definitive Notes registered in the name of such transferee,
for the same aggregate principal amount as was transferred.
In the case of the transfer of any definitive Note
in part, the Fiscal Agent shall
also promptly authenticate and deliver or cause
to be authenticated and delivered at the office of the
Registrar or at the office of any transfer agent, as the case may be,
to the transferor or send by mail to such address as the
transferor may request, at the risk of such transferor, definitive
Notes registered in the name
of the transferor, for the aggregate principal amount
that was not transferred.
No transfer of any definitive Note shall be made
unless the request for such transfer is made by the registered
holder or by a duly authorized attorney-in-fact at the office
of the Registrar or at the office of any other transfer agent
that may be appointed by the Company.
(iv) Exchange. At the option of the holder on request confirmed
in writing and subject to applicable laws and regulations
and to the Terms,definitive Notes may be exchanged for Notes of
any authorized denomination (as defined in Section 4
of the Terms) and of equal aggregate principal amount,
upon surrender of the Notes to be exchanged at the office
of the Registrar or at the office of a transfer agent.
Whenever any Note is so surrendered for exchange, together
with a written request for exchange, the Registrar shall
register the transfer in the Register and the Fiscal Agent
shall promptly authenticate and deliver (directly or
through a transfer agent, as the case may be) Notes which
the holder making the exchange is entitled to receive
subject to the Terms.
Section 6. Payments.
(a) In order to provide for the payment of principal and interest
(including Additional Amounts pursuant to, and as defined in,
Section 13 of the Terms) on the Notes as the same shall become due
and payable, the Company hereby agrees to pay to the Fiscal Agent,
by 10:00 a.m. New York time, on each Interest Payment Date
(as defined on the face of the Notes) or the maturity date of the
Notes or any date fixed for redemption of the
Notes (each, a Payment Date),
in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private
debts, an amount in immediately available funds which
(together with any amounts then held by the Fiscal Agent and available
for that purpose) shall be sufficient to pay the entire amount
of principal or interest (including any Additional Amounts) becoming
due on such Payment Date with respect to the Notes. The Company shall
confirm by facsimile on the business day prior to the day payment
is due to be made to the Fiscal Agent that it has issued irrevocable
paying instructions for the transfer of therelevant sum
due to the account of the Fiscal Agent.
The Fiscal Agent shall make amounts received by it available
to the Paying Agent and the Paying Agent shall hold such funds
in trust and apply them to the payment of such principal
and interest (including any Additional Amounts)
on such Payment Date. No paying agent
shall be required to use its own funds in making any payment
on the Notes, except that the Paying Agent or its affiliates
may use their own funds as necessary to facilitate the
funding of timely payment of interest or principal.
If the Fiscal Agent pays any amounts to the holders of the
Notes or to any other Paying Agent (if any) at a time
when it has not received payment in full in respect of the
relevant Securities in accordance with this Section 6
(the excess of the amounts so paid over the amounts so
received being the Shortfall), the Company will,
in addition to paying amounts due under this Section 6,
pay to the Fiscal Agent on demand interest (at a rate which
represents the Fiscal Agents cost of funding the Shortfall)
on the Shortfall (or the unreimbursed portion thereof) until the
receipt in full by the Paying Agent of the
Shortfall. All sums payable to the Fiscal Agent hereunder
shall be paid to such account with such bank as the Fiscal Agent
may from time to time notify the Company not less than three business
days before any such sum is due and payable. Payments to holders
of Notes shall be made by the Paying Agent in accordance
with Section 9 of the Terms. As used in this Agreement,
business day means a day on which banks
are open for business and carrying out transactions
in United States dollars in The City of New York, London
and the city of the designated office of the Paying Agent.
(b) In any case where a Payment Date shall not be a business
day at any place of payment, then the relevant payment need not
be made on such date at such place but may be made on the next
succeeding day which is a business day at such place, with the
same force and effect as if made on the date for such payment,
and no additional interest in respect of such Payment Date shall
accrue for the period from and after such Payment Date.
(c) Any interest not punctually paid or duly provided
for on any Interest Payment Date shall forthwith cease
to be payable to the persons in whose name the Notes are
registered on the Regular
Record Date (as such term is defined in Section 9(a)
of the Terms) immediately preceding such Interest Payment
Date and shall be paid instead
to the persons in whose names the Notes are registered
at the close of business on a subsequent record date for
the payment of such defaulted
interest to be fixed by the Company by notice
to the holders not less than 15 calendar days prior to such
subsequent record date
or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities
exchange on which the Notes are listed
at the time of such payment.
Section 7. Mutilation or Loss of Notes Record
of Replacement or Cancellation.
(a) The Company shall execute and deliver to the
Fiscal Agent Notes in such amounts and at such times as to
enable the Fiscal Agent to fulfill its responsibilities under this
Agreement and the Notes.
(b) The Fiscal Agent is hereby authorized, in accordance
with Section 5 of the Terms, to authenticate and
deliver or cause to be authenticated and delivered from time to
time Notes in exchange for or in lieu of Notes which have become
mutilated or defaced, or destroyed,lost or stolen. Each Note
authenticated and delivered in
exchange for or in lieu of any such Note shall carry
all the rights to interestaccrued and unpaid and to
accrue which were carried by such Note
before such mutilation or defacement, or destruction,
loss or theft.
(c) In the case of a mutilated, defaced, destroyed,
lost or stolen Note, indemnity satisfactory to the Fiscal
Agent and the Company will be required of the owner
of such Note before a replacement Note will be issued.
All expenses (including the reasonable legal fees and
expenses of the Company and the Fiscal Agent) associated
with obtaining such indemnity and in issuing the new Note
shall be borne by the owner of the mutilated, defaced,
destroyed, lost or stolen Note.
(d) In the case of the replacement of any of the Notes,
the Fiscal Agent and the Registrar, in the Register, will
keep a record of the Notes so replaced and the Notes issued
in replacement thereof. In the case of the cancellation of
any of the Notes (including upon repayment), the Fiscal Agent
and the Registrar, in the Register, will keep a record of the
Notes so canceled and the date on which such Notes were canceled.
Section 8. Agents.
Each of the Agents accepts its obligations set forth herein
and in the Notes upon the terms and conditions hereof and
thereof, including the following, to all of which the
Company agrees and to all of which the rights of the holders
from time to time of the Notes shall be subject:
(a) Each of the Agents shall be entitled to the compensation
to be agreed upon with the Company in writing for all services
rendered by it, and the Company agrees promptly to pay such
compensation and to reimburse each of the Agents for reasonable
out-of-pocket expenses (including reasonable legal fees and
expenses) incurred by it in connection with the services rendered
by it hereunder, as and to the extent agreed upon with the Company
provided, however, that all notices,
invoices or other communications in connection with
the compensation of the Agents shall be sent by each
of the Agents to The Bank of New York Mellon,
and all payments of compensation by the Company
to any of such Agents shall be paid to The Bank
of New York Mellon.
The Company also agrees to indemnify each of the Agents
and each other paying agent and transfer agent for,
and to hold them harmless against, any loss, liability,
cost, claim, action, demand or expense (including the
costs and expenses of defending against any claim of liability)
incurred without gross negligence, bad faith,
willful misfeasance or reckless disregard of obligations
or duties on their part arising out of or in connection
with their acting as such Agent or a paying agent or
transfer agent hereunder, as the case may be, or performing any
other duties pursuant to the terms and
conditions hereof. The obligations of the Company under
this subsection (a) shall survive the payment of the Notes
and the resignation or removal of such Agent, paying agent
or transfer agent, as the case may be, and the
termination of this Agreement.
(b) In acting under this Agreement and in connection
with the Notes, each of the Agents and each other
paying agent and transfer agent is acting solely
as agent of the Company and does not assume any
obligation to, or relationship of agency or trust
for or with, any of the owners or holders of the
Notes except that all funds held by such Agent or any
paying agent for the payment of principal of or interest
(and any Additional Amounts) on the Notes shall be held
in trust by such Agent or such paying agent, as the case
may be, and applied as set forth herein and in the Notes
provided that any such moneys remaining unclaimed at the end
of two years after the date on which such principal, interest
or Additional Amounts shall have become
due and payable shall be repaid to the Company
(including all interest accrued, if any, with
respect to any such amounts), as provided
and in the manner set forth in Section 8(f) hereof,
whereupon the aforesaid trust shall terminate and
all liability of such Agent or any other paying agent with
respect to such moneys shall cease.
(c) Each of the Agents and each other paying agent and transfer
agent may consult with counsel of its selection, and any advice
or written opinion of such counsel shall be full and complete
authorization and protection, and no liability shall
be incurred by such Agent in respect of any action taken,
suffered or omitted to be taken by such Agent hereunder
in good faith and in reliance on such advice or opinion.
(d) Each of the Agents and each other paying agent and transfer
agent shall be protected and shall incur no liability for or
in respect of any action taken or omitted to be taken or thing
suffered by it in reliance upon any Note, notice, direction,
consent, certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and
to have been presented or signed by the proper person or parties.
