INDENTURE between ANTHRACITE CAPITAL, INC. and WELLS FARGO BANK, N.A., as Trustee Dated as of October 4, 2006
Exhibit
4.1
between
ANTHRACITE
CAPITAL, INC.
and
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trustee
__________________
Dated
as
of October 4, 2006
__________________
TABLE
OF CONTENTS
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Page
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ARTICLE
I
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DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
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2
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Section
1.1
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Definitions.
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2
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Section
1.2
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Compliance
Certificate and Opinions.
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12
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Section
1.3
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Forms
of Documents Delivered to Trustee.
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13
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Section
1.4
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Acts
of Holders.
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14
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Section
1.5
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Notices,
Etc. to Trustee and Company.
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16
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Section
1.6
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Notice
to Holders; Waiver.
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17
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Section
1.7
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Effect
of Headings and Table of Contents.
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17
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Section
1.8
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Successors
and Assigns.
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17
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Section
1.9
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Separability.
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17
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Section
1.10
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Benefits
of Indenture.
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18
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Section
1.11
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Governing
Law.
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18
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Section
1.12
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Submission
to Jurisdiction.
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18
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Section
1.13
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Non-Business
Days.
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18
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Section
1.14
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Counterparts.
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19
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ARTICLE
II
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SENIOR
NOTE FORMS
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19
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Section
2.1
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Form
of Senior Note.
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19
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Section
2.2
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Restrictive
Legend.
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25
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Section
2.3
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Form
of Trustee’s Certificate of Authentication.
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27
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Section
2.4
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Temporary
Senior Notes.
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28
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Section
2.5
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Definitive
Senior Notes.
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28
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ARTICLE
III
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THE
SENIOR NOTES
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29
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Section
3.1
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Payment
of Principal and Interest.
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29
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Section
3.2
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Denominations.
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32
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Section
3.3
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Execution,
Authentication, Delivery and Dating.
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32
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Section
3.4
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Global
Senior Notes.
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33
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Section
3.5
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Registration,
Transfer and Exchange Generally.
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36
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Section
3.6
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Mutilated,
Destroyed, Lost and Stolen Senior Notes.
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37
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Section
3.7
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Persons
Deemed Owners.
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38
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Section
3.8
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Cancellation.
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39
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Section
3.9
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Agreed
Tax Treatment.
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39
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Section
3.10
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CUSIP
Numbers.
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39
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ARTICLE
IV
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SATISFACTION
AND DISCHARGE
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40
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Section
4.1
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Satisfaction
and Discharge of Indenture.
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40
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Section
4.2
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Application
of Trust Money.
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41
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ARTICLE
V
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REMEDIES
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42
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Section
5.1
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Events
of Default.
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42
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Section
5.2
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Acceleration
of Maturity; Rescission and Annulment.
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43
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Section
5.3
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Collection
of Indebtedness and Suits for Enforcement by Trustee.
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44
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Section
5.4
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Trustee
May File Proofs of Claim.
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45
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Section
5.5
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Trustee
May Enforce Claim Without Possession of Senior Notes.
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45
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Section
5.6
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Application
of Money Collected.
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45
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Section
5.7
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Limitation
on Suits.
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46
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Section
5.8
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Unconditional
Right of Holders to Receive Principal, Premium, if any, and
Interest.
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47
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Section
5.9
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Restoration
of Rights and Remedies.
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47
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Section
5.10
|
Rights
and Remedies Cumulative.
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47
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Section
5.11
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Delay
or Omission Not Waiver.
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47
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Section
5.12
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Control
by Holders.
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48
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Section
5.13
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Waiver
of Past Defaults.
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48
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Section
5.14
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Undertaking
for Costs.
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49
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Section
5.15
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Waiver
of Usury, Stay or Extension Laws.
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49
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ARTICLE
VI
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THE
TRUSTEE
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50
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Section
6.1
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Corporate
Trustee Required.
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50
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Section
6.2
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Certain
Duties and Responsibilities.
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50
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Section
6.3
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Notice
of Defaults.
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52
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Section
6.4
|
Certain
Rights of Trustee.
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52
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Section
6.5
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May
Hold Senior Notes.
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54
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Section
6.6
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Compensation;
Reimbursement; Indemnity.
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55
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Section
6.7
|
Resignation
and Removal; Appointment of Successor.
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56
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Section
6.8
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Acceptance
of Appointment by Successor.
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57
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ii
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Section
6.9
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Merger,
Conversion, Consolidation or Succession to Business.
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57
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Section
6.10
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Not
Responsible for Recitals or Issuance of Senior Notes.
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58
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Section
6.11
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Appointment
of Authenticating Agent.
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58
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ARTICLE
VII
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HOLDER’S
LISTS AND REPORTS BY COMPANY
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60
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Section
7.1
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Company
to Furnish Trustee Names and Addresses of Holders.
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60
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Section
7.2
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Preservation
of Information, Communications to Holders.
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60
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Section
7.3
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Reports
by Company.
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61
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ARTICLE
VIII
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CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
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62
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Section
8.1
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Company
May Consolidate, Etc., Only on Certain Terms.
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62
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Section
8.2
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Successor
Company Substituted.
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63
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ARTICLE
IX
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SUPPLEMENTAL
INDENTURES
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64
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Section
9.1
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Supplemental
Indentures without Consent of Holders.
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64
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Section
9.2
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Supplemental
Indentures with Consent of Holders.
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65
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Section
9.3
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Execution
of Supplemental Indentures.
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66
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Section
9.4
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Effect
of Supplemental Indentures.
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66
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Section
9.5
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Reference
in Senior Notes to Supplemental Indentures.
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66
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ARTICLE
X
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COVENANTS
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67
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Section
10.1
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Payment
of Principal, Premium, if any, and Interest.
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67
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Section
10.2
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Money
for Senior Note Payments to be Held in Trust.
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67
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Section
10.3
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Statement
as to Compliance.
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68
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Section
10.4
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[Reserved].
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69
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Section
10.5
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Additional
Covenants.
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69
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Section
10.6
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Waiver
of Covenants.
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70
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Section
10.7
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Treatment
of Senior Notes.
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71
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ARTICLE
XI
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REDEMPTION
OF SENIOR NOTES
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71
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Section
11.1
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Optional
Redemption and Mandatory Redemption.
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71
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Section
11.2
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[Reserved].
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71
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Section
11.3
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Election
to Redeem; Notice to Trustee.
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71
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Section
11.4
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Selection
of Senior Notes to be Redeemed.
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72
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Section
11.5
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Notice
of Redemption.
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72
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iii
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Section
11.6
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Deposit
of Optional Redemption Price.
|
73
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Section
11.7
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Payment
of Senior Notes Called for Redemption.
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74
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ARTICLE
XII
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DEFEASANCE
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74
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Section
12.1
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Defeasance
and Discharge.
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74
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Section
12.2
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Conditions
to Defeasance.
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75
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Section
12.3
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Deposited
Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.
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76
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Section
12.4
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Reinstatement.
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76
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EXHIBITS
Exhibit
A - Form
of
Officer’s Financial Certificate pursuant to Section
7.3(b)
Exhibit
B - Form
of
Officer’s Certificate pursuant to Section
10.3
iv
This
INDENTURE, dated as of October 4, 2006, is between ANTHRACITE CAPITAL, INC.,
a
Maryland corporation (the “Company”),
and
▇▇▇▇▇
FARGO BANK, N.A.,
as
Trustee (in such capacity, the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS,
the
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of its unsecured senior notes (the “Senior
Notes”),
and
to provide the terms and conditions upon which the Senior Notes are to be
authenticated, issued and delivered; and
WHEREAS,
all
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Senior Notes by the
Holders (as hereinafter defined) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Senior Notes,
as
follows:
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1 Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article
I
have the
meanings assigned to them in this Article
I;
(b) the
words
“include,” “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c) all
accounting terms used but not defined herein have the meanings assigned to
them
in accordance with GAAP;
(d) unless
the context otherwise requires, any reference to an “Article,” a “Section,” a
“Schedule” or an “Exhibit” refers to an Article, a Section, a Schedule or an
Exhibit, as the case may be, of or to this Indenture;
(e) the
words
“hereby,” “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or
other subdivision;
(f) a
reference to the singular includes the plural and vice
versa;
and
(g) the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
when
used with respect to any Holder, has the meaning specified in Section
1.4(a).
“Additional
Interest”
means
the interest, if any, that shall accrue on any amounts payable on the Senior
Notes, the payment of which has not been made on the applicable Interest Payment
Date and which shall accrue at the rate per annum specified or determined as
specified in such Senior Note, in each case to the extent legally
enforceable.
“Affiliate”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control,”
when
used with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“controlling”
and
“controlled”
have
meanings correlative to the foregoing.
“Applicable
Depositary Procedures”
means,
with respect to any transfer or transaction involving a Global Senior Note
or
beneficial interest therein, the rules and procedures of the Depositary for
such
Senior Note, in each case to the extent applicable to such transaction and
as in
effect from time to time.
“Authenticating
Agent”
means
any Person authorized by the Trustee pursuant to Section
6.11
to act
on behalf of the Trustee to authenticate the Senior Notes.
“Board
of Directors”
means
the board of directors of the Company or any duly authorized committee of that
board.
“Board
Resolution”
means
a
copy of a resolution certified by the Secretary or an Assistant Secretary of
the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
“Business
Day”
means
any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee is closed for business.
“Change
of Control”
means
(i) any
person (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act),
including a “group” as defined in Section 13(d)(3) of the Exchange Act (but
excluding a director or other fiduciary holding securities under an employee
benefit plan of the Company), becomes the beneficial owner of Equity Interests
of the Company having at least fifty percent (50%) of the total number of votes
that may be cast for the election of directors of the Company; or (ii) the
merger or other business combination of the Company, sale of all or
substantially all of the Company’s assets or combination of the foregoing
transactions (a “Transaction”),
other
than a Transaction immediately following which the shareholders of the Company
immediately prior to the Transaction continue to have a majority of the voting
power in the resulting entity (excluding for this purpose any shareholder owning
directly or indirectly more than ten percent (10%) of the shares of the other
company involved in the Transaction).
3
“Change
of Control Election”
has
the
meaning specified in Section
10.5(b).
“Change
of Control Event”
means
the occurrence of (i) a Change of Control and (ii) a Ratings Downgrade as well
as a deemed Change of Control Event pursuant to Section
10.5(b).
“Change
of Control Event Notice”
has
the
meaning specified in Section
10.5(b).
“Change
of Control Notice”
has
the
meaning specified in Section
10.5(b).
“Closing
Date”
means
the date specified in the Purchase Agreement for the offer and sale of the
Senior Notes issued pursuant to this Indenture.
“Code”
means
the Internal Revenue Code of 1986 or any successor statute thereto, in each
case
as amended from time to time.
“Commission”
has
the
meaning specified in Section
7.3(c).
“Company”
means
the Person named as the “Company” in the first paragraph of this Indenture until
a successor Person shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor
Person.
“Company
Request”
and
“Company
Order”
mean,
respectively, the written request or order signed in the name of the Company
by
its Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its Chief Executive Officer, President or a Vice President, and
by
its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
“Consolidated
Tangible Net Worth”
means
(i) the consolidated net worth of the Company and its consolidated subsidiaries
calculated in accordance with GAAP as in effect on the date of determination
minus (ii) the consolidated intangibles of the Company and its consolidated
subsidiaries including, without limitation, goodwill, trademarks, trade names,
copyrights, patents, patent applications, licenses, and rights in any of the
foregoing and other items treated as intangibles in accordance with GAAP as
in
effect on the date hereof.
“Corporate
Trust Office”
means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
this
Indenture is located at ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust
Department—Anthracite Capital, Inc..
“Debt”
means,
with respect to any Person, whether recourse is to all or a portion of the
assets of such Person, whether currently existing or hereafter incurred and
whether or not contingent and without duplication, (i) every obligation of
such
Person for money borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to letters
of
credit, bankers’ acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of
such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or other accrued liabilities arising
in
the ordinary course of business); (v) every capital lease obligation of such
Person; (vi) all indebtedness of such Person, whether incurred on or prior
to
the date of this Indenture or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; (vii)
every obligation of the type referred to in clauses (i) through (vi) of another
Person and all dividends of another Person the payment of which, in either
case,
such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise; and (viii) any renewals, extensions,
refundings, amendments or modifications of any obligation of the types referred
to in clauses (i) through (vii).
4
“Defaulted
Interest”
has
the
meaning specified in Section
3.1(c).
“Defeasance”
has
the
meaning specified in Section
12.1.
“Definitive
Senior Note Certificates”
means
Senior Notes issued in certificated fully registered form that are not Global
Senior Notes.
“Depositary”
means
an organization registered as a clearing agency under the Exchange Act that
is
designated as Depositary by the Company or any successor thereto. DTC will
be
the initial Depositary.
“Depositary
Participant”
means
a
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Depositary effects book-entry transfers and pledges of securities
deposited with the Depositary.
“Dollar”
or
“$”
means
the currency of the United States of America that, as at the time of payment,
is
legal tender for the payment of public and private debts.
“DTC”
means
The Depository Trust Company, a New York corporation, or any successor
thereto.
“▇▇▇▇▇”
has
the
meaning specified in Section
7.3(c).
“Electing
Senior Notes”
shall
mean the Outstanding
Senior Notes making a Change of Control Election.
“Equity
Interests”
means
(a) the partnership interests (both common and preferred partnership interests)
in a partnership (whether a general or limited partnership), (b) the membership
interests in a limited liability company (both common and preferred membership
interests) and (c) the shares or stock interest (both common stock and preferred
stock) in a corporation.
“ERISA”
means
the Employee Retirement Income Security Act of 1974 or any successor statute
thereto, in each case as amended from time to time.
5
“Event
of Default”
has
the
meaning specified in Section
5.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934 or any successor statute thereto, in each
case as amended from time to time.
“Expiration
Date”
has
the
meaning specified in Section
1.4(h).
“GAAP”
means
United States generally accepted accounting principles, consistently applied,
from time to time in effect.
“Global
Senior Note”
means
a
Senior Note that evidences all or part of the Senior Notes, the ownership and
transfers of which shall be made through book entries by a
Depositary.
“Government
Obligation”
means
(a) any security that is (i) a direct obligation of the United States of America
of which the full faith and credit of the United States of America is pledged
or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the
United States of America, which, in either case of clause (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a “bank” (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation that
is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of
principal of or interest on any Government Obligation that is so specified
and
held; provided,
that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from
any amount received by the custodian in respect of the Government Obligation
or
the specific payment of principal or interest evidenced by such depositary
receipt.
“Holder”
means
a
Person in whose name a Senior Note is registered in the Securities
Register.
“Indenture”
means
this Indenture as originally executed or as it may from time to time be amended
or supplemented by one or more amendments or indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
“Interest
Payment Date”
means
January 30, April 30, July 30 and October 30 of each year, commencing on October
30, 2006, during the term of this Indenture.
“Investment
Company Act”
means
the Investment Company Act of 1940 or any successor statute thereto, in each
case as amended from time to time.
“Maturity,”
when
used with respect to any Senior Note, means the date on which the principal
of
such Senior Note or any installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration
of
acceleration, call for redemption or otherwise.
“Notice
of Default”
means
a
written notice of the kind specified in Section
5.1(c).
6
“Officers’
Certificate”
means
a
certificate signed by the Chairman of the Board, a Vice Chairman of the Board,
the Chief Executive Officer, the President or a Vice President, and by the
Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or
an
Assistant Secretary, of the Company and delivered to the Trustee.
“Operative
Documents”
means
the Purchase Agreement, this Indenture and the Senior Notes.
“Opinion
of Counsel”
means
a
written opinion of counsel, who may be counsel for or an employee of the Company
or any Affiliate of the Company.
“Optional
Redemption Price”
means
(i) prior to October 30, 2012, the sum of the present values, discounted to
the
date fixed as the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve thirty (30) day months), at a rate equal to the sum
of
the applicable Treasury Rate plus fifty (50) basis points, of (A) the
outstanding principal amount of the Senior Notes and (B) the interest payments
which would become due after such Redemption Date but for such redemption until
the Stated Maturity and (ii) on or after October 30, 2012, the lesser of (A)
the
amount calculated pursuant to clause (i) of this definition and (B) the
following dollar price values for each $1,000 of principal amount of Senior
Notes:
from
October 30, 2012 to October 29, 2013, $1040;
from
October 30, 2013 to October 29, 2014, $1030;
from
October 30, 2014 to October 29, 2015, $1020;
from
October 30, 2015 to October 29, 2016, $1010;
together,
in the case of both clauses (i) and (ii), with accrued and unpaid interest,
including any Additional Interest, to but excluding the date fixed as the
Redemption Date.
“Original
Issue Date”
means
the date of original issuance of each Senior Note.
“Outstanding”
means,
when used in reference to any Senior Notes, as of the date of determination,
all
Senior Notes theretofore authenticated and delivered under this Indenture,
except:
(i)
Senior Notes theretofore canceled by the Trustee or delivered to the Trustee
for
cancellation;
(ii)
Senior Notes for whose payment or redemption money in the necessary amount
has
been theretofore deposited with the Trustee or any Paying Agent (other than
the
Company) in trust or set aside and segregated in trust by the Company (if the
Company and/or its Affiliate shall act as its own Paying Agent) for the Holders
of such Senior Notes; provided,
that if
the Company is acting as Paying Agent, Senior Notes for which payment or
redemption money has been so deposited in trust with the Paying Agent shall
be
considered to remain Outstanding until such time as such payment or redemption
money has actually been paid in full to the Holders of such Senior Notes; and
provided,
further,
that,
if such Senior Notes are to be redeemed, notice of such redemption has been
duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
7
(iii)
Senior Notes that have been paid or in substitution for or in lieu of which
other Senior Notes have been authenticated and delivered pursuant to the
provisions of this Indenture, unless proof satisfactory to the Trustee is
presented that any such Senior Notes are held by Holders in whose hands such
Senior Notes are valid, binding and legal obligations of the
Company;
provided,
that in
determining whether the Holders of the requisite principal amount of Outstanding
Senior Notes have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Senior Notes owned by the Company or any other
obligor upon the Senior Notes or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding unless the Company
shall hold all Outstanding Senior Notes, except that, in determining whether
the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Senior Notes that
a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Senior Notes so owned that have been pledged in good faith may
be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Senior Notes and that
the pledgee is not the Company or any other obligor upon the Senior Notes or
any
Affiliate of the Company or such other obligor.
“Paying
Agent”
means
the Trustee or any Person authorized by the Company to pay the principal of
or
any premium or interest on, or other amounts in respect of, any Senior Notes
on
behalf of the Company.
“Person”
means
a
legal person, including any individual, corporation, estate, partnership
(general or limited), joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government,
or
any agency or political subdivision thereof, or any other entity of whatever
nature.
“Place
of Payment”
means,
with respect to the Senior Notes, the Corporate Trust Office of the Trustee.
“Predecessor
Senior Note”
of
any
particular Senior Note means every previous Senior Note evidencing all or a
portion of the same debt as that evidenced by such particular Senior Note.
For
the purposes of this definition, any security authenticated and delivered under
Section
3.6
in lieu
of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Senior
Note.
“Purchase
Agreement”
means
the Note Purchase Agreement, dated as of the date hereof, between the Company
and the Purchaser.
“Purchaser”
means
Kodiak Warehouse LLC, a Delaware limited liability company, its successors
and
assigns
8
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A under the Securities
Act.
“Ratings
Downgrade”
means
a
downgrading in or withdrawal of the Company’s general corporate rating or the
rating accorded to the Company's debt securities or preferred stock, if any,
by
any two of the Rating Agencies from such rating prior to the Change of
Control.
“Redemption
Date”
means,
when used with respect to any Senior Note to be redeemed, the date fixed for
such redemption by or pursuant to this Indenture.
“Regular
Record Date”
for
the
interest payable on any Interest Payment Date with respect to the Senior Notes
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).
“Responsible
Officer”
means,
when used with respect to the Trustee, the officer in the corporate trust
department of the Trustee having direct responsibility for the administration
of
this Indenture.
“Rights
Plan”
means
a
plan of the Company providing for the issuance by the Company to all holders
of
its common Equity Interests of rights entitling the holders thereof to subscribe
for or purchase shares or units of any class or series of Equity Interests
in
the Company which rights (i) are deemed to be transferred with such Equity
Interests and (ii) are also issued in respect of future issuances of such Equity
Interests, in each case until the occurrence of a specified event or
events.
“Securities
Act”
means
the Securities Act of 1933 or any successor statute thereto, in each case as
amended from time to time.
“Senior
Note”
or
“Senior
Notes”
shall
have meanings specified in the first recital of this Indenture.
“Senior
Notes Certificate”
means
a
certificate evidencing ownership of the Senior Notes, substantially in the
form
provided in Article
II.
“Securities
Register”
and
“Securities
Registrar”
have
the respective meanings specified in Section
3.5(a).
“Special
Record Date”
for
the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant
to
Section
3.1(c).
“Stated
Maturity”
means
October 30, 2016.
“Subordinate
Debt”
has
the
meaning specified in Section
10.5(d).
“Subsidiary”
means
a
Person more than fifty percent (50%) of the outstanding voting stock or other
voting interests of which is owned, directly or indirectly, by the Company
or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, “voting
stock”
means
stock that ordinarily has voting power for the election of directors, whether
at
all times or only so long as no senior class of stock has such voting power
by
reason of any contingency.
9
“Trustee”
means
the Person named as the “Trustee” in the first paragraph of this Indenture,
solely in its capacity as such and not in its individual capacity, until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and, thereafter, “Trustee” shall mean or include each Person
who is then a Trustee hereunder.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939 or any successor statute thereto, in each case
as amended from time to time.
Section
1.2 Compliance
Certificate and Opinions.
(a) Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officers’ Certificate stating that all conditions
precedent (including covenants compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that, in the case of any application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificate provided pursuant
to
Section
10.3)
shall
include:
(i)
a
statement by each individual signing such certificate or opinion that such
individual has read such condition or covenant and the definitions herein
relating thereto;
(ii)
a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions of such individual contained in such
certificate or opinion are based;
(iii)
a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such condition or covenant has been
complied with; and
(iv)
a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
Section
1.3 Forms
of Documents Delivered to Trustee.
(a) In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
10
(b) Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should
know,
that the certificate or opinion or representations with respect to matters
upon
which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d) Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall
be
discovered therein, a new document or instrument may be substituted therefor
in
corrected form with the same force and effect as if originally received in
the
corrected form and, irrespective of the date or dates of the actual execution
and/or delivery thereof, such substitute document or instrument shall be deemed
to have been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted. Without
limiting the generality of the foregoing, any Senior Notes issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Senior Notes.
Section
1.4 Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given to or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed
in
writing and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to
as the “Act”
of
the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section
1.4.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such execution is by
a
Person acting in other than his or her individual capacity, such certificate
or
affidavit shall also constitute sufficient proof of his or her authority. The
fact and date of the execution by any Person of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine.
11
(c) The
ownership of Senior Notes shall be proved by the Securities
Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Senior Note shall bind every future Holder of the
same Senior Note and the Holder of every Senior Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in
respect of anything done or suffered to be done by the Trustee or the Company
in
reliance thereon, whether or not notation of such action is made upon such
Senior Note.
(e) Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Senior Note may do so with regard to all or any part
of
the principal amount of such Senior Note or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or
any
part of such principal amount.
(f) Except
as
set forth in paragraph (g) of this Section
1.4,
the
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Senior Notes entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders
of
Senior Notes. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Senior Notes on such record date, and no other Holders, shall
be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided,
that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Senior Notes on such record date. Nothing in this paragraph shall
be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect). Promptly after any record date
is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Senior Notes in the manner set forth in Section
1.6.
(g) The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Senior Notes entitled to join in the giving or making
of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission
or
annulment thereof referred to in Section
5.2,
(iii)
any request to institute proceedings referred to in Section
5.7(b)
or (iv)
any direction referred to in Section
5.12.
If any
record date is set pursuant to this paragraph, the Holders of Outstanding Senior
Notes on such record date, and no other Holders, shall be entitled to join
in
such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided,
that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Senior Notes on such record date. Nothing in this paragraph shall
be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect). Promptly after any record date
is
set pursuant to this paragraph, the Trustee, at the Company’s expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Senior Notes in the manner set forth in Section
1.6.
12
(h) With
respect to any record date set pursuant to paragraph (f) or (g) of this
Section
1.4,
the
party hereto that sets such record date may designate any day as the
“Expiration
Date”
and
from time to time may change the Expiration Date to any earlier or later day;
provided,
that no
such change shall be effective unless notice of the proposed new Expiration
Date
is given to the other party hereto in writing, and to each Holder of Senior
Notes in the manner set forth in Section
1.6,
on or
prior to the existing Expiration Date. If an Expiration Date is not designated
with respect to any record date set pursuant to this Section
1.4,
the
party hereto that set such record date shall be deemed to have initially
designated the ninetieth (90th) day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date
as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the one hundred eightieth (180th) day after the applicable
record date.