(e) Each of the Agents and each other paying agent and transfer
agent, and each of their officers, directors and employees,
in such persons individual capacity or any other capacity, may
become the owner of, or acquire any interest in, any Notes
or other obligations of the Company with the same rights that
it would have had if it were not such Agent or such other
paying agent or transfer agent or an officer, director
or employee thereof, as the case may be, and
may engage or be interested in any financial or other
transaction with the Company and may act on, or as
depositary, trustee or agent for, any
committee or body of holders of Notes or other obligations
of the Company, as freely as if it were not
such Agent or such other paying agent
or transfer agent or an officer, director or employee
thereof, as the case may be.
(f) All moneys paid by or on behalf of the Company
to the Paying Agent or any other paying agent for
the payment of the principal of or interest on any Note
which remain unclaimed at the end
of two years after such principal or interest shall have
become due and payable will be repaid to the Company
(including all interest accrued, if any, with respect
to any such amounts) upon written request, and the holder of such
Note will thereafter look only to the Company for
payment. Upon such repayment, all liability of the
Paying Agent and any other paying agent with respect
thereto shall cease, without,
however, limiting in any way the obligation
of the Company in respect of the amount so repaid.
(g) The recitals contained herein and in the Notes
(except in the certificate of authentication of a
duly authorized officer or a duly appointed signatory
of the Fiscal Agent) shall be
taken as the statements of the Company, and the Agents
assume no responsibility for the correctness of the same.
None of the Agents makes
any representation as to the validity or a sufficiency
of this Agreement or the Notes. None of the Agents or any
other paying agent
shall be accountable for the use or application
by the Company of the proceeds of any Notes authentcated
and delivered by or on behalf of the Fiscal
Agent in conformity with the provisions of this Agreement.
(h) The Agents and each other paying agent
and transfer agent shall be obligated to perform
such duties and only such duties as are herein and in the
Notes specifically set forth, and
no implied duties or obligations shall be read into
this Agreement or the Notes against the Agents or
any such other paying agent or transfer
agent. None of the Agents shall be under any obligation
to take any action hereunder which may tend
to involve it in any expense or liability.
(i) Except as otherwise specifically provided herein
or in the Notes, any order, certificate, notice,
request, direction or other communication from the Company,
made or given under any
provision of this Agreement, shall be sufficient if
signed by an authorized signatory of the Company
(an Authorized Signatory). From time to time,
the Company will furnish the Agents with a certificate as to
the incumbency and specimen signatures of persons who are
then Authorized
Signatories. Until the Agents receive a subsequent certificate
from the Company, the Agents shall be entitled to rely on the
last such certificate delivered to them for purposes of
determining the Authorized Signatories.
(j) None of the Agents shall have any duty or responsibility in
case of any default by the Company in the performance of its obligations
(including, without limiting the generality of the foregoing, any duty or
responsibility to accelerate all or any of the Notes
or to initiate or to attempt
to initiate any proceedings at law or otherwise or to make any demand for the
payment thereof upon the Company).
(k) The Agents may act and rely and shall be protected in
acting and relying in good faith on the opinion or advice of or
information obtained from any Counsel, accountant, appraiser
or other expert or adviser, whether retained or employed by the
Company or by the Agents, in relation to any matter arising out
of or relating to this Agreement, the Notes or the transactions
contemplated hereby.
(l) Anything in this Agreement to the contrary notwithstanding,
in no event shall the Agents be liable under or in connection with this
Agreement for indirect, special, incidental, punitive or consequential losses
or damages of any kind whatsoever, including but not limited to lost
profits, whether or not foreseeable, even if the Agents have been advised
of the possibility thereof and regardless of the form of action in which
such damages are sought.
(m) In no event shall any of the Agents be responsible
or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or
indirectly, forces beyond its control, including without limitation
strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes
or acts of god, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware)
services it being understood that the Agents shall use
reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section 9. Maintenance of Agents.
(a) The Company agrees that, so long as any of the Notes
is outstanding, or until moneys for the payment of all
principal of and interest (and any Additional Amounts) on all
outstanding Notes shall have been made available at the
offices of the Paying Agent or, as to moneys remaining
unclaimed, shall have been returned to the Company as
provided in Sections 8(b) and 8(f) hereof, whichever occurs
earlier, there shall at all times be a fiscal agent in respect of
the Notes, agents for the payment of the principal of and
interest (and any Additional Amounts) on the Notes and a
registrar for transfer and exchange of Notes in accordance
with Section 9 of the Terms. The Company agrees to keep the
Agents advised of the names and locations of all paying and
transfer agents provided that, until the Company shall otherwise
notify the Agents in writing, such paying and transfer agents
shall consist only of those set forth in Section 9 of the Terms.
The Paying Agent shall arrange with all such paying and transfer
agents for the payment, from funds furnished by the Company,
to the Paying Agent pursuant to this Agreement of the principal
of and interest (and any Additional Amounts) on the Notes and of
the compensation of such paying and transfer agents for
their services as such.
(b) Each of the Agents may at any time resign by
giving written notice of its resignation to the Company
specifying the date on which its resignation shall become
effective, subject to the conditions set forth below provided
that such date shall be at least 30 days after the receipt of
such notice by the Company unless the Company agrees to
accept shorter notice. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor to such Agent
by written instrument in duplicate signed on behalf of the Company,
one copy of which shall be delivered to the resigning Agent and
one copy to the successor Agent. Notwithstanding the date of
effectiveness specified in such written notice of resignation,
each resignation shall become effective only upon the
acceptance of appointment by the successor to such Agent as
provided in Section 9(d) hereof. The Company may, at any
time and for any reason upon at least 30 days written notice
to that effect (provided that no such notice shall expire less than
15 days before or 15 days after any Interest Payment Date and
no such notice shall be required if any Insolvency Event occurs
in respect of an Agent) remove any Agent and appoint a
successor Agent by written instrument in duplicate signed on
behalf of the Company, one copy of which shall be delivered
to the Agent being removed and one copy to the successor Agent.
Notwithstanding the date of effectiveness specified in such
written notice of removal, each removal of an Agent and any
appointment of a successor Agent shall become effective only
upon acceptance of appointment by the successor to such
Agent as provided in Section 9(d) hereof. Upon resignation or
removal, such Agent shall be entitled to the payment by the
Company of its compensation for the services rendered hereunder
and to the reimbursement of all reasonable out-of-pocket expenses
(including reasonable legal fees and expenses) incurred in
connection with the services rendered by it hereunder, as and to
the extent agreed upon with the Company provided, however,
that all notices, invoices or other communications in connection
with the compensation of the Agents shall be sent by each of
the Agents to The Bank of New York Mellon, and all payments
of compensation by the Company to any of such Agents shall
be paid to The Bank of New York Mellon.
(c) In case at any time any of the Agents shall resign,
or shall be removed, or shall become incapable of acting, or an
Insolvency Event occurs in respect of any Agent, a successor to
such Agent shall be appointed by the Company by an instrument
in writing. Upon the appointment as aforesaid of a successor to
such Agent and acceptance by it of such appointment, the Agent
so superseded shall cease to be such Agent hereunder. If, after
90 days, no successor to such Agent shall have been so appointed,
or if so appointed, shall not have accepted appointment as
hereinafter provided, any holder of a Note, on behalf of itself and
all others similarly situated, or such Agent may, at the expense of
the Company, petition any court of competent jurisdiction for the
appointment of a successor to such Agent.
(d) Any successor Fiscal Agent hereunder shall be a bank
or trust company organized and doing business under the laws of the
United States of America or of the State of New York, in good standing
and having and acting through an established place of business in
the Borough of Manhattan, The City of New York, authorized under such
laws to exercise corporate trust powers and having a combined capital
and surplus in excess of U.S.$50,000,000. Any successor Agent
appointed hereunder shall execute and deliver to its predecessor and
to the Company an instrument accepting such appointment hereunder,
and thereupon such successor Agent, without any further act shall
become vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as
such Agent hereunder, and such predecessor, upon payment of its
compensation and reasonable out of pocket expenses then unpaid,
shall pay over to such successor Agent all moneys or other property
at the time held by it hereunder.
(e) Any corporation or bank into which any Agent may be
merged or converted, or with which any Agent may be consolidated,
or any corporation or bank resulting from any merger, conversion or
consolidation to which the Agent shall be a party, or any corporation
or bank to which such Agent shall sell or otherwise transfer all or
substantially all of its assets and business, or any corporation or bank
succeeding to the corporate trust business of such Agent shall be the
successor to such Agent hereunder, without the execution or filing of
any document or any further act on the part of the parties hereto.