Section
1.5 Notices,
Etc. to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with and received
by the Trustee at its Corporate Trust Office; or
(b) the
Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first class, postage prepaid, to the Company
addressed to it at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at any
other
address previously furnished in writing to the Trustee by the
Company.
Section
1.6 Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date (if any), and not earlier than the earliest date
(if
any), prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when
said
notice is required to be given pursuant to any provision of this Indenture,
then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice. In any case where notice
to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
13
Section
1.7 Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
Section
1.8 Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of law.
Except in connection with a transaction involving the Company that is permitted
under Article
VIII
and
pursuant to which the assignee agrees in writing to perform the Company’s
obligations hereunder, the Company shall not assign its obligations
hereunder.
Section
1.9 Separability.
If
any
provision in this Indenture or in the Senior Notes shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
Section
1.10 Benefits
of Indenture.
Nothing
in this Indenture or in the Senior Notes, express or implied, shall give to
any
Person, other than the parties hereto and their successors and assigns, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section
1.11 Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company
and
the Trustee shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
Section
1.12 Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
14
Section
1.13 Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Senior Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Senior Notes) payment of interest, premium, if any, or
principal or other amounts in respect of such Senior Note shall not be made
on
such date, but shall be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed
for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity.
Section
1.14 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE
II
SENIOR
NOTE FORMS
Section
2.1 Form
of Senior Note.
Any
Senior Note issued hereunder shall be in substantially the following form:
ANTHRACITE
CAPITAL, INC.
Senior
Note due 2016
|
No.
|
$
|
|||
ANTHRACITE
CAPITAL, INC., a corporation organized and existing under the laws of Maryland
(hereinafter called the “Company,”
which
term includes any successor Person under the Indenture hereinafter referred
to),
for value received, hereby promises to pay to [_____________],
or
registered assigns, the principal sum of [PRINCIPAL
AMOUNT]
($[____________])
[IF
THE SENIOR NOTE IS A GLOBAL SENIOR NOTE, THEN INSERT: or such other principal
amount represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the
Indenture]
on
October 30, 2016. The Company further promises to pay interest on said principal
sum from and including October 4, 2006, or from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears to but excluding and on January 30, April 30, July 30
and
October 30 of each year, commencing October 30, 2006, or if any such day is
not
a Business Day, on the next succeeding Business Day (and no interest shall
accrue in respect of the amounts whose payment is so delayed for the period
from
and after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at
a fixed rate equal to 7.22% per annum, until the principal hereof is paid or
duly provided for or made available for payment; provided,
that
any overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at a fixed rate equal to 7.22% per annum (to
the
extent that the payment of such interest shall be legally enforceable),
compounded quarterly, from and including the dates such amounts are due to
but
excluding the dates such amounts are paid or made available for payment, and
such interest shall be payable on demand.
15
The
amount of interest payable for any interest period shall be computed on the
basis of a three hundred sixty (360)-day year of twelve (12) thirty (30)-day
months and the amount payable for any partial period shall be computed on the
basis of the actual number of days elapsed in a three hundred sixty (360)-day
year of twelve (12) thirty (30)-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Senior
Note
(or one or more Predecessor Senior Notes) is registered at the close of business
on the Regular Record Date for such interest installment. Any such interest
not
so punctually paid or duly provided for shall forthwith cease to be payable
to
the Holder on such Regular Record Date and may either be paid to the Person
in
whose name this Senior Note (or one or more Predecessor Senior Notes) is
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Senior Notes not less than ten (10) days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated
quotation system on which the Senior Notes may be listed, traded or quoted
and
upon such notice as may be required by such exchange or automated quotation
system, all as more fully provided in the Indenture.
During
an
Event of Default, the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any Equity Interests of the Company, (ii) vote in favor of
or
permit or otherwise allow any of its Subsidiaries to declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any preferred Equity
Interests of such Subsidiaries or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred Equity Interests are perpetual or otherwise), or (iii) make any
payment of principal of or any interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari
passu
in all
respects with or junior in interest to the Senior Notes (other than (A)
repurchases, redemptions or other acquisitions of Equity Interests of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or Equity Interests purchase plan or in connection with the issuance of Equity
Interests in the Company (or securities convertible into or exercisable for
such
Equity Interests) as consideration in an acquisition transaction entered into
prior to the applicable Event of Default, (B) as a result of an exchange,
conversion reclassification or combination of any class or series of the
Company’s Equity Interests (or any Equity Interests in a Subsidiary of the
Company) for any class or series of the Company’s Equity Interests or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s Equity Interests, (C) the purchase of fractional interests in the
Equity Interests of the Company pursuant to the conversion or exchange
provisions of such Equity Interests or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any Rights
Plan,
the issuance of rights, Equity Interests or other property under any Rights
Plan
or the redemption or repurchase of rights pursuant thereto or (E) any dividend
in the form of Equity Interests, warrants, options or other rights where the
dividend Equity Interest or the Equity Interest issuable upon exercise of such
warrants, options or other rights is the same Equity Interest as that on which
the dividend is being paid or ranks pari
passu
with or
junior to such Equity Interest).
16
Payment
of principal of, premium, if any, and interest on this Senior Note shall be
made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of this Senior
Note
shall be made at the Place of Payment upon surrender of such Senior Notes to
the
Paying Agent, and payments of interest shall be made, subject to such surrender
where applicable, by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to
the
Paying Agent at least ten (10) Business Days prior to the date for payment
by
the Person entitled thereto unless proper written transfer instructions have
not
been received by the relevant record date, in which case such payments shall
be
made by check mailed to the address of such Person as such address shall appear
in the Senior Note Register.
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Senior Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
[FORM
OF
REVERSE OF SECURITY]
This
Senior Note is one of a duly authorized issue of senior notes of the Company
(the “Senior
Notes”)
issued
under the Indenture, dated as of October 4, 2006 (the “Indenture”),
between the Company and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee (in such capacity,
the “Trustee,”
which
term includes any successor trustee under the Indenture), to which Indenture
and
all indentures supplemental thereto reference is hereby made for a statement
of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Senior Notes, and of the
terms upon which the Senior Notes are, and are to be, authenticated and
delivered. All terms used in this Senior Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The
Company may, on any date, at its option, upon not less than thirty (30) days’
nor more than sixty (60) days’ written notice to the Holders of the Senior Notes
(unless a shorter notice period shall be satisfactory to the Trustee) subject
to
the terms and conditions of Article XI of the Indenture, redeem this Senior
Note
in whole at any time or in part from time to time at an Optional Redemption
Price in an amount equal to (i)
prior
to October 30, 2012, the sum of the present values, discounted to the date
fixed
as the Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve thirty (30) day months), at a rate equal to the sum of
the
applicable Treasury Rate plus fifty (50) basis points , of (A) the outstanding
principal amount of the Senior Notes and (B) the interest payments which would
become due after such Redemption Date but for such redemption until the Stated
Maturity and (ii) on or after October 30, 2012, the lesser of (A) the amount
calculated pursuant to clause (i) of this definition and (B) the following
dollar price values for each $1,000 of principal amount of Senior
Notes:
17
from
October 30, 2012 to October 29, 2013, $1040;
from
October 30, 2013 to October 29, 2014, $1030;
from
October 30, 2014 to October 29, 2015, $1020;
from
October 30, 2015 to October 29, 2016, $1010;
together,
in the case of both clauses (i) and (ii), with accrued and unpaid interest,
including any Additional Interest, to but excluding the date fixed as the
Redemption Date.
In
the
event of redemption of this Senior Note in part only, a new Senior Note or
Senior Notes for the unredeemed portion hereof will be issued in the name of
the
Holder hereof upon the cancellation hereof. If less than all the Senior Notes
are to be redeemed, the particular Senior Notes to be redeemed shall be selected
not more than sixty (60) days prior to the Redemption Date by the Trustee from
the Outstanding Senior Notes not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for
the selection for redemption of a portion of the principal amount of any Senior
Note.
The
Indenture permits, with certain exceptions as therein provided, the Company
and
the Trustee at any time to enter into a supplemental indenture or indentures
for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Senior Notes, with the consent of the Holders of
not
less than a majority in principal amount of the Outstanding Senior Notes. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Senior Notes, on behalf of the Holders of all Senior
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Senior Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Senior Note
and
of any Senior Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent
or
waiver is made upon this Senior Note.
No
reference herein to the Indenture and no provision of this Senior Note or of
the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium, if any, and
interest, including any Additional Interest (to the extent legally enforceable),
on this Senior Note at the times, place and rate, and in the coin or currency,
herein prescribed.
18
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Senior Note is restricted to transfers to “Qualified
Purchasers” (as such term is defined in the Investment Company Act of 1940, as
amended) and is registrable in the Securities Register, upon surrender of this
Senior Note for registration of transfer at the office or agency of the Company
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar and duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Senior Notes, of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The
Senior Notes are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Senior Notes are exchangeable for a like aggregate principal amount
of
Senior Notes and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Senior Note is registered as the owner hereof for
all
purposes, whether or not this Senior Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the
contrary.
The
Company and, by its acceptance of this Senior Note or a beneficial interest
herein, the Holder of, and any Person that acquires a beneficial interest in,
this Senior Note agree that, for United States federal, state and local tax
purposes, it is intended that this Senior Note constitute
indebtedness.
This
Senior Note shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations Law).
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
on
this [DAY]
day of
[MONTH],
[YEAR].
ANTHRACITE
CAPITAL, INC.
By:
_____________________________________
Name:
___________________________________
Title:
____________________________________
19
Section
2.2 Restrictive
Legend.
(a) Any
Senior Note issued hereunder shall bear a legend in substantially the following
form:
[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY
(“DTC”)
OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SENIOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC
OR
BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE
SENIOR NOTES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES
ACT”),
AND
SUCH SENIOR NOTES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF ANY SENIOR NOTES IS HEREBY NOTIFIED
THAT
THE SELLER OF THE SENIOR NOTES MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE
SECURITIES ACT.
THE
HOLDER OF THE SENIOR NOTES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SENIOR NOTES MAY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY OR (II) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS (a) A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) AND (b) A “QUALIFIED PURCHASER” (AS
DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED),
OR (III) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SENIOR
NOTES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
20
THE
SENIOR NOTES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN
AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SENIOR NOTES, OR ANY INTEREST
THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000
AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF
NO
LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SENIOR NOTES
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF
OR
INTEREST ON SUCH SENIOR NOTES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SENIOR NOTES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT
PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”),
OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”),
OR
SIMILAR LAW (EACH A “PLAN”),
OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER
OF THE SENIOR NOTES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”
(b) The
above
legends shall not be removed from any Senior Note unless there is delivered
to
the Company satisfactory evidence, which may include an Opinion of Counsel,
as
may be reasonably required to ensure that any future transfers thereof may
be
made without restriction under or violation of the provisions of the Securities
Act and other applicable law. Upon provision of such satisfactory evidence,
the
Company shall execute and deliver to the Trustee, and the Trustee shall deliver,
upon receipt of a Company Order directing it to do so, a Senior Note that does
not bear the legend.
21
Section
2.3 Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate of authentication shall be in substantially the following
form:
This
is
one of the Senior Notes referred to in the within-mentioned Indenture.
Dated:
▇▇▇▇▇
FARGO BANK, N.A., not in its individual capacity, but solely as
Trustee
By:
_______________________________________
Name:
Title:
Section
2.4 Temporary
Senior Notes.
(a) Pending
the preparation of definitive Senior Notes, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Senior
Notes
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Senior Notes
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Senior Notes may determine, as evidenced by their execution of such Senior
Notes.
(b) If
temporary Senior Notes are issued, the Company will cause definitive Senior
Notes to be prepared without unreasonable delay. After the preparation of
definitive Senior Notes, the temporary Senior Notes shall be exchangeable for
definitive Senior Notes upon surrender of the temporary Senior Notes at the
office or agency of the Company designated for that purpose without charge
to
the Holder. Upon surrender for cancellation of any one or more temporary Senior
Notes, the Company shall execute and, upon receipt of a Company Order, the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Senior Notes of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Senior Notes. Until so exchanged, the temporary Senior Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Senior Notes.
Section
2.5 Definitive
Senior Notes.
The
Senior Notes issued on the Original Issue Date shall be issued as directed
by
the Purchaser on or prior to the Closing Date either (i) in the form of one
or
more Global Senior Notes or (ii) in the form of one or more Definitive Senior
Note Certificates. Global
Senior Notes shall be, except as provided in Section 3.4,
Book-Entry Senior Notes issued in the form of one or more Global Senior Notes
registered in the name of the Depositary, or its nominee and deposited with
the
Depositary or the Trustee as custodian for the Depositary for credit by the
Depositary to the respective accounts of the Depositary Participants thereof
(or
such other accounts as they may direct). The Senior Notes issued to a Person
other than a Purchaser that is not a QIB shall be issued in the form of
Definitive Senior Notes Certificates. The
definitive Senior Notes shall be printed, lithographed or engraved, or produced
by any combination of these methods, if required by any securities exchange
on
which the Senior Notes may be listed, on a steel engraved border or steel
engraved borders or may be produced in any other manner permitted by the rules
of any securities exchange on which the Senior Notes may be listed, all as
determined by the officers executing such Senior Notes, as evidenced by their
execution of such Senior Notes.
22
ARTICLE
III
THE
SENIOR NOTES
Section
3.1 Payment
of Principal and Interest.
(a) The
unpaid principal amount of the Senior Notes shall bear interest at a fixed
rate
equal to 7.22% per annum,
until
paid or duly provided for, such interest to accrue from and including the
Original Issue Date or from and including the most recent Interest Payment
Date
to which interest has been paid or duly provided for, and any overdue principal,
premium, if any, and any overdue installment of interest shall bear Additional
Interest at the rate equal to a fixed rate equal to 7.22% per annum (to the
extent that the payment of such interest shall be legally enforceable),
compounded quarterly from and including the dates such amounts are due to but
excluding the dates such amounts are paid or funds for the payment thereof
are
made available for payment.
(b) Interest
and Additional Interest on any Senior Note that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Senior Note (or one or more Predecessor Senior Notes)
is registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Senior Note or on a Redemption Date shall be paid to the Person
to whom principal is paid. The initial payment of interest on any Senior Note
that is issued between a Regular Record Date and the related Interest Payment
Date shall be payable as provided in such Senior Note.
(c) Any
interest on any Senior Note that is due and payable, but is not timely paid
or
duly provided for, on any Interest Payment Date for Senior Notes (herein called
“Defaulted
Interest”)
shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
paragraph (i) or (ii) below:
23
(i)
The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Senior Notes (or their respective Predecessor Senior Notes)
are
registered at the close of business on a special record date for the payment
of
such Defaulted Interest (a “Special
Record Date”),
which
shall be fixed in the following manner. At least thirty (30) days prior to
the
date of the proposed payment, the Company shall notify the Trustee in writing
of
the amount of Defaulted Interest proposed to be paid on each Senior Note and
the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest. Thereupon the Trustee shall fix
a
Special Record Date for the payment of such Defaulted Interest, which shall
be
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of a Senior Note at the address of such
Holder as it appears in the Securities Register not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Senior
Notes (or their respective Predecessor Senior Notes) are registered on such
Special Record Date; or
(ii)
The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Senior Notes may be listed, traded or quoted
and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Senior Notes are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d) Payments
of interest on the Senior Notes shall include interest accrued to but excluding
the respective Interest Payment Dates. The amount of interest payable for any
interest period shall be computed on the basis of a three hundred sixty
(360)-day year of twelve (12) thirty (30)-day months and the amount payable
for
any partial period shall be computed on the basis of the actual number of days
elapsed in a three hundred sixty (360)-day year of twelve (12) thirty (30)-day
months.
(e) Payment
of principal of, premium, if any, and interest on the Senior Notes shall be
made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of such Senior
Notes shall be made at the Place of Payment upon surrender of such Senior Notes
to the Paying Agent and payments of interest shall be made, subject to such
surrender where applicable, by wire transfer at such place and to such account
at a banking institution in the United States as may be designated in writing
to
the Paying Agent at least ten (10) Business Days prior to the date for payment
by the Person entitled thereto unless proper written transfer instructions
have
not been received by the relevant record date, in which case such payments
shall
be made by check mailed to the address of such Person as such address shall
appear in the Senior Note Register.
24
(f) The
parties hereto acknowledge and agree that the Holders have certain rights to
direct the Company to modify the Interest Payment Dates and corresponding
Redemption Date and Stated Maturity of the Senior Notes or a portion of the
Senior Notes pursuant to the Purchase Agreement. In the event any such
modifications are made to the Senior Notes or a portion of the Senior Notes,
appropriate changes to the form of Senior Note set forth in Article
II
hereof
shall be made prior to the issuance and authentication of new or replacement
Senior Notes. Any such modification of the Interest Payment Dates and
corresponding Redemption Date and Stated Maturity with respect to any Senior
Notes or tranche of Senior Notes shall not require or be subject to the consent
of the Trustee.
(g) Subject
to the foregoing provisions of this Section
3.1,
each
Senior Note delivered under this Indenture upon transfer of or in exchange
for
or in lieu of any other Senior Note shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Senior
Note.
(h) The
Senior Notes will rank pari
passu
with
each other and the Company other senior unsecured obligations from time to
time
outstanding.
Section
3.2 Denominations.
The
Senior Notes shall be in registered form without coupons and shall be issuable
in minimum denominations of $100,000 and any integral multiple of $1,000 in
excess thereof.
Section
3.3 Execution,
Authentication, Delivery and Dating.
(a) At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Senior Notes in an aggregate principal amount (including
all then Outstanding Senior Notes) not in excess of Fifty Million Dollars
($50,000,000) executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Senior
Notes, and the Trustee in accordance with the Company Order shall authenticate
and deliver such Senior Notes. In authenticating such Senior Notes, and
accepting the additional responsibilities under this Indenture in relation
to
such Senior Notes, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon:
(i)
a
copy of any Board Resolution relating thereto; and
(ii)
an
Opinion of Counsel stating that: (1) such Senior Notes, when authenticated
and
delivered by the Trustee and issued by the Company in the manner and subject
to
any conditions specified in such Opinion of Counsel, will constitute, and the
Indenture constitutes, valid and legally binding obligations of the Company,
each enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability relating to or affecting creditors’ rights and to general
equity principles; (2) the Senior Notes have been duly authorized and executed
by the Company and have been delivered to the Trustee for authentication in
accordance with this Indenture; (3) the Senior Notes are not required to be
registered under the Securities Act; and (4) the Indenture is not required
to be
qualified under the Trust Indenture Act.
25
(b) The
Senior Notes shall be executed on behalf of the Company by its Chairman of
the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Senior Notes may be manual or facsimile. Senior Notes bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals
or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Senior Notes or did not hold such offices at the date of such
Senior Notes.
(c) No
Senior
Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Senior Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Senior Note shall be conclusive
evidence, and the only evidence, that such Senior Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Senior Note shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall have delivered such Senior
Note to the Trustee for cancellation as provided in Section
3.8,
for all
purposes of this Indenture such Senior Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(d) Each
Senior Note shall be dated the date of its authentication.
Section
3.4 Global
Senior Notes.
(a) Each
Global Senior Note issued under this Indenture shall be registered in the name
of the Depositary designated by the Company for such Global Senior Note or
a
nominee thereof and delivered to such Depositary or a nominee thereof or a
custodian therefor, and each such Global Senior Note shall constitute a single
Senior Note for all purposes of this Indenture. Notwithstanding any other
provision in this Indenture, no Global Senior Note may be exchanged in whole
or
in part for registered Senior Notes, and no transfer of a Global Senior Note
in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Senior Note or a nominee thereof unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Senior Note, and no qualified successor
is appointed by the Company within ninety (90) days of receipt by the Company
of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing. Upon the occurrence
of
any event specified in clause (i), (ii), (iii) or (iv) above in this
Section
3.4(b),
the
Trustee shall notify the Depositary and instruct the Depositary to notify all
owners of beneficial interests in such Global Senior Note of the occurrence
of
such event and of the availability of Senior Notes to such owners of beneficial
interests requesting the same. The Trustee may conclusively rely, and be
protected in relying, upon the written identification of the owners of
beneficial interests furnished by the Depositary, and shall not be liable for
any delay resulting from a delay by the Depositary. Upon the issuance of such
Senior Notes and the registration in the Securities Register of such Senior
Notes in the names of the Holders of the beneficial interests therein, the
Trustee shall recognize such holders of beneficial interests as Holders.
Notwithstanding
the foregoing, if an owner of a beneficial interest in a Global Senior Note
wishes at any time to transfer an interest in such Global Senior Note to a
Person other than a QIB, such transfer shall be effected, subject to the
Applicable Depositary Procedures, in accordance with the provisions of this
Section
3.4
and
Section
3.5,
and the
transferee shall receive a Definitive Senior Note Certificate in connection
with
such transfer. A holder of a Definitive Senior Note Certificate that is a QIB
may, upon request, and in accordance with the provisions of this Section
3.4
and
Section
3.5,
exchange such Definitive Senior Note Certificate for a beneficial interest
in a
Global Senior Note.
26
(b) If
any
Global Senior Note is to be exchanged for other Senior Notes or canceled in
part, or if another Senior Note is to be exchanged in whole or in part for
a
beneficial interest in any Global Senior Note, then either (i) such Global
Senior Note shall be so surrendered for exchange or cancellation as provided
in
this Article
III
or (ii)
the principal amount thereof shall be reduced or increased by an amount equal
to
(x) the portion thereof to be so exchanged or canceled or (y) the principal
amount of such other Senior Note to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on
the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Senior Note by the Depositary,
accompanied by registration instructions, the Company shall execute and, upon
receipt of a Company Order, the Trustee shall authenticate and deliver any
Senior Notes issuable in exchange for such Global Senior Note (or any portion
thereof) in accordance with the instructions of the Depositary. The Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(c) Every
Senior Note authenticated and delivered upon registration of transfer of, or
in
exchange for or in lieu of, a Global Senior Note or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Senior Note,
unless such Senior Note is registered in the name of a Person other than the
Depositary for such Global Senior Note or a nominee thereof.
(d) The
Depositary or its nominee, as the registered owner of a Global Senior Note,
shall be the Holder of such Global Senior Note for all purposes under this
Indenture and the Senior Notes, and owners of beneficial interests in a Global
Senior Note shall hold such interests pursuant to the Applicable Depositary
Procedures. Accordingly, any such owner’s beneficial interest in a Global Senior
Note shall be shown only on, and the transfer of such interest shall be effected
only through, records maintained by the Depositary or its nominee or its
Depositary Participants. The Securities Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this Indenture relating
to a Global Senior Note (including the payment of principal and interest thereon
and the giving of instructions or directions by owners of beneficial interests
therein and the giving of notices) as the sole Holder of the Senior Note and
shall have no obligations to the owners of beneficial interests therein. Neither
the Trustee nor the Securities Registrar shall have any liability in respect
of
any transfers effected by the Depositary.
27
(e) The
rights of owners of beneficial interests in a Global Senior Note shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such owners and the Depositary and/or its
Depositary Participants.
(f) No
holder
of any beneficial interest in any Global Senior Note held on its behalf by
a
Depositary shall have any rights under this Indenture with respect to such
Global Senior Note, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Senior Note for all purposes whatsoever. None of the Company, the Trustee nor
any agent of the Company or the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Senior Note or maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by a
Depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominee) as Holder of any Senior
Note.
Section
3.5 Registration,
Transfer and Exchange Generally.
(a) The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities
Register”)
in
which the registrar and transfer agent with respect to the Senior Notes (the
“Securities
Registrar”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Senior Notes and of transfers and exchanges of Senior Notes.
The Trustee shall at all times also be the Securities Registrar. The provisions
of Article
VI
shall
apply to the Trustee in its role as Securities Registrar.
(b) Subject
to compliance with Section
2.2(b),
upon
surrender for registration of transfer of any Senior Note at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee, upon receipt of a Company Order, shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Senior Notes of any authorized denominations of like tenor and aggregate
principal amount.
(c) At
the
option of the Holder, Senior Notes may be exchanged for other Senior Notes
of
any authorized denominations, of like tenor and aggregate principal amount,
upon
surrender of the Senior Notes to be exchanged at such office or agency. Whenever
any Senior Notes are so surrendered for exchange, the Company shall execute,
and
the Trustee shall, upon receipt of a Company Order, authenticate and deliver,
the Senior Notes that the Holder making the exchange is entitled to
receive.
(d) All
Senior Notes issued upon any transfer or exchange of Senior Notes shall be
the
valid obligations of the Company, evidencing the same debt, and entitled to
the
same benefits under this Indenture, as the Senior Notes surrendered upon such
transfer or exchange.
(e) Every
Senior Note presented or surrendered for transfer or exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by
the
Holder thereof or such Holder’s attorney duly authorized in
writing.
28
(f) No
service charge shall be made to a Holder for any transfer or exchange of Senior
Notes, but the Company may require payment of a sum sufficient to cover any
tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Senior Notes.