(f) At least 10 days prior to the first date of payment on the Notes,
if at such time any payment on such Notes shall be subject to deduction
or withholding for or on account of any tax, assessment or other
governmental charge, and at least 10 days prior to each date, if any, of
payment thereafter if there has been any change with respect to such
matters, the Company will furnish the Fiscal Agent and each other paying
agent with a certificate of an Authorized Signatory of the Company instructing
the Fiscal Agent and each other paying agent whether such payment on
such Notes shall be made without deduction or withholding for or on
account of any tax, assessment or other governmental charge. In the
absence of any such certificate the Fiscal Agent may assume that no
such deduction or withholding shall be required. If any such deduction or
withholding shall be required, then such certificate shall specify, by
country, the amount, if any, required to be withheld on such payment to
holders of such Notes and the Company will (i) withhold or deduct such
payment as required by applicable law and (ii) pay or cause to be paid
to the Fiscal Agent (or, if applicable, directly to a paying agent or agents)
additional amounts, if any, required by the terms of such Notes to be
paid such that the net amounts receivable by the holders of the Notes
after such withholding or reduction shall equal the payment which would
have been receivable in respect of the Notes in the absence of such
withholding or reduction. The Company agrees to indemnify the Fiscal
Agent and each other paying agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without gross
negligence, bad faith, willful misfeasance or reckless disregard of
obligations or duties on their part arising out of or in connection with
actions taken or omitted by them in reliance on any certificate furnished
pursuant to this Section 9(f).
Section 10. Amendments Without the Consent of Holders.
The Company and the Fiscal Agent may, upon agreement between
themselves, without the vote or consent of any holder of Notes,
modify, amend, amend and restate or supplement this Agreement
or the Notes for the purpose of (i) adding to the covenants of the
Company for the benefit of the holders of Notes, (ii) surrendering
any rights or power conferred upon the Company in a manner which
shall not adversely affect the interest of any holder of Notes in any
material respect, (iii) securing the Notes pursuant to the requirements
of the Notes or otherwise, (iv) correcting any defective provision
contained in this Agreement or in the Notes in a manner which shall not
adversely affect the interest of any holder of Notes in any material
respect or (v) otherwise amending this Agreement or the Notes in a
manner which shall not adversely affect the interest of any holder of
Notes in any material respect. The Company will notify each holder of
Notes of any such change in accordance with Section 15 of the Terms
and as soon as reasonably practicable will make any such modified,
amended or supplemented documents available to them for review.
Prior to executing any amendment under this Section 10 or pursuant to
Section 8 of the Terms, the Fiscal Agent, upon request, shall be entitled
to receive, and (subject to Section 8 of this Agreement), shall be fully
protected in relying on an opinion of counsel to the Company stating that
such amendment is permitted under this Agreement. The Fiscal Agent
may, but shall not be obligated to, execute any amendment if such
amendment adversely affects the Fiscal Agents rights, duties or immunities.
Section 11. Amendments With the Consent of Holders.
(a) The Company and the Fiscal Agent may modify, amend
or supplement the terms of the Notes or this Agreement for any purpose
not set out in Section 10 only with the consent of the holders of Notes
as provided in Section 8 of the Terms.
(b) Upon the request of the Company and at the Companys
expense, the Fiscal Agent shall request from Euroclear and Clearstream
a position listing of participants that have an interest in the Regulation
S Global Note or the Unrestricted Global Note (as the case may be).
(c) Outstanding Defined. For purposes of the provisions
hereof and the Notes, any Note authenticated and delivered pursuant
to this Agreement shall, as of any date of determination, be deemed to
be Outstanding, except:
(i) Notes theretofore canceled by the Registrar or delivered
to the Fiscal Agent, any paying agent or any transfer agent for cancellation
or held by the Fiscal Agent for reissuance but not reissued by the
Fiscal Agent or
(ii) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered pursuant hereto provided
that in determining whether the holders of the requisite aggregate
principal amount of Outstanding Notes are present at a meeting of holders
of Notes for quorum purposes or have consented to or voted in favor of
any request, demand, authorization, direction, notice, consent, waiver,
amendment, modification or supplement hereunder, Notes owned by or
on behalf of the Company shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Fiscal Agent shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver, amendment, modification or
supplement, only Notes that a responsible officer of the Fiscal Agent
knows to be so owned shall be so disregarded.
(d) In agreeing to any modification, amendment or supplement to this
Agreement or the Notes, the Fiscal Agent shall be entitled to receive,
and shall be fully protected in relying upon, a certificate of an official
of the Company stating that such amendment is authorized or
permitted by this Agreement.
Section 12. Certain Taxes.
In the event that any stamp, transfer, other documentary or
similar taxes or duties may be imposed by any governmental
authority in connection with the execution or delivery of this
Agreement or the original issuance of the Notes or the
enforcement of any provisions hereof or thereof, the Company
will pay to the appropriate party such amounts as may be
necessary to compensate such party for such taxes or duties.
Notwithstanding the foregoing, nothing contained herein shall
be deemed to require the Company to pay any such taxes
with respect to transfers or exchanges of the Notes.
Section 13. Notices and Written Instructions
All notices hereunder shall be in English and shall be sent by
facsimile transmission (in such case confirmed by prepaid airmail)
or certified or registered mail, postage prepaid, addressed
to the following entities hereto as follows:
Address
Company ................................ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
Fiscal Agent, Paying Agent, The Bank of New York Mellon
Registrar and Transfer ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
Agent...................................... ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Global Finance Americas
Paying Agent.......................... ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ Square, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-44-207-964-2536
Attn: Corporate Trust Department
or at any other address of which any of the foregoing shall have
notified the others in writing. Any such notice shall be effective
on receipt. The Fiscal Agent shall deliver a copy of any notice
received on behalf of the Company in connection with this
Agreement or the Notes (excluding notices given regarding the
transfer or exchange of Notes) to the Company in accordance
with the terms of this Section 13.
The Company may provide written instructions to the Fiscal
Agent via (i) computer facsimile, email, the Internet or other
insecure electronic method (Internet Communication), or (ii)
secure electronic transmission containing applicable authorization
codes, passwords and/or authentication keys (along with Internet
Communications Written Instructions). If the Fiscal Agent
receives Written Instructions which appear on their face to have
been transmitted by a person whose name is contained on a
list of persons authorized to act on behalf of the Company that
is maintained by the Fiscal Agent (Authorized Pesons) the
Company understands and agrees that the Fiscal Agent cannot
determine the identity of the actual sender of such Written
Instructions and that the Fiscal Agent shall conclusively presume
that such Written Instructions have been sent by an Authorized
Person, provided however, that the Fiscal Agent first confirms by
telephonic communication with an Authorized Person that any
Internet Communication has been sent by the Authorized Person
purporting to send the Internet Communication. The Company
shall be responsible for ensuring that only Authorized Persons
transmit such Written Instructions to Fiscal Agent and that all
Authorized Persons treat applicable user and authorization codes,
passwords and/or authentication keys with extreme care.
The Company acknowledges and agrees that it is fully informed
of the protections and risks associated with the various methods
of transmitting Written Instructions to the Fiscal Agent and that
there may be more secure methods of transmitting written
instructions than the method(s) selected by the Company.
Company agrees that the security procedures (if any) to be
followed in connection with its transmission of written instructions
provide to it a commercially reasonable degree of protection
in light of its particular needs and circumstances. If Company
elects (with Fiscal Agents prior consent) to transmit written
instructions through an on-line communications service owned
or operated by a third party, Company agrees that Fiscal Agent
shall not be responsible or liable for the reliability or availability
of any such service.
Section 14. Governing Law Jurisdiction.
(a) This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
(b) To the fullest extent it may effectively do so, the
Company hereby (i) irrevocably submits to the non-exclusive
jurisdiction of any New York State or federal court sitting in The
City of New York, and any appellate court from any thereof, in
any suit, action or proceeding arising out of or relating to this
Agreement (a Related Proceeding) and (ii) irrevocably agrees
that all claims in respect of any Related Proceeding may be heard
and determined in such New York State or federal court.
The Company hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to
the maintenance of any Related Proceeding and any objection
to any Related Proceeding whether on the grounds of venue,
residence or domicile. The Company hereby agrees, to the
fullest extent it may effectively do so, that a final judgment in
any Related Proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or any other manner
provided by law.
(c) The Company hereby appoints Corporation Services
Company (the Process Agent), with an office on the date hereof at
1133 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as its agent to receive on behalf of the Company and its property
service of copies of the summons and complaint and any other
process which may be served in any Related Proceeding in such
New York State or federal court sitting in The City of New York.
The Company hereby agrees that such service may be made by U.S.
registered mail, to the fullest extent permitted by law, or by delivering
by hand a copy of such process to the Company in care of the
Process Agent at the address specified above for the Process
Agent (and the Company hereby agrees that such service will be
effective upon delivery by hand of such process to the office of the
Process Agent or 10 days after mailing, to the fullest extent permitted
by law), and the Company hereby authorizes and directs the Process
Agent to accept on its behalf such service. The Company hereby
agrees that failure of the Process Agent to give notice to the Company,
or failure of the Company to receive notice of such service of process,
shall not affect in any way the validity of such service on the Process
Agent or the Company. The Company hereby irrevocably consents,
to the fullest extent permitted by law, to the service of any and all
process in any Related Proceeding in a New York State or federal
court sitting in The City of New York by sending by U.S. registered
mail copies of such process to the Company at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇.