(g) Neither
the Company nor the Trustee shall be required pursuant to the provisions of
this
Section
3.5:
(i) to
issue, register the transfer of or exchange any Senior Note during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of Senior Notes pursuant to Article
XI
and
ending at the close of business on the day of mailing of the notice of
redemption or (ii) to register the transfer of or exchange any Senior Note
so
selected for redemption in whole or in part, except, in the case of any such
Senior Note to be redeemed in part, any portion thereof not to be
redeemed.
(h) The
Company shall designate an office or offices or agency or agencies where Senior
Notes may be surrendered for registration or transfer or exchange. The Company
initially designates the Corporate Trust Office as its office and agency for
such purposes. The Company shall give prompt written notice to the Trustee
and
to the Holders of any change in the location of any such office or
agency.
(i) The
Senior Notes may only be transferred to a “Qualified Purchaser” as such term is
defined in Section 2(a)(51) of the Investment Company Act.
(j) Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of
or
any exemptions from the Securities Act, applicable state securities laws or
the
applicable laws of any other jurisdiction, ERISA, the Code or the Investment
Company Act; provided,
that if
a certificate is specifically required by the express terms of this Section
3.5
to be
delivered to the Trustee or the Securities Registrar by a Holder or transferee
of a Senior Note, the Trustee and the Securities Registrar shall be under a
duty
to receive and examine the same to determine whether or not the certificate
substantially conforms on its face to the requirements of this Indenture and
shall promptly notify the party delivering the same if such certificate does
not
comply with such terms.
Section
3.6 Mutilated,
Destroyed, Lost and Stolen Senior Notes.
(a) If
any
mutilated Senior Note is surrendered to the Trustee together with such security
or indemnity as may be required by the Company or the Trustee to save each
of
them harmless, the Company shall execute and upon receipt of a Company Order
the
Trustee shallauthenticate and deliver in exchange therefor a new Senior Note
of
like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
(b) If
there
shall be delivered to the Trustee (i) evidence to its satisfaction of the
destruction, loss or theft of any Senior Note and (ii) such security or
indemnity as may be required by it to save each of the Company and the Trustee
harmless, then, in the absence of notice to the Company or the Trustee that
such
Senior Note has been acquired by a bona
fide
purchaser, the Company shall execute and, upon receipt of a Company Order,
the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or
stolen Senior Note, a new Senior Note of like tenor and aggregate principal
amount as such destroyed, lost or stolen Senior Note, and bearing a number
not
contemporaneously outstanding.
29
(c) If
any
such mutilated, destroyed, lost or stolen Senior Note has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
new Senior Note, pay such Senior Note.
(d) Upon
the
issuance of any new Senior Note under this Section
3.6,
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 Trustee) connected
therewith.
(e) Every
new
Senior Note issued pursuant to this Section
3.6
in lieu
of any mutilated, destroyed, lost or stolen Senior Note shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Senior Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Senior Notes duly
issued hereunder.
(f) The
provisions of this Section
3.6
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Senior Notes.
Section
3.7 Persons
Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat
the
Person in whose name any Senior Note is registered as the owner of such Senior
Note for the purpose of receiving payment of principal of and any interest
on
such Senior Note and for all other purposes whatsoever, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section
3.8 Cancellation.
All
Senior Notes surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Senior Notes and Senior Notes surrendered directly to the Trustee
for any such purpose shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancellation any Senior Notes previously
authenticated and delivered hereunder that the Company may have acquired in
any
manner whatsoever, and all Senior Notes so delivered shall be promptly canceled
by the Trustee. No Senior Notes shall be authenticated in lieu of or in exchange
for any Senior Notes canceled as provided in this Section
3.8,
except
as expressly permitted by this Indenture. All canceled Senior Notes shall be
retained or disposed of by the Trustee in accordance with its customary
practices and the Trustee shall deliver to the Company a certificate of such
disposition.
30
Section
3.9 Agreed
Tax Treatment.
Each
Senior Note issued hereunder shall provide that the Company and, by its
acceptance or acquisition of a Senior Note or a beneficial interest therein,
the
Holder of, and any Person that acquires a direct or indirect beneficial interest
in, such Senior Note, intend and agree to treat such Senior Note as indebtedness
of the Company for United States federal, state and local tax purposes. The
provisions of this Indenture shall be interpreted to further this intention
and
agreement of the parties.
Section
3.10 CUSIP
Numbers.
The
Company in issuing the Senior Notes may use “CUSIP” numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of
redemption and other similar or related materials as a convenience to Holders;
provided,
that
any such notice or other materials may state that no representation is made
as
to the correctness of such numbers either as printed on the Senior Notes or
as
contained in any notice of redemption or other materials and that reliance
may
be placed only on the other identification numbers printed on the Senior Notes,
and any such redemption shall not be affected by any defect in or omission
of
such numbers.
ARTICLE
IV
SATISFACTION
AND DISCHARGE
Section
4.1 Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Senior Notes
herein expressly provided for and as otherwise provided in this Section
4.1)
and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either
(i)
all
Senior Notes theretofore authenticated and delivered (other than (A) Senior
Notes that have been mutilated, destroyed, lost or stolen and that have been
replaced or paid as provided in Section
3.6
and (B)
Senior Notes for whose payment money has theretofore been deposited in trust
or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust as provided in Section
10.2)
have
been delivered to the Trustee for cancellation; or
(ii)
all
such Senior Notes not theretofore delivered to the Trustee for
cancellation
(A) have
become due and payable; or
(B) will
become due and payable at their Stated Maturity within one (1) year of the
date
of deposit; or
31
(C) are
to be
called for redemption within one (1) year under arrangements satisfactory to
the
Trustee for the giving of notice of redemption by the Trustee in the name,
and
at the expense, of the Company;
and
the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or
caused to be deposited with the Trustee as trust funds in trust for such purpose
(x) an amount in the currency or currencies in which the Senior Notes are
payable, (y) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount or
(z) a
combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on such Senior Notes not theretofore delivered to the Trustee
for
cancellation, for principal, premium, if any, and interest (including any
Additional Interest) to the date of such deposit (in the case of Senior Notes
that have become due and payable) or to the Stated Maturity (or any date of
principal repayment upon early maturity) or Redemption Date, as the case may
be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section
6.6,
the
obligations of the Company to any Authenticating Agent under Section
6.11
and, if
money shall have been deposited with the Trustee pursuant to subclause (a)(ii)
of this Section
4.1,
the
obligations of the Trustee under Section
4.2
and
Section
10.2(e)
shall
survive.
Section
4.2 Application
of Trust Money.
Subject
to the provisions of Section
10.2(e),
all
money deposited with the Trustee pursuant to Section
4.1
shall be
held in trust and applied by the Trustee, in accordance with the provisions
of
the Senior Notes and this Indenture, to the payment in accordance with
Section
3.1,
either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of
the principal and any premium and interest (including any Additional Interest)
for the payment of which such money or obligations have been deposited with
or
received by the Trustee.
32
ARTICLE
V
REMEDIES
Section
5.1 Events
of Default.
“Event
of Default”
means,
wherever used herein with respect to the Senior Notes, any one of the following
events (whatever the reason for such Event of Default and whether it shall
be
voluntary or involuntary or be effected by operation of law or pursuant to
any
judgment, decree or order of any court or any order, rule or regulation of
any
administrative or governmental body):
(a) default
in the payment of any interest upon any Senior Note, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of
such default for a period of thirty (30) days; or
(b) default
in the payment of the principal of or any premium on any Senior Note at its
Maturity; or
(c) default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture or the Purchase Agreement and continuance of such default or
breach for a period of thirty (30) days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least twenty-five percent (25%) in
aggregate principal amount of the Outstanding Senior Notes a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder (a “Notice
of Default”);
or
(d) the
entry
by a court having jurisdiction in the premises of a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding
up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of sixty (60) consecutive days; or
(e) the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Company of a petition
or
answer or consent seeking reorganization or relief under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors,
or
the admission by it in writing of its inability to pay its debts generally
as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action.
33
Section
5.2 Acceleration
of Maturity; Rescission and Annulment.
(a) If
an
Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Outstanding Senior Notes may declare the principal
amount of all the Senior Notes to be immediately due and payable, by a notice
in
writing to the Company (and to the Trustee if given by Holders.
(b) At
any
time after such a declaration of acceleration with respect to Senior Notes
has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Trustee as hereinafter provided in this Article
V,
the
Holders of a majority in aggregate principal amount of the Outstanding Senior
Notes, by written notice to the Trustee, may rescind and annul such declaration
and its consequences if:
(i)
the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all
overdue installments of interest on all Senior Notes;
(B) any
accrued Additional Interest on all Senior Notes;
(C) the
principal of and any premium on any Senior Notes that have become due otherwise
than by such declaration of acceleration and interest (including any Additional
Interest) thereon at the rate borne by the Senior Notes; and
(D) all
sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel;
and
(ii)
all
Events of Default with respect to Senior Notes, other than the non-payment
of
the principal of Senior Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section
5.13;
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.3 Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that if:
(i)
default is made in the payment of any installment of interest (including any
Additional Interest) on any Senior Note when such interest becomes due and
payable and such default continues for a period of thirty (30) days;
or
(ii)
default is made in the payment of the principal of and any premium on any Senior
Note at the Maturity thereof;
the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit
of
the Holders of such Senior Notes, the whole amount then due and payable on
such
Senior Notes for principal and any premium and interest (including any
Additional Interest) and, in addition thereto, all amounts owing the Trustee
under Section
6.6.
34
(b) If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Senior Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Senior Notes, wherever
situated.
(c) If
an
Event of Default with respect to Senior Notes occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and
the
rights of the Holders of Senior Notes by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section
5.4 Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company (or any other obligor upon the Senior Notes), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due
it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section
6.6.
Section
5.5 Trustee
May Enforce Claim Without Possession of Senior Notes.
All
rights of action and claims under this Indenture or the Senior Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Senior Notes or the production thereof in any proceeding relating thereto,
and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall after
provision for the payment of all the amounts owing the Trustee, any predecessor
Trustee and other Persons under Section
6.6,
be for
the ratable benefit of the Holders of the Senior Notes in respect of which
such
judgment has been recovered.
Section
5.6 Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the Senior
Notes pursuant to this Article
V
shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal
or
any premium or interest (including any Additional Interest), upon presentation
of the Senior Notes and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
35
FIRST:
To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section
6.6;
SECOND:
To the payment of the amounts then due and unpaid upon the Senior Notes for
principal and any premium and interest (including any Additional Interest)
in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Senior Notes for principal and any premium and interest
(including any Additional Interest), respectively; and
THIRD:
The balance, if any, to the Person or Persons entitled thereto.
Section
5.7 Limitation
on Suits.
Subject
to Section
5.8,
no
Holder of any Senior Notes shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment
of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Senior Notes;
(b) the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Senior Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and
(e) no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Senior Notes;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing itself of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Senior Notes, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
such
Holders.
36
Section
5.8 Unconditional
Right of Holders to Receive Principal, Premium, if any, and
Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Senior Note shall
have
the right, which is absolute and unconditional, to receive payment of the
principal of and premium, if any, on such Senior Note at its Maturity and
payment of interest (including any Additional Interest) on such Senior Note
when
due and payable and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such
Holder.
Section
5.9 Restoration
of Rights and Remedies.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
such Holder, then and in every such case the Company, the Trustee and such
Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
Section
5.10 Rights
and Remedies Cumulative.
Except
as
otherwise provided in Section
3.6(f),
no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to
every other right and remedy given hereunder or now or hereafter existing at
law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section
5.11 Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee or any Holder of any Senior Notes to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article
V
or by
law to the Trustee or to the Holders may be exercised from time to time, and
as
often as may be deemed expedient, by the Trustee or the Holders, as the case
may
be.
Section
5.12 Control
by Holders.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Senior Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
or
exercising any trust or power conferred on the Trustee; provided,
that:
(a) such
direction shall not be in conflict with any rule of law or with this
Indenture;
37
(b) the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction; and
(c) subject
to the provisions of Section
6.2,
the
Trustee shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith, reasonably
determine that the proceeding so directed would be unjustly prejudicial to
the
Holders not joining in any such direction or would involve the Trustee in
personal liability.
Section
5.13 Waiver
of Past Defaults.
(a) The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Senior Notes may waive any past Event of Default hereunder and
its
consequences except an Event of Default:
(i)
in
the payment of the principal of, premium, if any, or interest (including any
Additional Interest) on any Outstanding Senior Note (unless such Event of
Default has been cured and the Company has paid to or deposited with the Trustee
a sum sufficient to pay all installments of interest (including any Additional
Interest) due and past due and all principal of and premium, if any, on all
Senior Notes due otherwise than by acceleration); or
(ii)
in
respect of a covenant or provision hereof that under Article
IX
cannot
be modified or amended without the consent of each Holder of any Outstanding
Senior Note.