York (and the Company hereby agrees that such service will be
effective 10 days after the mailing thereof). The Company hereby
covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that
may be necessary to continue the designation of the Process Agent
in full force and effect, and to cause the Process Agent to continue to
act as such. In addition, the Company hereby agrees that none
of its agreements described in this or the preceding paragraph shall
affect the right of any party to serve legal process in any other manner
permitted by law.
Section 15. Counterparts.
This Agreement may be executed in one or more counterparts, each
of which will be deemed to be an original, but all such counterparts
will together constitute one and the same instrument.
Section 16. Waiver of Jury Trial.
Each of the company and the agents hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating
to this agreement, the notes or the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be , duly executed as of the day and year first above written.
THE THIRTY-EIGHT HUNDRED FUND, LLC
By:______________________________________
Name:
Title:
Executed in:
THE BANK OF NEW YORK MELLON, as Fiscal Agent, Principal Paying
Agent, Calculation Agent, Transfer Agent and Registrar
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK MELLON, as a Paying Agent
By:______________________________________
Name:
Title:
Executed in:
EXHIBIT A
FORM OF TERMS AND CONDITIONS
1. General.
(a) This Note is one of a duly authorized issue of Floating Rates
due 2010 (the Notes) of the Company, issued pursuant to a Fiscal
Agency Agreement, dated as of August 12, 2009 (the Fiscal
Agency Agreement), among the Company, The Bank of New York
Mellon, as fiscal agent, principal paying agent, calculation agent,
registrar and transfer agent, and The Bank of New York Mellon,
as a paying agent. Capitalized terms used but not defined herein
shall have the meanings given to them in the Fiscal Agency Agreement.
(b) The holders of the Notes shall be entitled to the benefits of,
be bound by, and be deemed to have notice of, all the provisions
of the Fiscal Agency Agreement. Copies of the Fiscal Agency
Agreement are on file and may be inspected at the corporate
trust office of the Fiscal Agent in The City of New York and at
the offices of the paying agents appointed from time to time
pursuant to the Fiscal Agency Agreement. If the terms of the Fiscal
Agency Agreement contradict the terms of the Notes, the terms of the
Notes shall govern.
2. Principal, Interest and Maturity.
(a) The Notes shall be limited to the aggregate principal amount
of U.S. $400,000,000 (except as otherwise provided under
Section 5 below).
(b) In the event any Interest Payment Date is not a Business
Day, the Interest Payment Date shall be postponed to the
following Business Day. However, if the postponement would
cause the day to fall in the next calendar month, the Interest
Payment Date will instead be brought forward to the immediately
preceding Business Day. The amount of interest payable on
the Notes shall be computed on the basis of a 360-day year and
the actual number of days elapsed. A Business Day shall mean
any day other than a Saturday or Sunday or other day on which
banking institutions in the city of New York are authorized or
required by law or executive order to remain closed, or a day on
which dealings in deposits in U.S. dollars are not transacted in
the London interbank market.
(c) The interest rate applicable during each quarterly Interest Period
shall be equal to the U.S. dollar three-month LIBOR on the LIBOR
Determination Date for such Interest Period plus 2.00% per annum.
Interest Period means any period from (and including) an Interest
Payment Date (or, in the case of the initial Interest Period, the date
of issuance of the Notes) to (but excluding) the next succeeding
Interest Payment Date (or if earlier, the Maturity Date). LIBOR
means, with respect to any Interest Period, the rate (expressed as
a percentage per annum) for deposits in U.S. dollars having the
relevant maturity commencing on the first day of that Interest Period
that appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m.
(London time) on the LIBOR Determination Date for that Interest
Period. If such rate does not appear on the Reuters Screen LIBOR01
Page, LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars for the relevant maturity commencing on
the first day of that Interest Period and in an aggregate principal
amount of not less than $1,000,000 are offered to prime banks in
the London interbank market by four major banks in the London
interbank market selected by the Calculation Agent (after consultation
with the Company), at approximately 11:00 a.m., London time on
the LIBOR Determination Date for that Interest Period. The Calculation
Agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations
are provided, LIBOR with respect to that Interest Period will be the
arithmetic mean (rounded upward if necessary to the nearest whole
multiple of 0.00001%) of such quotations. If fewer than two
quotations are provided, LIBOR with respect to that Interest Period
will be the arithmetic mean (rounded upward if necessary to the
nearest whole multiple of 0.00001%) of the rates quoted by three
major banks in New York City selected by the Calculation Agent
(after consultation with the Company), at approximately 11:00 a.m.,
New York City time, on the first day of that Interest Period for
loans in U.S. dollars to leading European banks for the relevant
maturity commencing on the first day of that Interest Period and
in an aggregate principal amount of not less than $1,000,000.
However, if fewer than three banks selected by the Calculation
Agent to provide quotations are quoting as described above,
LIBOR for that Interest Period will be the same as LIBOR as
determined for the previous Interest Period. The establishment
of LIBOR for each Interest Period by the Calculation Agent shall
(in the absence of manifest error) be final and binding. For the
purposes of this definition, Calculation Agent means The Bank
of New York Mellon, acting as calculation agent LIBOR Determination
Date means the second London Business Day immediately
preceding the first day of the relevant Interest Period a London
Business day is any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market Reuters
Screen LIBOR01 Page means the display designated on the Reuters
Screen LIBOR01 Page (or such other page as may replace the
Reuters Screen LIBOR01 Page on the service or such other service
as may be nominated by the British Bankers Association for the
purpose of displaying London interbank offered rates for U.S. Dollar deposits).
(d) The Notes will mature and will be repaid at 100% of their principal
amount (unless previously redeemed) plus accrued and unpaid
interest through the date thereof, on August 12, 2010 (the Maturity Date).
3. Status of the Notes.
The Notes shall constitute general, direct, unconditional and
unsecured indebtedness of the Company and shall rank pari
passu without any preference among themselves, with all other
present and future unsecured and unsubordinated obligations
of the Company.
4. Form, Denomination and Title.
The Notes are issuable in fully registered form, without coupons,
in denominations of U.S.$100,000 or any integral multiple of
U.S.$100,000 in excess thereof (an authorized denomination).
The Notes, and transfer thereof, shall be registered as
provided in Section 5 below and in the Fiscal Agency Agreement.
A person in whose name a Note shall be registered in the Register
may (to the fullest extent permitted by law) be treated at all times,
by all persons and for all purposes as the absolute owner of such
Note regardless of any notice of ownership, theft or loss or of any
writing thereon.
5. Replacement, Exchange and Transfer.
(a) If any Note shall become mutilated or defaced or be destroyed,
lost or stolen, the Fiscal Agent shall authenticate and deliver a new
Note on such terms as the Company and the Fiscal Agent may require,
in exchange and substitution for the mutilated or defaced Note or,
in lieu of and in substitution for the destroyed, lost or stolen Note.
In every case of mutilation, defacement, destruction, loss or theft, the
applicant for a substitute Note shall furnish the Company and the
Fiscal Agent with such indemnity as the Company and the Fiscal Agent
may require and evidence to their satisfaction of the destruction, loss
or theft of such Note and of the ownership thereof. In every case of
mutilation or defacement of a Note, the holder shall surrender to the
Fiscal Agent the Note so mutilated or defaced. In addition, prior to the
issuance of any substitute Note, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Fiscal Agent) connected therewith. If any
Note, which has matured or been redeemed, or which will mature within
15 calendar days or for which notice of redemption has been given,
shall become mutilated or defaced or be apparently destroyed, lost
or stolen, the Company may pay or authorize payment of the same
without issuing a substitute Note.
(b) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement and subject to Section 5(e) below, a
Note or Notes may be exchanged for a Note or Notes of equal
aggregate principal amount in the same or different authorized
denominations as may be requested by the holder by surrender
of such Note or Notes at the office of the Registrar, or at the office
of any transfer agent, together with a written request for the exchange.
(c) No Note or any interest therein shall be transferable other than
by operation of law as a result of the death, divorce, bankruptcy
or incompetency of a holder of such Notes and any transfer in
violation of these provisions shall be void and of no effect.
Subject to the foregoing sentence and Section 5(e) below, upon
the terms and subject to the conditions set forth in the Fiscal Agency
Agreement, a Note may be transferred in whole or in part in an
authorized denomination by the surrender of the Note for registration
of transfer at the office of the Registrar or at the office of any
transfer agent, duly endorsed by, or accompanied by a written
instrument of transfer in lieu of endorsement in form satisfactory
to the Company and the Registrar or such transfer agent, as the
case may be, duly executed by the holder or holders thereof or its
attorney-in-fact or attorneys-in-fact duly authorized in writing.
(d) The costs and expenses of effecting any exchange or registration
of transfer pursuant to the foregoing provisions, except for the
expenses of delivery by other than regular mail (if any) and except,
if the Company shall so require, the payment of a sum sufficient
to cover any tax or other governmental charge or insurance charges
that may be imposed in relation thereto, will be borne by the Company.
(e) Any transfer or exchange shall be registered by the Registrar
in the Register. Notwithstanding the foregoing, the Registrar or the
Fiscal Agent, as the case may be, shall not register the transfer
or exchange of Notes for a period of 15 calendar days preceding
the due date for any payment of principal of or interest on the Notes.
6. Certain Covenants of the Company.
So long as any Note remains outstanding, the Company agrees as follows:
(a) To elect to be treated, and to maintain its status, as a regulated
investment company for US federal income tax purposes;
(b) To maintain its registration with the U.S. Securities and Exchange
Commission (the Commission) as a closed-end management
investment company (as defined under the Investment Company
Act of 1940, as amended (the Investment Company Act)) and to
observe its obligations and duties as a registered investment
company under the Investment Company Act
(c) To comply with Applicable Law
(d) To not voluntarily incur any indebtedness or liabilities other than
the following (the indebtedness and liabilities described in clauses
(i) through (v), collectively, the Permitted Liabilities):
(i) indebtedness and liabilities pursuant to the Notes or the related
Fiscal Agency Agreement
(ii) indebtedness and liabilities pursuant to any investment advisory
agreement, administration agreement, custodial agreement, transfer
agent agreement, placement agent agreement or otherwise incurred
in connection with the conduct of the Companys business, including
the management of assets in accordance with the Portfolio Guidelines
(iii) indebtedness and liabilities for expenses of formation and all
other expenses and obligations incident to the operation or
management of the Company
(iv) indebtedness and liabilities in respect of Company Taxes of the
Company not yet due and payable or Company Taxes of the
Company due and payable that the Company is contesting in good faith and
(v) indebtedness and liabilities in respect of borrowed money provided
that at no time will the outstanding principal amount of indebtedness
or liabilities of the Company in respect of borrowed money (including
in respect of the Notes) exceed 20% of the Net Asset Value at such
time (it being understood for purposes of this covenant that customary
settlement obligations in respect of financial transactions shall not
be considered indebtedness or liabilities in respect of borrowed money).
(e) To do all things necessary to preserve and keep in full force and
effect its existence, rights and franchises, including, at all times:
(i) having a board of directors
(ii) filing its own Company Tax returns and paying any Company
Taxes so required to be paid under Applicable Law
(iii) observing Delaware limited liability company formalities
(iv) maintaining adequate capital in light of its contemplated business
purpose, transactions and liabilities
and
(v) causing its officers, agents and other representatives to act at all
times with respect to the Company consistently and in furtherance of
the foregoing and in the best interests of the Company
(f) To not amend the Portfolio Guidelines without the consent of the
persons entitled to vote a majority in aggregate principal amount of
the Notes then Outstanding
(g) To make no investments other than investments permitted under the
Portfolio Guidelines
(h) To make all necessary filings with and submissions to the Commission
and as otherwise required by Applicable Law
(i) To not create, assume, suffer to exist, or take any action which would
result in the creation of any Lien on any of the Companys assets
other than Liens for Company Taxes not yet due or payable or being
contested in good faith and Liens customarily created or arising in
connection with transactions permitted under the Portfolio Guidelines
(j) To maintain a Net Asset Value at any time of not less than four
billion dollars (U.S.$4,000,000,000) and
(k) To notify each registered holder of Notes, Barclays Wealth and
Barclays Capital (both being divisions of Barclays Bank PLC) of any
Event of Default.
For purposes of these Terms:
Affiliate means, with respect to any Person, any other Person
that controls, is controlled by, or is under common control with,
such Person, and any officer, director, general partner, member
or trustee of, or any Person serving in a similar capacity with
respect to, such Person. For purposes of this definition and Section
7(d), control means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities,
through the right or power to appoint a majority of the board of
directors of such Person, by contract or otherwise, and controlled
by and under common control have corresponding meanings.
For the avoidance of doubt, an entity that is a disregarded entity
for US federal income tax purposes shall be treated as an
Affiliate of the Person that is treated as the owner of such entity
for US federal income tax purposes and of all such Persons other
Affiliates.
Applicable Law means any law, rule, regulation or official code,
consent decree, constitution, decree, directive, enactment, guideline,
injunction, interpretation, judgment, order, ordinance, policy statement,
proclamation, promulgation, requirement, rule of law, settlement
agreement, statute or writ of any governmental authority, whether
domestic or foreign, to which the Person in question is subject or
by which it or any of its property is bound.
Company Taxes means all US federal, state or local taxes and all
non-US taxes and other assessments of a similar nature, in each
case, imposed upon or assessed against the Company, including
income, profits, gains, gross receipts, windfall profits, value added,
severance, property, production, sales, use, duty, stamp duty,
license, excise, franchise, employment, withholding or similar taxes,
together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties and
Company Tax, when used as a noun, means any one or more Company
Taxes and, when used as an adjective, means of or pertaining to
Company Taxes.
Lien means any mortgage, lien, encumbrance, security interest,
covenant, condition, restriction (including restrictions on voting
rights or rights of disposition), claim, charge, option, right of first
refusal, right of use and any other matter affecting title (including
any assignment or conditional assignment or any charge upon
property purchased under conditional sales or other
title retention agreements).
Net Asset Value means, at any time, an amount equal to the
gross assets minus the aggregate amount of liabilities calculated
in accordance with generally accepted accounting principles in the
United States.
Portfolio Guidelines means the Investment Objective and Policies
of the Company as described in Item 8.2 (excluding the section
captioned Fundamental Investment Restrictions) and Item 17 of
the Companys Registration Statement on Form N-2 filed on
May 30, 2008 with the Commission as such Registration Statement
may be amended from time to time or as described in the
Companys annual or semi-annual reports to shareholders of the
Company subsequent to that date provided that any amendment
to the Portfolio Guidelines shall be subject to the consent of the
persons entitled to vote a majority in aggregate principal amount
of the Notes then Outstanding pursuant to clause (f) of this Section 6.
7. Events of Default.
If any of the following events (each, an Event of Default)
shall have occurred and be continuing:
(a) Default in any payment of principal on any of the Notes
and the continuance of such default for a period of 7 calendar days
(b) Default in any payment of interest on any of the Notes and the
continuance of such default for a period of 14 calendar days
(c) Default in the performance of any other material obligation
under the Notes and the continuance of such default for a period
of 30 calendar days after an officer of the Company becomes
aware, or in the exercise of reasonable diligence would have
become aware, of the default
(d) an Insolvency Event with respect to the Company or any
company directly or indirectly controlling the Company or
(e) any step is taken by the Company with a view to a moratorium
or suspension of payments in relation to the Notes
then in any such event the holders of at least 25% in aggregate
principal amount of the Notes then Outstanding (as defined in Section
11(c) of the Fiscal Agency Agreement), so long as such Event of
Default is continuing, may by written demand given to the Company
(with a copy to the Fiscal Agent) declare the principal of and any accrued
interest on all Notes then Outstanding to be, and such principal
and any interest shall thereupon become, immediately due and payable,
unless prior to receipt of such demand by the Company all such
defaults shall have been cured provided, however, that upon the
occurrence of an Event of Default of the type described in clause
(d) above relating to the Company, the principal of and any accrued
interest on the Notes shall become immediately due and payable,
without such declaration or notice to the Company. If any Event of
Default described in clauses (a) through (c) or (e) above shall give
rise to a declaration which shall be effective, such Event of Default
shall cease to continue following such declaration and no other
Event of Default shall then be continuing, then such declaration may
be rescinded and annulled by the affirmative vote of the holders
of the Notes in accordance with the procedures set forth in Section 8 below.