(b) Any
such
waiver shall be deemed to be on behalf of the Holders of all the Outstanding
Senior Notes.
(c) Upon
any
such waiver, such Event of Default shall cease to exist and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event
of
Default or impair any right consequent thereon.
Section
5.14 Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Senior Note by his
or
her acceptance thereof shall be deemed to have agreed, that any court may in
its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided,
however,
that
the provisions of this Section
5.14
shall
not apply to any suit instituted by the Trustee, to any suit instituted by
any
Holder, or group of Holders, holding in the aggregate more than ten percent
(10%) in aggregate principal amount of the Outstanding Senior Notes, or to
any
suit instituted by any Holder for the enforcement of the payment of the
principal of or premium, if any, on the Senior Note after the Stated Maturity
or
any interest (including any Additional Interest) on any Senior Note after it
is
due and payable.
38
Section
5.15 Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
ARTICLE
VI
THE
TRUSTEE
Section
6.1 Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the Senior Notes.
The
Trustee shall be a corporation or national banking association organized and
doing business under the laws of the United States or of any state thereof,
authorized to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and having an office within the United States. If
such entity publishes reports of condition at least annually, pursuant to law
or
to the requirements of such supervising or examining authority, then, for the
purposes of this Section
6.1,
the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section
6.1,
it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article
VI.
Section
6.2 Certain
Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default:
(i)
the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii)
in
the absence of bad faith on its part, the Trustee may conclusively rely, as
to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; provided,
that in
the case of any such certificates or opinions that by any provision hereof
are
specifically required to be furnished to the Trustee, the Trustee shall be
under
a duty to examine the same to determine whether or not they substantially
conform on their face to the requirements of this Indenture.
(b) If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders
of
at least a majority in aggregate principal amount of the Outstanding Senior
Notes, exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person’s
own affairs.
39
(c) Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section
6.2.
To the
extent that, at law or in equity, the Trustee has duties and liabilities
relating to the Holders, the Trustee shall not be liable to any Holder for
the
Trustee’s good faith reliance on the provisions of this Indenture. The
provisions of this Indenture, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in equity, are agreed
by
the Company and the Holders to replace such other duties and liabilities of
the
Trustee.
(d) No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act
or
willful misconduct, except that:
(i)
the
Trustee shall not be liable for any error or judgment made in good faith by
an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(ii)
the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
at
least a majority in aggregate principal amount of the Outstanding Senior Notes
(or such other percentage as may be required by the terms hereof) relating
to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee under this Indenture; and
(iii)
the
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company and money
held
by the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law.
Section
6.3 Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived; provided,
that
except in the case of a default in the payment of the principal of or any
premium or interest on any Senior Notes, the Trustee shall be fully protected
in
withholding the notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the
Trustee in good faith determines that withholding the notice is in the interest
of Holders; and provided,
further,
that in
the case of any default of the character specified in Section
5.1(c),
no such
notice to Holders shall be given until at least thirty (30) days after the
occurrence thereof. For the purpose of this Section
6.3,
the
term “default”
means
any event which is, or after notice or lapse of time or both would become,
an
Event of Default.
40
Section
6.4 Certain
Rights of Trustee.
Subject
to the provisions of Section
6.2:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other
paper
or document reasonably believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b) if
(i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application
of
any provision of this Indenture, then, except as to any matter as to which
the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company’s written
instruction as to the course of action to be taken and the Trustee shall take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided,
that if
the Trustee does not receive such instructions from the Company within ten
(10)
Business Days after it has delivered such notice or such reasonably shorter
period of time set forth in such notice the Trustee may, but shall be under
no
duty to, take such action, or refrain from taking such action, as the Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Trustee shall have no liability except for its own negligence, bad faith
or
willful misconduct;
(c) any
request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(d) the
Trustee may consult with counsel (which counsel may be counsel to the Trustee,
the Company or any of its Affiliates, and may include any of its employees)
and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the Trustee;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, indenture, note or other
paper
or document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled
to
examine the books, records and premises of the Company, personally or by agent
or attorney;
41
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(h) whenever
in the administration of this Indenture the Trustee shall deem it desirable
to
receive instructions with respect to enforcing any remedy or right or taking
any
other action with respect to enforcing any remedy or right hereunder, the
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same aggregate principal amount of
Outstanding Senior Notes as would be entitled to direct the Trustee under this
Indenture in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such instructions
are
received and (iii) shall be protected in acting in accordance with such
instructions;
(i) except
as
otherwise expressly provided by this Indenture, the Trustee shall not be under
any obligation to take any action that is discretionary under the provisions
of
this Indenture;
(j) without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy, insolvency or other proceeding referred to in clauses (d) or (e)
of
the definition of Event of Default specified in Section
5.1,
such
expenses (including legal fees and expenses of its agents and counsel) and
the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy laws or law relating to creditors rights
generally;
(k) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company;
(l) the
Trustee shall not be charged with knowledge of any Event of Default unless
either (i) a Responsible Officer of the Trustee shall have actual knowledge
or
(ii) the Trustee shall have received written notice thereof from the Company
or
a Holder; and
(m) in
the
event that the Trustee is also acting as Paying Agent, Authenticating Agent
or
Securities Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article
VI
shall
also be afforded such Paying Agent, Authenticating Agent or Securities
Registrar.
42
Section
6.5 May
Hold Senior Notes.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar
or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Senior Notes and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
Section
6.6 Compensation;
Reimbursement; Indemnity.
(a) The
Company agrees:
(i)
to
pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder in such amounts as the Company and the Trustee shall
agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(ii)
to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith
or
willful misconduct; and
(iii)
to
the fullest extent permitted by applicable law, to indemnify the Trustee
(including in its individual capacity) and its Affiliates, and their officers,
directors, shareholders, agents, representatives and employees for, and to
hold
them harmless against, any loss, damage, liability, tax (other than income,
franchise or other taxes imposed on amounts paid pursuant to clause (i) or
(ii)
of this Section
6.6(a)),
penalty, expense or claim of any kind or nature whatsoever incurred without
negligence, bad faith or willful misconduct on its part arising out of or in
connection with the acceptance or administration of this trust or the
performance of the Trustee’s duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
(b) To
secure
the Company’s payment obligations in this Section
6.6,
the
Company hereby grants and pledges to the Trustee and the Trustee shall have
a
lien prior to the Senior Notes on all money or property held or collected by
the
Trustee, other than money or property held in trust to pay principal and
interest on particular Senior Notes. Such lien shall survive the satisfaction
and discharge of this Indenture or the resignation or removal of the
Trustee.
(c) The
obligations of the Company under this Section
6.6
shall
survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d) In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
43
(e) In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
Section
6.7 Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article
VI
shall
become effective until the acceptance of appointment by the successor Trustee
under Section
6.8.
(b) The
Trustee may resign at any time by giving written notice thereof to the
Company.
(c) Unless
an
Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event of Default
shall have occurred and be continuing, the Trustee may be removed by Act of
the
Holders of a majority in aggregate principal amount of the Outstanding Senior
Notes, delivered to the Trustee and to the Company.
(d) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when no Event
of
Default shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of Section
6.8.
If the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when an Event
of
Default shall have occurred and be continuing, the Holders, by Act of the
Holders of a majority in aggregate principal amount of the Outstanding Senior
Notes, shall promptly appoint a successor Trustee, and such successor Trustee
and the retiring Trustee shall comply with the applicable requirements of
Section
6.8.
If no
successor Trustee shall have been so appointed by the Company or the Holders
and
accepted appointment within sixty (60) days after the giving of a notice of
resignation by the Trustee or the removal of the Trustee in the manner required
by Section
6.8,
any
Holder who has been a bona
fide
Holder
of a Senior Note for at least six (6) months may, on behalf of such Holder
and
all others similarly situated, and any resigning Trustee may, at the expense
of
the Company, petition any court of competent jurisdiction for the appointment
of
a successor Trustee.
(e) The
Company shall give notice to all Holders in the manner provided in Section
1.6
of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Section
6.8 Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
provided,
that on
the request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
44
(b) Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a)
of
this Section
6.8.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article
VI.
Section
6.9 Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto;
provided,
that
such Person shall be otherwise qualified and eligible under this Article
VI.
In case
any Senior Notes shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation
or
as otherwise provided above in this Section
6.9
to such
authenticating Trustee may adopt such authentication and deliver the Senior
Notes so authenticated, and in case any Senior Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Senior Notes
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the
full
force which it is provided anywhere in the Senior Notes or in this Indenture
that the certificate of the Trustee shall have.
Section
6.10 Not
Responsible for Recitals or Issuance of Senior Notes.
The
recitals contained herein and in the Senior Notes, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Senior Notes. Neither the Trustee
nor
any Authenticating Agent shall be accountable for the use or application by
the
Company of the Senior Notes or the proceeds thereof.
45
Section
6.11 Appointment
of Authenticating Agent.
(a) The
Trustee may appoint an Authenticating Agent or Agents with respect to the Senior
Notes, which shall be authorized to act on behalf of the Trustee to authenticate
Senior Notes issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section
3.6,
and
Senior Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Senior Notes by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be an entity organized and doing business under the laws of the United
States of America, or of any State or Territory thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having
a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually pursuant to law or to
the
requirements of said supervising or examining authority, then for the purposes
of this Section
6.11
the
combined capital and surplus of such Authenticating Agent shall be deemed to
be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease
to be
eligible in accordance with the provisions of this Section
6.11,
such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section
6.11.
(b) Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder; provided,
that
such Person shall be otherwise eligible under this Section
6.11,
without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
(c) An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section
6.11,
the
Trustee may appoint a successor Authenticating Agent eligible under the
provisions of this Section
6.11,
which
shall be acceptable to the Company, and shall give notice of such appointment
to
all Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent.
(d) The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section
6.11
in such
amounts as the Company and the Authenticating Agent shall agree from time to
time.
(e) If
an
appointment of an Authenticating Agent is made pursuant to this Section
6.11,
the
Senior Notes may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following
form:
46
This
is
one of the Senior Notes referred to in the within mentioned Indenture.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.,
not
in its individual capacity, but solely as Trustee
|
|
|
By:
___________________________________
Authenticating
Agent
|
|
|
By:
___________________________________
Authorized
Signatory
|
|
ARTICLE
VII
HOLDER’S
LISTS AND REPORTS BY COMPANY
Section
7.1 Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually,
on or before June 30 and December 31 of each year, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the Holders as
of
a date not more than fifteen (15) days prior to the delivery thereof;
and
(b) at
such
other times as the Trustee may request in writing, within thirty (30) days
after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than fifteen (15) days prior to the time such
list
is furnished;
in
each
case to the extent such information is in the possession or control of the
Company and has not otherwise been received by the Trustee in its capacity
as
Securities Registrar.
Section
7.2 Preservation
of Information, Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section
7.1
and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section
7.1
upon
receipt of a new list so furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Senior Notes, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c) Every
Holder of Senior Notes, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
47
Section
7.3 Reports
by Company.
(a) The
Company shall furnish to the Holders and to prospective purchasers of Senior
Notes, upon their request, the information required to be furnished pursuant
to
Rule 144A(d)(4) under the Securities Act. The delivery requirement set forth
in
the preceding sentence may be satisfied by compliance with Section
7.3(b).
(b) The
Company shall furnish to each of (i) the Trustee, (ii) the Holders and to
subsequent holders of Senior Notes, (iii) the Purchaser, (iv) any beneficial
owner of the Senior Notes reasonably identified to the Company (which
identification may be made either by such beneficial owner or by the Purchaser)
and (v) any designee of (i), (ii), (iii) or (iv) above, a duly completed and
executed officer’s financial certificate substantially and substantively in the
form attached hereto as Exhibit
A,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Company not later than
forty-five (45) days after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Company and not later than ninety (90)
days
after the end of each fiscal year of the Company, to the extent such financial
statements are not publicly available by such dates via ▇▇▇▇▇.
(c) If
the
Company intends to file its annual and quarterly information with the Securities
and Exchange Commission (the “Commission”)
in
electronic form pursuant to Regulation S-T of the Commission using the
Commission’s Electronic Data Gathering, Analysis and Retrieval (“▇▇▇▇▇”)
system, the Company shall notify the Trustee in the manner prescribed herein
of
each such annual and quarterly filing. The Trustee is hereby authorized and
directed to access the ▇▇▇▇▇ system for purposes of retrieving the financial
information so filed. Compliance with the foregoing shall constitute delivery
by
the Company of its financial statements to the Trustee in compliance with the
provisions of Section 314(a) of the Trust Indenture Act, if applicable. The
Trustee shall have no duty to search for or obtain any electronic or other
filings that the Company makes with the Commission, regardless of whether such
filings are periodic, supplemental or otherwise. Delivery of reports,
information and documents to the Trustee pursuant to this Section
7.3(c)
shall be
solely for purposes of compliance with this Section
7.3(c)
and, if
applicable, with Section 314(a) of the Trust Indenture Act, and shall not
relieve the Company of the requirement to deliver the certificate referred
to in
Section
7.3(b).
The
Trustee’s receipt of such reports, information and documents shall not
constitute notice to it of the content thereof or any matter determinable from
the content thereof, including the Company’s compliance with any of its
covenants hereunder, as to which the Trustee is entitled to rely upon Officers’
Certificates.
(d) The
Trustee shall deliver, following its receipt thereof, a copy of all reports,
certificates and information which it is entitled to receive under each
of
the
Operative Documents, to (i) each Purchaser and (ii) a designee of (i) above,
as
identified in writing to the Trustee.
48
ARTICLE
VIII
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
8.1 Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Senior Notes and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental indenture, comply with this Article
VIII
and that
all conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers’ Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this Section
8.1.
Section
8.2 Successor
Company Substituted.
(a) Upon
any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section
8.1
and the
execution and delivery to the Trustee of the supplemental indenture described
in
Section
8.1(a),
the
successor entity formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed
to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance or
transfer, following the execution and delivery of such supplemental indenture,
the Company shall be discharged from all obligations and covenants under the
Indenture and the Senior Notes.
49
(b) Such
successor Person to the Company may cause to be executed, and may issue either
in its own name or in the name of the Company, any or all of the Senior Notes
issuable hereunder that theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Senior Notes that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Senior Notes
that such successor Person thereafter shall cause to be executed and delivered
to the Trustee on its behalf. All the Senior Notes so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Senior
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture.
(c) In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Senior Notes thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.1 Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to
evidence the succession of another Person to the Company, and the assumption
by
any such successor of the covenants of the Company herein and in the Senior
Notes; or
(b) to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee; or
(c) to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture; provided,
that
such action pursuant to this clause (c) shall not be effected unless the Company
has delivered a written notice of such amendment to the Holders at least twenty
(20) days prior to the effective date of such amendment; provided,
further,
that
such action pursuant to this clause (c) shall not adversely affect in any
material respect the interests of any Holders; or
(d) to
comply
with the rules and regulations of any securities exchange or automated quotation
system on which any of the Senior Notes may be listed, traded or quoted;
or
(e) to
add to
the covenants, restrictions or obligations of the Company or to add to the
Events of Default; provided,
that
such action pursuant to this clause (e) shall not adversely affect in any
material respect the interests of any Holders; or
50
(f) to
modify, eliminate or add to any provisions of the Indenture or the Senior Notes
to such extent as shall be necessary to ensure that the Senior Notes are treated
as indebtedness of the Company for United States federal income tax purposes;
provided,
that
such action pursuant to this clause (f) shall not adversely affect in any
material respect the interests of any Holders.
Section
9.2 Supplemental
Indentures with Consent of Holders.
(a) Subject
to Section
9.1,
with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Senior Notes, by Act of said Holders delivered to
the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Senior Notes under this Indenture; provided,
that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Senior Note:
(i)
except as set forth in Section
3.1(f),
change
the Stated Maturity of the principal or any premium of any Senior Note or change
the date of payment of any installment of interest (including any Additional
Interest) on any Senior Note, or reduce the principal amount thereof or the
rate
of interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Senior Note
or
interest thereon is payable, or restrict or impair the right to institute suit
for the enforcement of any such payment on or after such date; or
(ii)
reduce the percentage in aggregate principal amount of the Outstanding Senior
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with any provision of this Indenture or of defaults hereunder and
their consequences provided for in this Indenture; or
(iii)
modify any of the provisions of this Section
9.2,
Section
5.13
or
Section
10.6,
except
to increase any percentage in aggregate principal amount of the Outstanding
Senior Notes, the consent of whose Holders is required for any reason, or to
provide that certain other provisions of this Indenture cannot be modified
or
waived without the consent of the Holder of each Senior Note.
(b) It
shall
not be necessary for any Act of Holders under this Section
9.2
to
approve the particular form of any proposed supplemental indenture, but it
shall
be sufficient if such Act shall approve the substance thereof.
Section
9.3 Execution
of Supplemental Indentures.
In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article
IX
or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall
be entitled to receive, and shall be fully protected in conclusively relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent herein provided for relating to
such action have been complied with. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the Trustee’s own
rights, duties, indemnities or immunities under this Indenture or otherwise.
Copies of the final form of each supplemental indenture shall be delivered
by
the Trustee at the expense of the Company to each Holder promptly after the
execution thereof.
51
Section
9.4 Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article
IX,
this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section
9.5 Reference
in Senior Notes to Supplemental Indentures.
Senior
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article
IX
may, and
shall if required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Senior Notes so modified as to conform, in
the
opinion of the Company, to any such supplemental indenture may be prepared
and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Senior Notes.
ARTICLE
X
COVENANTS
Section
10.1 Payment
of Principal, Premium, if any, and Interest.
The
Company covenants and agrees for the benefit of the Holders of the Senior Notes
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Senior Notes in accordance
with the terms of the Senior Notes and this Indenture.
Section
10.2 Money
for Senior Note Payments to be Held in Trust.
(a) If
the
Company shall at any time act as its own Paying Agent with respect to the Senior
Notes, it will, on or before each due date of the principal of and any premium
or interest (including any Additional Interest) on the Senior Notes, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee in writing of its failure so to act.
(b) Whenever
the Company shall have one or more Paying Agents, it will, prior to 10:00 A.M.,
New York City time, on each due date of the principal of and any premium or
interest (including any Additional Interest) on any Senior Notes, deposit with
a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure so to
act.
52
(c) The
Company will cause each Paying Agent for the Senior Notes other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section
10.2,
that
such Paying Agent will (i) comply with the provisions of this Indenture and
the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the Senior
Notes) in the making of any payment in respect of the Senior Notes, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held
in
trust by such Paying Agent for payment in respect of the Senior
Notes.
(d) The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(e) Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company
in
trust for the payment of the principal of and any premium or interest (including
any Additional Interest) on any Senior Note and remaining unclaimed for two
(2)
years after such principal and any premium or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request
to
the Company, or (if then held by the Company) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be discharged from such trust; and the Holder of such Senior Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will
be
repaid to the Company.
Section
10.3 Statement
as to Compliance.
The
Company shall deliver to the Trustee, within one hundred twenty (120) days
after
the end of each fiscal year of the Company ending after the date hereof, an
Officers’ Certificate (substantially in the form attached hereto as Exhibit
B)
covering the preceding calendar year, stating whether or not to the knowledge
of
the signers thereof the Company is in default in the performance or observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder), and if
the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
53
Section
10.4 [Reserved].
Section
10.5 Additional
Covenants.
(a) The
Company covenants and agrees with each Holder of Senior Notes that if an Event
of Default shall have occurred and be continuing, it shall not (i) declare
or
pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to, any Equity Interests of the Company, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any preferred Equity
Interests of such Subsidiaries or other Equity Interests entitling the holders
thereof to a stated rate of return (for the avoidance of doubt, whether such
preferred Equity Interests are perpetual or otherwise), or (iii) make any
payment of principal of or any interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari
passu
in all
respects with or junior in interest to the Senior Notes (other than (A)
repurchases, redemptions or other acquisitions of Equity Interests of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or Equity Interests purchase plan or in connection with the issuance of Equity
Interests in the Company (or securities convertible into or exercisable for
such
Equity Interests) as consideration in an acquisition transaction entered into
prior to the applicable Event of Default, (B) as a result of an exchange,
conversion reclassification or combination of any class or series of the
Company’s Equity Interests (or any Equity Interests in a Subsidiary of the
Company) for any class or series of the Company’s Equity Interests or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s Equity Interests, (C) the purchase of fractional interests in the
Equity Interests of the Company pursuant to the conversion or exchange
provisions of such Equity Interests or the security being converted or
exchanged, (D) any declaration of a dividend in connection with any Rights
Plan,
the issuance of rights, Equity Interests or other property under any Rights
Plan
or the redemption or repurchase of rights pursuant thereto or (E) any dividend
in the form of Equity Interests, warrants, options or other rights where the
dividend Equity Interest or the Equity Interest issuable upon exercise of such
warrants, options or other rights is the same Equity Interest as that on which
the dividend is being paid or ranks pari
passu
with or
junior to such Equity Interest).
(b) The
Company shall notify in writing, within ten (10) Business Days after the
occurrence thereof, the Trustee and each Holder of the occurrence of a Change
of
Control (the “Change
of Control Notice”).
Within thirty (30) days after the occurrence of a Change of Control, the Company
shall initiate a ratings affirmation process with the Ratings Agencies to
determine if a Ratings Downgrade has occurred. If such ratings affirmation
process is not initiated within such 30-day period, a Change of Control Event
shall be deemed to have occurred. Within five (5) Business Days after the
completion of such ratings affirmation process, the Company shall notify in
writing the Trustee and each Holder of the results of such ratings affirmation
process and whether a Ratings Downgrade has occurred (the “Change
of Control Event Notice”).
If
the Company and the Trustee shall have received, within thirty (30) days after
delivering the Holders the Change of Control Event Notice or the deemed
occurrence of a Change of Control Event, written notice from any Holder of
its
election to cause the Defeasance or redemption, as applicable, of the Senior
Notes as provided in this Section
10.5(b)
(the
“Change
of Control Election”),
then
the Company shall cause Article
XII
to be
applied to the Electing Senior Notes.
54
(c) The
Company also agrees to use its reasonable best efforts to meet the requirements
to qualify, effective for the fiscal year ending December 31, 2005, and all
future fiscal years, as a real estate investment trust under the
Code.
(d) The
Company hereby covenants and agrees that at no time, without the prior written
consent of Holders of a majority in
aggregate principal amount of the Outstanding Senior Notes, will
the
Company issue any Debt (including all junior subordinated notes, trust preferred
securities or other similarly structured subordinate debt) which ranks
subordinate to the Senior Notes (the “Subordinate
Debt”)
if the
result thereof is that the sum of (A) the principal amount of the Subordinate
Debt proposed to be issued and (B) the outstanding principal amount of all
Subordinated Debt exceeds twenty-five (25%) of the sum of (i) Consolidated
Tangible Net Worth of the Company determined as of the end of the Company’s most
recent fiscal quarter, (ii) the outstanding principal amount of all Subordinate
Debt and (iii) the principal amount of the Subordinated Debt proposed to be
issued.
Section
10.6 Waiver
of Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in Section
10.5
if,
before or after the time for such compliance, the Holders of at least a majority
in aggregate principal amount of the Outstanding Senior Notes shall, by Act
of
such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
in
respect of any such covenant or condition shall remain in full force and effect.
Section
10.7 Treatment
of Senior Notes.
The
Company will treat the Senior Notes as indebtedness, and the amounts, other
than
payments of principal, payable in respect of the principal amount of such Senior
Notes as interest, for all U.S. federal income tax purposes. All payments in
respect of the Senior Notes will be made free and clear of U.S. withholding
tax
to any beneficial owner thereof that has provided an Internal Revenue Service
Form W-9 or W-8BEN or any other applicable form (or any substitute or successor
form) establishing a complete exemption from U.S. withholding tax.
55
ARTICLE
XI
REDEMPTION
OF SENIOR NOTES
Section
11.1 Optional
Redemption and Mandatory Redemption.
The
Company may, at its option, on a date no less than thirty (30) days and no
more
than sixty (60) days after receipt by the Trustee and the Holders of written
notice of its election pursuant to this Section
11.1,
redeem
the Senior Notes in whole at any time but not in part from time to time, at
a
redemption price equal to the Optional Redemption Price.
Section
11.2 [Reserved].
Section
11.3 Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Senior Notes, in whole or in part, shall
be evidenced by or pursuant to a Board Resolution. In case of any redemption
at
the election of the Company, the Company shall, not less than forty-five (45)
days and not more than seventy-five (75) days prior to the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of the Senior Notes
to be redeemed and provide the additional information required to be included
in
the notice or notices contemplated by Section
11.5.
In the
case of any redemption of Senior Notes, in whole or in part, (a) prior to the
expiration of any restriction on such redemption provided in this Indenture
or
the Senior Notes or (b) pursuant to an election of the Company which is subject
to a condition specified in this Indenture or the Senior Notes, the Company
shall furnish the Trustee with an Officers’ Certificate and an Opinion of
Counsel evidencing compliance with such restriction or condition.
Section
11.4 Selection
of Senior Notes to be Redeemed.
(a) If
less
than all the Senior Notes are to be redeemed, the particular Senior Notes to
be
redeemed shall be selected and redeemed on a pro
rata
basis
not more than sixty (60) days prior to the Redemption Date by the Trustee from
the Outstanding Senior Notes not previously called for redemption; provided,
that
the unredeemed portion of the principal amount of any Senior Note shall be
in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Senior Note.
(b) The
Trustee shall promptly notify the Company in writing of the Senior Notes
selected for redemption and, in the case of any Senior Notes selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Senior Notes shall relate, in the
case
of any Senior Note redeemed or to be redeemed only in part, to the portion
of
the principal amount of such Senior Note that has been or is to be
redeemed.
(c) The
provisions of paragraphs (a) and (b) of this Section
11.4
shall
not apply with respect to any redemption affecting only a single Senior Note,
whether such Senior Note is to be redeemed in whole or in part. In the case
of
any such redemption in part, the unredeemed portion of the principal amount
of
the Senior Note shall be in an authorized denomination (which shall not be
less
than the minimum authorized denomination) for such Senior Note.
56
Section
11.5 Notice
of Redemption.
(a) Notice
of
redemption shall be given not later than the thirtieth (30th) day, and not
earlier than the sixtieth (60th) day, prior to the Redemption Date to each
Holder of Senior Notes to be redeemed, in whole or in part.
(b) With
respect to Senior Notes to be redeemed, in whole or in part, each notice of
redemption shall state:
(i)
the
Redemption Date;
(ii)
the
Optional Redemption Price or, if the Optional Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate
of
the Optional Redemption Price, as calculated by the Company, together with
a
statement that it is an estimate and that the actual Optional Redemption Price
will be calculated on the fifth Business Day prior to the Redemption Date (and
if an estimate is provided, a further notice shall be sent of the actual
Optional Redemption Price on the date that such Optional Redemption Price is
calculated);
(iii)
if
less than all Outstanding Senior Notes are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts)
of
the amount of and particular Senior Notes to be redeemed;
(iv)
that
on the Redemption Date, the Redemption Price will become due and payable upon
each such Senior Note or portion thereof, and that any interest (including
any
Additional Interest) on such Senior Note or such portion, as the case may be,
shall cease to accrue on and after said date; and
(v)
the
place or places where such Senior Notes are to be surrendered for payment of
the
Optional Redemption Price.
(c) Notice
of
redemption of Senior Notes to be redeemed, in whole or in part, at the election
of the Company shall be given by the Company or, at the Company’s request, by
the Trustee in the name and at the expense of the Company and shall be
irrevocable. The notice if mailed in the manner provided above shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or
any
defect in the notice to the Holder of any Senior Note designated for redemption
as a whole or in part shall not affect the validity of the proceedings for
the
redemption of any other Senior Note.
Section
11.6 Deposit
of Optional Redemption Price.
Prior
to
10:00 A.M., New York City time, on the Redemption Date specified in the notice
of redemption given as provided in Section
11.5,
the
Company will deposit with the Trustee or with one or more Paying Agents (or
if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section
10.2)
an
amount of money sufficient to pay the Optional Redemption Price of, and any
accrued interest (including any Additional Interest) on, all the Senior Notes
(or portions thereof) that are to be redeemed on that date.
57
Section
11.7 Payment
of Senior Notes Called for Redemption.
(a) If
any
notice of redemption has been given as provided in Section
11.5,
the
Senior Notes or portion of Senior Notes with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Optional Redemption Price. On
presentation and surrender of such Senior Notes at a Place of Payment specified
in such notice, the Senior Notes or the specified portions thereof shall be
paid
and redeemed by the Company at the applicable Optional Redemption
Price.
(b) Upon
presentation of any Senior Note redeemed in part only, the Company shall execute
and the Trustee, upon receipt of a Company Order, shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a new Senior Note or
Senior Notes, of authorized denominations, in aggregate principal amount equal
to the unredeemed portion of the Senior Note so presented and having the same
Original Issue Date, Stated Maturity and terms.
(c) If
any
Senior Note called for redemption shall not be so paid upon surrender thereof
for redemption, the principal of and any premium on such Senior Note shall,
until paid, bear interest from and including the Redemption Date at the rate
prescribed therefor in the Senior Note.
ARTICLE
XII
DEFEASANCE
Section
12.1 Defeasance
and Discharge.
Upon
the
exercise of the option provided in Section
10.5(b)
by a
Holder of Senior Notes as a result of a Change of Control to have this
Section
12.1
applied
to the Electing Senior Notes, the Company shall, within thirty (30) days
following its receipt of the Change of Control Election satisfy the conditions
set forth in Section
12.2.
The
Company shall be deemed to have been discharged from its obligations with
respect to the Electing Senior Notes as provided in this Section 12.1
on and
after the date the conditions set forth in the Section
12.2
are
satisfied (hereinafter called “Defeasance”).
For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Electing Senior
Notes and to have satisfied all of its other obligations under such Electing
Senior Notes and this Indenture insofar as such Electing Senior Notes are
concerned (and the Trustee, upon request and at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following, which shall survive until otherwise terminated or discharged
hereunder (a) the rights of Holders of the Electing Senior Notes to receive,
solely from the trust fund described in Section
13.2
and as
more fully set forth in such Section
12.2,
payments in respect of the principal of, premium, if any, and interest on the
Electing Senior Notes when payments are due, (b) the Company’s obligations with
respect to the Electing Senior Notes under Sections 2.4,
3.5,
3.6,
and
10.2,
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(d)
this Article
XII.
58
Section
12.2 Conditions
to Defeasance.
The
following shall be the conditions to application of Section
12.1
to the
Electing Senior Notes:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements contemplated by
Section
6.1
and
agree to comply with the provisions of this Article
XII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Electing Senior Notes, (i) money in an amount
in Dollars, (ii) Government Obligations that through the scheduled payment
of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in
an
amount in Dollars, or (iii) a combination thereof, in each case sufficient,
in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such other
qualifying Trustee) to pay and discharge, one hundred percent (100%) of the
principal amount of the Electing Senior Notes on the Stated Maturity plus
interest on the Electing Senior Notes due and payable on the Interest Payment
Dates occurring prior to and including the Stated Maturity, in accordance with
the terms of this Indenture and the Electing Senior Notes.
(b) Such
Defeasance shall not cause the Trustee to have a conflicting interest within
the
meaning of the Trust Indenture Act.
(c) Such
Defeasance shall not result in the trust arising from such deposit constituting
an “investment company” within the meaning of the Investment Company Act of
1940, unless such trust shall be qualified or exempt from regulation
thereunder.
(d) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect
to
such Defeasance have been complied with.
Section
12.3 Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to the provisions of Section
10.2(e),
all
money and Government Obligations (including the proceeds thereof) deposited
with
the Trustee or other qualifying trustee (solely for purposes of this
Section
12.3
and
Section
12.4,
the
Trustee and any such other trustee are referred to collectively as the
“Trustee”)
pursuant to Section
12.2
in
respect of the Electing Senior Notes shall be held in trust and applied by
the
Trustee, in accordance with the provisions of the Electing Senior Notes and
this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Electing Senior Notes, of all sums due and
to
become due thereon in respect of principal, premium, if any, and interest,
but
money so held in trust need not be segregated from other funds except to the
extent required by law.
59
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Government Obligations deposited pursuant
to
Section
12.2
or the
principal and interest received in respect thereof other than any such tax,
fee
or other charge that by law is for the account of the Holders of Electing Senior
Notes.
Anything
in this Article
XII
to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations held
by it
as provided in Section
12.2
with
respect to the Electing Senior Notes that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Defeasance with respect to the Electing Senior Notes.
Section
12.4 Reinstatement.
If
the
Trustee or the Paying Agent is unable to apply any money in accordance with
this
Article
XII
with
respect to the Electing Senior Notes by reason of any order or judgment of
any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the
Electing Senior Notes shall be revived and reinstated as though no deposit
had
occurred pursuant to this Article
XII
with
respect to Electing Senior Notes until such time as the Trustee or Paying Agent
is permitted to apply all money held in trust pursuant to Section
12.3
with
respect to the Electing Senior Notes in accordance with this Article
XII;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Electing Senior Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of Electing Senior Notes to receive such payment from the money
so held in trust.
[signature
page follows]
60
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
| ANTHRACITE CAPITAL, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇▇▇ ▇▇▇▇
|
|
| Title: | President and Chief Operating Officer | |
| ▇▇▇▇▇ FARGO BANK, N.A., as Trustee | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
| Title: | Vice President | |
[Signature
page to Indenture]
61
FORM
OF
OFFICER’S FINANCIAL CERTIFICATE
The
undersigned, the [CHIEF
FINANCIAL OFFICER/TREASURER/ASSISTANT TREASURER/ SECRETARY/ASSISTANT SECRETARY,
CHAIRMAN/VICE CHAIRMAN/CHIEF EXECUTIVE OFFICER/ PRESIDENT/VICE
PRESIDENT]
of
Anthracite Capital, Inc. (the “Company”)
hereby
certifies, pursuant to Section 7.3(b) of the Indenture, dated as of October
4,
2006 (the “Indenture”),
between the Company and ▇▇▇▇▇ Fargo Bank, N.A., as trustee, that, as of
[DATE],
[YEAR],
the
Company, if applicable, and its subsidiaries had the following ratios and
balances:
|
As
of [QUARTERLY/ANNUAL
FINANCIAL DATE],
[YEAR]
|
|||
|
Senior
secured Debt (as defined in the Indenture)
|
$
|
||
|
Senior
unsecured Debt
|
$
|
||
|
Subordinate
Debt (as defined in the Indenture)
|
$
|
||
|
Total
Debt
|
$
|
||
|
Ratio
of (x) Subordinate Debt to (y) the sum of all Subordinate Debt plus
Consolidated Tangible Net Worth (as defined in the
Indenture)
|
%
|
||
[FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three (3) years ended [DATE], [YEAR].]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter ended [DATE], [YEAR].]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”),
the
financial position of the Company and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and
for
the [QUARTER]
[YEAR]
ended
[DATE],
[YEAR],
and
such financial statements have been prepared in accordance with GAAP
consistently applied throughout the period involved (expect as otherwise noted
therein).
There
has
been no monetary default with respect to any indebtedness owed by the Company
and/or its subsidiaries (other than those defaults cured within thirty (30)
days
of the occurrence of the same) [except
as set forth below:].
Exhibit
A-1
Exhibit
A
Attached
hereto is a current organizational chart of the Company and its subsidiaries
as
of the date hereof.
IN
WITNESS WHEREOF, the undersigned has executed this Officer’s Financial
Certificate as of this [DAY]
day of
[MONTH],
[YEAR].
| ANTHRACITE CAPITAL, INC. | ||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Anthracite
Capital, Inc.
|
||
|
[ADDRESS]
|
||
|
[TELEPHONE
NUMBER]
|
||
Exhibit
A-2
Exhibit
B
FORM
OF
OFFICERS’
CERTIFICATE
PURSUANT
TO SECTION 10.3
Pursuant
to Section 10.3 of the Indenture, dated as of October 4, 2006 (as modified,
supplemented or amended from time to time, the “Indenture”)
among
Anthracite Capital, Inc., a Maryland corporation (the “Company”)
and
▇▇▇▇▇ Fargo Bank, N.A., as Trustee, each of the undersigned hereby certifies
that, to the knowledge of the undersigned, the Company is not in default in
the
performance or observance of any of the terms, provisions and conditions of
the
Indenture (without regard to any period of grace or requirement of notice
provided under the Indenture) for the fiscal period ending on [DATE],
[YEAR] [,
except as follows: SPECIFY EACH SUCH DEFAULT AND THE NATURE AND STATUS
THEREOF].
Capitalized
terms used herein, and not otherwise defined herein, have the respective
meanings assigned thereto in the Indenture.
[signatures
page follows]
Exhibit
B-1
IN
WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
[DATE],
[YEAR].
| By: | ________________________________ |
| Name: | ________________________________ |
|
Title:
|
[Must
be the CHIEF EXECUTIVE OFFICER, the PRESIDENT or a SENIOR VICE PRESIDENT]
of
Anthracite Capital, Inc.
|
| By: | ________________________________ |
| Name: | ________________________________ |
|
Title:
|
[Must
be the CHIEF FINANCIAL OFFICER, the CHIEF ACCOUNTING OFFICER, the
TREASURER or an ASSISTANT TREASURER] of Anthracite
Capital, Inc.
|
Exhibit
B-2