For purposes of these Terms:
Insolvency Event means, with respect to any Person, that such
Person (a) is dissolved (other than pursuant to a solvent consolidation,
amalgamation, restructuring, reorganization or merger) (b) becomes
insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due (c) makes a
general assignment, arrangement or composition with or for the
benefit of its creditors (d) (i) institutes or has instituted against it, by
a regulator, supervisor or any similar official with primary insolvency,
rehabilitative or regulatory jurisdiction over it in the jurisdiction of its
incorporation or organization or the jurisdiction of its head or home
office, a proceeding seeking a judgment of insolvency or bankruptcy
or any other relief under any bankruptcy or insolvency law or other
similar law affecting creditors rights, or a petition is presented for its
winding-up or liquidation by it or such regulator, supervisor or similar
official or (ii) has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting creditors
rights, or a petition is presented for its winding-up or liquidation, and
such proceeding or petition is instituted or presented by a person or
entity not described in clause (i) above and either (A) results in a
judgment of insolvency or bankruptcy or the entry of an order for relief
or the making of an order for its winding-up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case within 30
calendar days of the institution or presentation thereof (e) has a
resolution passed for its winding-up, official management or liquidation
(other than pursuant to a solvent consolidation, amalgamation,
restructuring, reorganization or merger) (f) seeks or becomes subject to
the appointment of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or
substantially all its assets (g) has a secured party take possession
of all or substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 calendar days
thereafter (h) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an analogous effect to
any of the events specified in subsections (a) through (g) of this definition
(inclusive) other than, for the avoidance of doubt, any such event that
occurs pursuant to a solvent consolidation, amalgamation, restructuring,
reorganization or merger or (i) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
foregoing acts and
Person means any individual, trustee, receiver, conservator, custodian,
corporation, limited liability company, partnership (whether general
or limited), association, company, joint-stock company, trust, business
trust, estate, joint venture, governmental authority, or any other
entity, in its own or any representative capacity.
8. Modifications, Amendments and Waivers.
(a) A meeting of holders of Notes may be called at any time
and from time to time to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by the Fiscal Agency Agreement or the
Notes to be made, given or taken by holders of Notes or to
modify, amend or supplement the terms of the Notes or the
Fiscal Agency Agreement as hereinafter provided. The Company
may at any time call a meeting of holders of Notes for any such
purpose to be held at such time and at such place as the
Company shall determine. Notice of every such meeting, setting
forth the time and the place of such meeting and in reasonable
detail the action proposed to be taken at such meeting, shall be
given as provided in Section 15 below, not less than 30 nor more
than 60 calendar days prior to the date fixed for the meeting.
In case, at any time, the Company or the holders of at least 10%
in aggregate principal amount of the Outstanding (as defined in
Section 11(c) of the Fiscal Agency Agreement) Notes shall, after
the occurrence and during the continuance of any Event of Default
or any event that with notice or lapse of time or both could constitute
an Event of Default under the Notes, have requested the Fiscal
Agent to call a meeting of the holders of Notes for any such purpose,
by written request setting forth the time and place of, and in
reasonable detail the action proposed to be taken at, the meeting,
the Fiscal Agent shall call such meeting for such purposes by
giving notice, as provided in Section 15 below, of such time and
place of, and in reasonable detail the action proposed to be taken
at, such meeting. Holders of Notes may attend such meeting in
person or by telephone.
(b) To be entitled to vote at any meeting of holders of Notes, a
person shall be a holder of Outstanding Notes or a person
duly appointed by an instrument in writing as proxy for such holder.
The persons entitled to vote a majority in aggregate principal
amount of the Outstanding Notes shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request
of the holders, be dissolved. In any other case, the meeting may
be adjourned for a period of not less than 10 calendar days as
determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 calendar days as determined by the
chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall
be given in the same manner as provided in Section 8(a) above.
Notice of the reconvening of any adjourned meeting shall state
expressly that, at the reconvening of any meeting adjourned for
lack of a quorum, the persons entitled to vote 25% in aggregate
principal amount of the Outstanding Notes shall constitute a quorum
for the taking of any action set forth in the notice of the original
meeting. Any meeting of holders of Notes at which a quorum is
present may be adjourned from time to time by a vote of a
majority in aggregate principal amount of the Outstanding Notes
represented at the meeting, and the meeting may be held as so
adjourned without further notice. At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as
aforesaid, any resolution and all matters shall be effectively
passed or decided by the persons entitled to vote not less than a
majority in aggregate principal amount of the Outstanding Notes
represented and voting.
(c) With (i) the affirmative vote, in person or by proxy thereunto
duly authorized in writing, of the holders of not less than a
majority in aggregate principal amount of the Outstanding Notes
represented at a meeting duly called and held as specified above,
or (ii) the written consent of the holders of a majority in aggregate
principal amount of the Outstanding Notes, the holders may
rescind the declaration of an Event of Default in accordance with
Section 7 or the Company and the Fiscal Agent may, upon agreement
between themselves, modify, amend or supplement the terms
of the Notes or, insofar as affects the Notes, the Fiscal Agency
Agreement, in any way, and such holders may make, take or give
any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Fiscal Agency Agreement or
the Notes to be made, given or taken by holders of the Notes
provided, however, that no such action may, without the consent
or affirmative vote of the holder of each Note affected thereby: (A)
change the due date for the payment of the principal of, or any
installment of interest on, any Note, (B) reduce the aggregate principal
amount of any Note, or the portion of such aggregate principal
amount which is payable upon acceleration of the maturity of such
Note, or the interest rate thereon, (C) change the currency in which
any payment in respect of any Note is payable, (D) change the
manner in which the amount of interest is calculated on any Note,
(E) reduce the proportion of the aggregate principal amount of the
Notes the vote or consent of the holders of which is necessary to
modify, amend or supplement the Fiscal Agency Agreement or the
terms and conditions of the Notes or to make, take or give any
request, demand, authorization, direction, notice, consent, waiver
or other action provided hereby or thereby to be made, taken or
given, or (F) change the obligation of the Company to pay Additional
Amounts (as defined in Section 13 hereof). Any such modification,
amendment or supplement shall be binding on the holders of Notes.
(d) The appointment of any proxy shall be proved by having
the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker, trust company or recognized
security dealer reasonably satisfactory to the Company.
The holding of a Note shall be proved by the Register maintained
by the Agents in accordance with the Fiscal Agency Agreement
or by a certificate or certificates of the Registrar.
(e) The Company shall appoint a temporary chairman of the meeting.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of persons entitled to vote a majority in
aggregate principal amount of the Outstanding Notes represented
at the meeting. At any meeting, each holder of Notes or proxy
shall be entitled to one vote for each U.S.$100,000 aggregate
principal amount of the Notes as to which it is a holder or proxy
provided that no vote shall be cast or counted at any meeting
in respect of any Note challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote except
as a holder of Outstanding Notes or proxy.
(f) The vote upon any resolution submitted to any meeting of
holders of Notes shall be by written ballot on which shall be
subscribed the signatures of the holders or proxies and on which
shall be inscribed an identifying number or numbers or to which
shall be attached a list of identifying numbers of the Notes
entitled to be voted by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all
votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting.
A record in triplicate of the proceedings of each meeting of holders
shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was published
and mailed as provided above. The record shall be signed and verified
by the permanent chairman and secretary of the meeting and one shall
be delivered to each of the Company and the Fiscal Agent, the latter
to have attached thereto the ballots voted at the meeting and to be
preserved by the Fiscal Agent. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
(g) Notwithstanding the foregoing, the Company and the Fiscal
Agent may, upon agreement between themselves, without the vote
or consent of any holder of Notes, modify, amend or supplement
the Fiscal Agency Agreement or the Notes for the purpose of (i)
adding to the covenants of the Company for the benefit of the
holders of Notes, (ii) surrendering any rights or power conferred
upon the Company in a manner which shall not adversely affect
the interest of any holder of Notes in any material respect, (iii)
securing the Notes pursuant to the requirements of the Notes or
otherwise, (iv) correcting any defective provision contained in
the Fiscal Agency Agreement or in the Notes in a manner which
shall not adversely affect the interest of any holder of Notes in
any material respect or (v) otherwise amending the Fiscal
Agency Agreement or the Notes in a manner which shall not
adversely affect the interest of any holder of Notes in any material
respect. The Fiscal Agent will notify each holder of Notes of any
such change and as soon as reasonably practicable will make
any such modified, amended or supplemented documents available
to them for review.
9. Payments and Agents.
(a) The principal of the Notes and interest due thereon at maturity
will be payable in immediately available funds against surrender
of such Notes at the office of the Paying Agent in The City of New
York or, subject to applicable laws and regulations and unless an
application is made as described below, at the office of any paying
agent by United States dollar check drawn on, or by transfer to a
United States dollar account maintained by the holder with, a bank
located in The City of New York. Unless an application is made as
described below, payment of interest on a Note will be made to the
person in whose name such Note is registered at the close of business
on the Regular Record Date (as defined below) immediately preceding
the related Interest Payment Date (as defined on the face of the Notes).
Regular Record Date means, with respect to any Interest Payment Date,
the fifteenth day prior to such Interest Payment Date (whether or not a
Business Day). Upon application of any holder to a paying agent not
later than the relevant Regular Record Date, payment of such principal
of or interest on any Note will be made by wire transfer to a United States
dollar account maintained by such holder.
(b) All moneys paid by or on behalf of the Company to the Paying Agent
or any other paying agent for the payments of the principal of or
interest on any Note which remain unclaimed at the end of two years
after such principal or interest shall have become due and payable
will be repaid to the Company (including all interest accrued, if any,
with respect to any such amounts) upon written request, and the holder
of such Note will thereafter look only to the Company for payment.
Upon such repayment, all liability of the Paying Agent and any other
paying agent with respect thereto shall cease, without, however,
limiting in any way the obligation of the Company in respect of the
amount so repaid, subject to the provisions of Section 14 below.
(c) The Company agrees that so long as any Note remains outstanding,
it will maintain a paying agent in London for payments on Notes and a
paying agent and registrar having a specified office in The City of New
York. The Company initially appoints, subject to the terms and conditions
in the Fiscal Agency Agreement, The Bank of New York Mellon, as
registrar, principal paying agent and transfer agent for the Notes and
The Bank of New York Mellon, as a paying agent for the Notes. Subject
to the foregoing, the Company shall have the right at any time to
terminate any such appointment and to appoint any other agents
in such other places as it may deem appropriate upon notice in
accordance with Section 15 below and in accordance with the terms
and conditions set forth in the Fiscal Agency Agreement.
(d) Payments in respect of the Notes shall be made in such currency
of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
(e) In acting under the Fiscal Agency Agreement and in connection
with the Notes, each of the Agents and each other paying agent
and transfer agent is acting solely as agent of the Company and
does not assume any obligation toward or relationship of agency
or trust for or with the owner or holder of any Note, except that any
funds held by any such agent for payment of principal of or interest
on the Notes shall be held in trust by it and applied as set forth
herein and in the Fiscal Agency Agreement. The obligations of
each of the Agents to the owners or holders of Notes are subject
to the immunities and rights as set forth in the Fiscal Agency Agreement.
10. Optional Redemption, Purchase and Cancellation.
The Company may, at its option and subject to the terms and
conditions of the Fiscal Agency Agreement, redeem the Notes in
whole but not in part at any time upon 30 calendar days advance
written notice to the holders thereof at a price equal to the sum of
(i) 100% of the aggregate principal amount of the Notes, (ii) accrued
and unpaid interest thereon through the date of redemption and
(iii) if the date of redemption is not an Interest Payment Date, the
Intra-Period Broken Funding Amount. The Company or any of its
Affiliates may at any time purchase the Notes at any price in the
open market, if any, or otherwise. The Notes so purchased by the
Company may, at the Companys discretion, be held, resold or
surrendered to the Fiscal Agent for cancellation. The Intra-Period
Broken Funding Amount shall mean with respect to any redemption
an amount (which, for the avoidance of doubt, may be a positive or
negative number) equal to the product of (A) the aggregate
principal amount to be redeemed and (B) X minus Y where:
X equals the fraction (1 + OL x n1) (1 + NL x n2)
Y equals 1 + OL x (n1 n2)
n1 equals the number of days in the current Interest Period
divided by 360
n2 equals the number of days remaining in the current Interest Period
as of the date of redemption divided by 360
OL equals LIBOR as in effect for the current Interest Period and
NL equals LIBOR for the period from (and including) the date of
prepayment to (but excluding) the next Interest Payment Date
(or if earlier, the Maturity Date).
11. Partial Ratable Redemption.
If the Company does not have the funds legally available for the
redemption of, or is otherwise unable to redeem all the Notes to
be redeemed on any redemption date, the Company will redeem
on such redemption date that number of Notes for which it has
legally available funds ratably on the basis of the redemption price
set out in Section 10. The remainder of the Notes will be redeemed
on the earliest practicable date on which the Company will have
funds legally available for the redemption of, or is otherwise able
to redeem, such Notes upon written notice of redemption.
If fewer than all Notes held by any holder are to be redeemed, the
notice of redemption mailed to such holder will specify the number
of Notes to be redeemed from such holder, which may be expressed
as a percentage of Notes held on the applicable record date.
12. Asset Coverage.
Immediately after the issuance of the Notes, or any other class
of senior security representing an indebtedness, or any other
indebtedness or liability in respect of borrowed money, the
Company must have an asset coverage (as defined in Section
18(h) of the Investment Company Act, an Asset Coverage) of at
least 300% with respect to all outstanding indebtedness. To the
extent that the Company does not have such an Asset Coverage
at the time of the declaration of any dividend or distribution upon
any class of capital stock of the Company (after deducting the amount
of such dividend or distribution), or at the time of purchase of any
such capital stock, the Company shall not declare any dividend
(except a dividend payable in capital stock of the Company), or
declare any other distribution, upon any class of capital stock of
the Company or purchase any such capital stock. If, on the last
Business Day of each of twelve consecutive calendar months, the
Company does not have an Asset Coverage of at least 100% with
respect to all outstanding indebtedness, the holders of the Notes,
voting as a class, shall be entitled to elect at least a majority of
the members of the board of directors of the Company. Such
voting right shall continue until the Asset Coverage with respect
to all outstanding indebtedness is at least 110% or more on the last
Business Day of each of three consecutive calendar months.
13. Additional Amounts.
(a) All payments by the Company in respect of the Notes shall
be made free and clear of, and without deduction or withholding
for or on account of any present or future taxes, duties, assessments,
or other governmental charges of whatever nature imposed or
levied by the authorities of any jurisdiction (Withholding Taxes),
unless the Company is compelled by law to deduct or withhold
such taxes, duties, assessments, or governmental charges. In such
event, the Company shall make such deduction or withholding,
make payment of the amount so deducted or withheld to the appropriate
governmental authority and forthwith pay such additional amounts
(Additional Amounts) as may be necessary to ensure that the net
amounts receivable by the holders of the Notes after such deduction
or withholding shall equal the payment which would have been
receivable in respect of the Notes in the absence of such deduction
or withholding. The Company shall cause to be delivered, or, in the
case of notes held by an institution that is holding the Notes on
behalf of a beneficial owner, to use its best efforts to cause the institution
to deliver, to the Paying Agent all forms necessary to ensure that a
minimal rate of withholding applies to all payments by the Company
in respect of the Notes to the holders or beneficial holders of the Notes,
such as an IRS Form W-8IMY and any attached IRS Form W-8BEN,
or a statement of withholding or allocation, as necessary.
Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) if such Withholding Taxes would not have been imposed but
for (A) a present or former connection between the jurisdiction
imposing the tax or any political subdivision or taxing authority
thereof or therein and the holder or beneficial holder of the relevant
Note including, without limitation, a connection arising from such
holder or beneficial holder having been a citizen, domiciliary, or
resident of such jurisdiction or such political subdivision or taxing
authority, being organized in such jurisdiction or such political
subdivision or taxing authority, or having had a permanent
establishment, branch or other fixed place of business therein
(but excluding a connection arising solely from such holder or
beneficial holder having executed, delivered, performed its
obligations or received payment under the Fiscal Agency Agreement
or this Note), or (B) the failure of the holder or beneficial holder
of the relevant Note to comply with any reasonable certification,
identification or other reporting requirement (or such certifications,
identifications or reporting proving to be false or incorrect) concerning
the nationality, residence, identity or connection with such jurisdiction,
or any political subdivision or taxing authority thereof or therein, of
such holder or beneficial holder, if compliance is required by such
jurisdiction, or any political subdivision or taxing authority thereof or
therein, as a precondition to exemption from such deduction or withholding or
(ii) in respect of any Withholding Taxes imposed by any jurisdiction,
if such Withholding Taxes were imposed by reason of the failure
of the holder or beneficial holder to present such holders Note for
payment (where such presentation is required) within 30 calendar
days after the date on which such payment thereof became due
and payable or is duly provided for and notice thereof is given to
the holder, whichever occurs later.
(b) Whenever there is mentioned, in any context, the payment
of the principal of or interest on, or any amounts in respect of,
a Note, such mention shall be deemed to include mention of
the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in
respect thereof, and express mention of the payment of
Additional Amounts (if applicable) shall not be construed as
excluding Additional Amounts where such express mention is
not made.
(c) Notwithstanding Section 13(a)(i) and (ii) above, Additional
Amounts shall be payable in the event Withholding Taxes
are imposed by any jurisdiction (other than the United States
or any political subdivision or taxing authority thereof) if
such Withholding Taxes would not have been imposed in
the absence of any connection between the Company or the
Paying Agent and such jurisdiction.
14. Prescription.
All claims against the Company for payment of principal of
or interest (including Additional Amounts) on or in respect
of the Notes shall be prescribed unless made within five
years from the date on which the relevant payment first
became due.
15. Notices.
Notices will be mailed to holders of Notes at their registered
addresses in the Register and shall be deemed to have been
given on the date of such mailing. All notices of meetings of
holders of Notes under Section 8 above shall specify the time
and place of, and in reasonable detail the action proposed
to be taken at, such meeting.
Where applicable, notices will also be mailed to
Barclays Wealth at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: Head of Balance Sheet, Managing
Director, fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ and Barclays Capital at ▇/▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇ The North Colonnade, Canary
Wharf, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention: Head of
Portfolio Management Unit, fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, and will
be deemed to have been given upon receipt.
16. Governing Law and Jurisdiction.
(a) Upon issuance of the Notes, performance and enforcement
of obligations evidenced thereby shall be governed by, and
interpreted in accordance with, the laws of the State of New York.
(b) To the fullest extent it may effectively do so, the Company
hereby (i) irrevocably submits to the non-exclusive jurisdiction
of any New York State or federal court sitting in The City of New
York in any suit, action or proceeding arising out of or relating to
the Notes (a Related Proceeding) and (ii) the Company hereby
irrevocably agrees that all claims in respect of any Related Proceeding
may be heard and determined in such New York State or federal
court. The Company hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to the
maintenance of any Related Proceeding and any objection to any
Related Proceeding whether on the grounds of venue, residence
or domicile. The Company hereby agrees, to the full extent it may
effectively do so, that a final judgment in any Related Proceeding
shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) The Company hereby appoints and agrees to maintain
Corporation Services Company as the person for the time being
and from time to time acting as, or discharging the function
of, agent for service of process, with an office on the date
hereof at 1133 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of the
Company and its property service of copies of the summons
and complaint and any other process which may be served in
any Related Proceeding in such New York State or federal court
sitting in The City of New York (the Process Agent). The Company
hereby agrees that such service may be made by U.S. registered
mail, to the fullest extent permitted by law, or by delivering by
hand a copy of such process to the Company in care of the
Process Agent at the address specified above for the Process
Agent (and the Company hereby agrees that such service will
be effective 10 calendar days after the mailing, to the fullest extent
permitted by law, or delivery by hand of such process to the
office of the Process Agent), and the Company hereby authorizes
and directs the Process Agent to accept on its behalf such service.
The Company hereby agrees that failure of the Process Agent
to give notice to the Company, or failure of the Company to receive
notice, of such service of process shall not affect in any way the
validity of such service on the Process Agent or the Company.
The Company hereby also irrevocably consents, to the fullest extent
permitted by law, to the service of any and all process in any
Related Proceeding in a New York State or federal court sitting in
The City of New York by sending by U.S. registered mail copies of
such process to the Company at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. York
(and the Company hereby agrees that such service will be effective
10 calendar days after mailing thereof). The Company hereby
covenants and agrees that it shall take any and all reasonable action,
including the execution and filing of any and all documents, that
may be necessary to continue the designation of the Process Agent
in full force and effect, and to cause the Process Agent to continue to
act as such. In addition, the Company hereby agrees that none of
its agreements described in this or the preceding paragraph shall
affect the right of any party to serve legal process in any other
manner permitted by law.
17. Definitions.
As used in this Note, each of the following terms shall have the
meaning set forth in the section of this Note set forth opposite
such term in the table below, unless the context otherwise requires:
Additional Amounts ......................... Section 13
Affiliate ........................................... Section 6
Applicable Law ............................... Section 6
Asset Coverage................................. Section 12
authorized denomination .................. Section 4
Business Day .................................... Section 2(b)
Calculation Agent............................. Section 2(c)
Company .......................................... Face of Note
Commission ..................................... Section 6(b)
Company Taxes ............................... Section 6
Event of Default ............................... Section 7
Fiscal Agency Agreement ................ Section 1(a)
Insolvency Event .............................. Section 7
Interest Payment Date ...................... Face of Note
Interest Period................................... Section 2(c)
Intra-Period Broken
Funding Amount...............................
Section 10
Investment Company Act................. Section 6(b)
LIBOR .............................................. Section 2(c)
LIBOR Determination Date ............. Section 2(c)
Lien................................................... Section 6
London Business Day....................... Section 2(c)
Maturity Date ................................... Section 2(d)
Net Asset Value................................ Section 6
Notes ................................................ Section 1(a)
Permitted Liabilities ........................ Section 6(d)
Person ............................................... Section 7
Portfolio Guidelines ......................... Section 6
Regular Record Date ........................ Section 9(a)
Related Proceeding........................... Section 16(b)
Reuters Screen LIBOR01 Page ........ Section 2(c)
Securities Act ................................... Face of Note
Withholding Taxes ........................... Section 13
EXHIBIT B
FORM OF GLOBAL NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S.
PERSON IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER SUCH LAWS. THIS SECURITY SHALL
NOT BE TRANSFERABLE OTHER THAN BY OPERATION OF LAW
AS A RESULT OF THE DEATH, DIVORCE, BANKRUPTCY OR
INCOMPETENCY OF A HOLDER.
[No. R__] U.S.$_____________*
[No. S__]
ISIN No. [___________________]
*Denominations of any integral multiple of U.S.$100,000
above U.S.$100,000.
GLOBAL NOTE
The Thirty-Eight Hundred Fund, LLC
___ Notes due 20[ ]
The Thirty-Eight Hundred Fund, LLC (the Company), for value received,
hereby promises to pay to The Bank of New York Depositary (Nominees)
Limited, or registered assigns, as common depositary for Clearstream
Banking, societe anonyme and/or Euroclear Bank S.A./N.V., on ____,
20__ (or earlier redemption) upon surrender hereof, the principal sum
of ___________________ (U.S.$ ___________), and to pay interest
thereon from ______, 20__ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly
on _____, _____, _____ and _____ (each, an Interest Payment Date),
commencing _____, 20__, until the principal hereof is paid or duly
provided for. The interest rate applicable during each quarterly Interest
Period (as such term is defined in Section 2(c) of the Terms and
Conditions of the Notes attached hereto) shall be equal to the U.S. dollar
three-month LIBOR on the LIBOR Determination Date for such Interest
Period plus ______% per annum.
The interest payable on any such Interest Payment Date will, subject
to certain conditions set forth in the Terms and Conditions of the Notes
attached hereto, be paid to the person in whose name this Note is
registered at the close of business on the Regular Record Date
(as such term is defined in Section 9(a) of the Terms and Conditions
of the Notes attached hereto) preceding such Interest Payment Date.
Reference is made to the further provisions set forth under the Terms
and Conditions of the Notes attached hereto. Such further provisions
shall for all purposes have the same effect as though fully set forth at
this place.
The statements set forth in the legend, if any, above are an integral
part of the terms of this Note and by acceptance hereof each holder
of this Note agrees to be subject to and bound by the terms and
provisions set forth in such legend.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been
manually signed by a duly authorized signatory of the Fiscal Agent
under the Fiscal Agency Agreement referred to in the Terms and
Conditions of the Notes attached hereto.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note
to be duly executed.
Dated:
THE THIRTY-EIGHT HUNDRED FUND, LLC
By______________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON, as Fiscal Agent
By______________________________________
Name:
Title:
EXHIBIT C
FORM OF DEFINITIVE NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER
SUCH LAWS. THIS SECURITY SHALL NOT BE TRANSFERABLE
OTHER THAN BY OPERATION OF LAW AS A RESULT OF THE DEATH,
DIVORCE, BANKRUPTCY OR INCOMPETENCY OF A HOLDER.
No. R- U.S.$_____________*
ISIN No. [___________________]
*Denominations of any integral multiple of U.S.$100,000
above U.S.$100,000.
The Thirty-Eight Hundred Fund, LLC
___ Notes due 20[ ]
The Thirty-Eight Hundred Fund, LLC (the Company), for value received,
hereby promises to pay to The Bank of New York Depositary (Nominees)
Limited, or registered assigns, as common depositary for Clearstream
Banking, societe anonyme and/or Euroclear Bank S.A./N.V., on ____,
20__ (or earlier redemption) upon surrender hereof, the principal sum
of ___________________ (U.S.$ ___________), and to pay interest
thereon from ______, 20__ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly
on _____, _____, _____ and _____ (each, an Interest Payment Date),
commencing _____, 20__, until the principal hereof is paid or duly
provided for. The interest rate applicable during each quarterly
Interest Period (as such term is defined in Section 2(c) of the Terms
and Conditions of the Notes attached hereto) shall be equal to the
U.S. dollar three-month LIBOR on the LIBOR Determination Date for
such Interest Period plus ______% per annum.
The interest payable on any such Interest Payment Date will, subject to
certain conditions set forth in the Terms and Conditions of the Notes
attached hereto, be paid to the person in whose name
this Note is registered
at the close of business on the Regular Record Date (as such term is
defined in Section 9(a) of the Terms and Conditions of the Notes attached
hereto) preceding such Interest Payment Date.
Reference is made to the further provisions set forth under the Terms
and Conditions of the Notes attached hereto. Such further provisions
shall for all purposes have the same effect as though fully set forth
at this place.
The statements set forth in the legend, if any, above are an integral part
of the terms of this Note and by acceptance hereof each holder of this
Note agrees to be subject to and bound by the terms and provisions
set forth in such legend.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually
signed by a duly authorized signatory of the Fiscal Agent under the
Fiscal Agency Agreement referred to in the Terms and Conditions
of the Notes attached hereto.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note
to be duly executed.
Dated:
THE THIRTY-EIGHT HUNDRED FUND, LLC
By______________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON, as Fiscal Agent
By_____________________________________
Name:
Title: