FISCAL AGENCY AGREEMENT
among
THE THIRTY-EIGHT HUNDRED FUND, LLC,
THE BANK OF NEW YORK MELLON,
As Fiscal Agent, Principal Paying Agent, Calculation Agent, Transfer Agent
and Registrar,
and
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
As a Paying Agent
Dated as of August 17, 2011
Up to U.S.$200,000,000
Floating Rate Notes due 2012
TABLE OF CONTENTS
-----------------
PAGE #
------
Section 1. General 1
Section 2. Appointment of Agents 1
Section 3. Execution and Authentication 2
Section 4. Forms of Notes; Book Entry 4
Section 5. Registration of Transfer; Exchange 4
Section 6. Payments 6
Section 7. Mutilation or Loss of Notes; Record of Replacement or Cancellation 7
Section 8. Agents 8
Section 9. Maintenance of Agents 11
Section 10. Amendments Without the Consent of Holders 13
Section 11. Amendments With the Consent of Holders 13
Section 12. Certain Taxes 14
Section 13. Notices and Written Instructions 14
Section 14. Governing Law; Jurisdiction 16
Section 15. Counterparts 17
Section 16. Waiver of Jury Trial 17
EXHIBIT A FORM OF TERMS AND CONDITIONS
EXHIBIT B FORM OF GLOBAL NOTE
EXHIBIT C FORM OF DEFINITIVE NOTE
This
FISCAL AGENCY AGREEMENT, dated as of August 17, 2011
(this "AGREEMENT"), is among The Thirty-Eight Hundred Fund, LLC (the "COMPANY"),
The Bank of
New York Mellon, as fiscal agent, principal paying agent,
calculation agent, registrar and transfer agent (the "FISCAL AGENT"), and The
Bank of
New York Mellon, as a paying agent.
Section 1. GENERAL.
Pursuant to a Placement Agent Agreement dated as of August 17, 2011 (the
"PLACEMENT AGENT AGREEMENT") between the Company and Barclays Bank PLC, the
Company has authorized Barclays Bank PLC to act as exclusive placement agent for
the Company in connection with the proposed offering, issue and sale privately
of up to U.S.$200,000,000 aggregate principal amount of the Company's Floating
Rate Notes due 2012 (including, where the context so permits, any beneficial
interest therein, the "NOTES"). All Notes shall contain the Terms and Conditions
of the Notes (the "TERMS") substantially as set forth in EXHIBIT A hereto, which
Terms are hereby incorporated herein. If the Terms contradict any provision of
this Agreement, the Terms shall govern. Each Note shall be dated the date of its
authentication. Capitalized terms used, but not defined herein, shall have the
respective meanings ascribed to such terms in the Terms.
Section 2. APPOINTMENT OF AGENTS.
(a) The Company hereby appoints The Bank of
New York Mellon,
acting through its office at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Global Finance Americas, as the fiscal agent in respect of the
Notes, upon the terms and subject to the conditions set forth herein and in the
Notes, and The Bank of
New York Mellon hereby accepts such appointment. The Bank
of
New York Mellon, together with any successor or successors as such fiscal
agent qualified and appointed in accordance with Section 9 hereof, is herein
called the "FISCAL AGENT." The Fiscal Agent shall have the powers and authority
granted to and conferred upon it herein and in the Notes, and such further
powers and authority to act on behalf of the Company as the Company and the
Fiscal Agent may hereafter mutually agree in writing.
(b) The Company hereby appoints The Bank of
New York Mellon,
acting through its office at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Global Finance Americas, as registrar, upon the terms and
subject to the conditions set forth herein and in the Notes, and The Bank of
New
York Mellon hereby accepts such appointment. The Bank of
New York Mellon,
together with any successor or successors as such registrar qualified and
appointed in accordance with Section 9 hereof, is herein called the "REGISTRAR."
The Registrar shall have the powers and authority granted to and conferred upon
it herein and in the Notes, and such further powers and authority to act on
behalf of the Company as the Company and the Registrar may hereafter mutually
agree in writing.
(c) The Company hereby appoints The Bank of New York Mellon,
acting through its office at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Global Finance Americas, as principal paying agent and
calculation agent, upon the terms and subject to the conditions set forth herein
and in the Notes, and The Bank of New York Mellon
1
hereby accepts such appointment. The Bank of New York Mellon, together with any
successor or successors as such principal paying agent or calculation agent
qualified and appointed in accordance with Section 9 hereof, is herein called in
its respective roles as the "PAYING AGENT" and "CALCULATION AGENT." The Paying
Agent and Calculation Agent shall have the powers and authority granted to and
conferred upon it herein and in the Notes, and such further powers and authority
to act on behalf of the Company as the Company and the Paying Agent and
Calculation Agent may hereafter mutually agree in writing.
(d) The Company hereby initially appoints The Bank of New York
Mellon, acting through its office at 1 Canada Square, 40th floor, Xxxxxx Xxxxx,
Xxxxxx X00 0XX, Attention: Corporate Trust Department, as a paying agent, upon
the terms and subject to the conditions herein and in the Notes, and The Bank of
New York Mellon hereby accepts such appointment. The Company also hereby
initially appoints The Bank of New York Mellon, acting through its office at 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Finance
Americas, as transfer agent, upon the terms and subject to the conditions herein
and in the Notes, and The Bank of New York Mellon hereby accepts such
appointment. Each of such paying agent and transfer agent shall have the powers
and authority granted to and conferred upon it herein and in the Notes, and such
further powers and authority to act on behalf of the Company as the Company and
such paying agent or transfer agent, as the case may be, may hereafter mutually
agree in writing.
(e) Each of the Paying Agent, the Calculation Agent, the
Fiscal Agent, and the Registrar is sometimes herein referred to severally as an
"AGENT" and, collectively, as the "AGENTS." The transfer agents and other paying
agents appointed from time to time by the Company as provided herein and in the
Notes are referred to respectively as "PAYING AGENTS" and "TRANSFER AGENTS."
Section 3. EXECUTION AND AUTHENTICATION.
(a) The Fiscal Agent is authorized, upon receipt of Notes duly
executed on behalf of the Company in accordance with Section 3(b) hereof, to
manually authenticate Notes in an aggregate principal amount at any one time
outstanding not in excess of U.S.$200,000,000 (except as otherwise provided in
Section 5 of the Terms), and to deliver such Notes in accordance with the
written order or orders of the Company signed on its behalf by an Authorized
Signatory (as defined in Section 8(i) hereof). The Fiscal Agent shall at all
times act as the sole authenticating agent for the authentication of Notes
hereunder. Until a Note has been authenticated as provided herein, it shall have
no force and effect.
(b) The Notes shall be executed on behalf of the Company by
any director of the Company. The signature of any director on the Notes may be
manual or facsimile. Notes bearing the manual or facsimile signature of any
individual who was at any time a proper director of the Company shall bind the
Company, notwithstanding that such individual has ceased to be a director prior
to the authentication and delivery of such Notes or was not a director at the
date of such Notes.
(c) Each Note shall be dated the date of its authentication.
2
Section 4. FORMS OF NOTES; BOOK ENTRY.
(a) REGULATION S GLOBAL NOTE; UNRESTRICTED GLOBAL NOTE. The
Notes are to be sold in offshore transactions in reliance on Regulation S
("REGULATION S") under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), and shall be issued in the form of a permanent global Note
(which may be subdivided) in definitive, fully registered form without interest
coupons, substantially in the form of Exhibit B hereto, with such legends as may
be applicable thereto, which shall be deposited on behalf of the subscribers for
the Notes represented thereby with the Fiscal Agent, as custodian for The Bank
of New York Depository (Nominees) Limited, or registered assigns, as the common
depositary for Euroclear Bank S.A./N.V. ("EUROCLEAR") and for Clearstream
Banking, SOCIETE ANONYME ("CLEARSTREAM") with respect to the Notes, and any and
all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provisions of this Agreement (the "COMMON
DEPOSITARY"), and which shall be duly executed by the Company and authenticated
by the Fiscal Agent in the manner set forth in Section 3 hereof, for credit on
the date of issuance of the Notes (the "CLOSING DATE") to such subscribers'
respective accounts (or to such other account as they may direct) at Euroclear
and Clearstream.
On or prior to the 40th day after the later of the
commencement of the offering and the Closing Date (the "RESTRICTED PERIOD"),
beneficial interests in such global note may be held only by the agent members
of Euroclear and Clearstream. Until such time as the Restricted Period shall
have expired, such global Note shall be referred to herein as the "REGULATION S
GLOBAL NOTE." After such time as the Restricted Period shall have expired, such
global Note shall be referred to herein as the "UNRESTRICTED GLOBAL NOTE." After
such time as the Restricted Period shall have expired, beneficial interests in
the Unrestricted Global Note may be held through organizations or persons other
than those that have accounts with Euroclear and Clearstream. The aggregate
principal amount of the Regulation S Global Note and the Unrestricted Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Fiscal Agent, as custodian for the Common Depositary as
hereinafter provided.
(b) OFFSHORE BOOK-ENTRY PROVISIONS.
(i) This Section 4(b)(i) shall apply only to the Regulation S
Global Note or the Unrestricted Global Note (either such note,
including, where the context so permits, a beneficial interest
therein, being a "GLOBAL NOTE") deposited on behalf of the
subscribers for the Notes represented thereby with the Fiscal
Agent as custodian for the Common Depositary for credit to
their respective accounts (or to such other accounts as they
may direct) at Euroclear and Clearstream insofar as interests
in such Global Note are held by the agent members of Euroclear
and Clearstream.
Account holders or participants in Euroclear and Clearstream
shall have no rights under this Agreement with respect to such Global Note, and
the Common Depositary may be treated by the Company, any Agent, and any agent of
either the Company or any Agent as the owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing,
3
nothing herein shall prevent the Company, any Agent, or any agent of either the
Company or any Agent from giving effect to any written certification, proxy or
other authorization furnished by Euroclear or Clearstream or impair, as between
Euroclear, Clearstream and their respective agent members, the operation of
customary practices governing the exercise of the rights of a holder of any
Note.
(ii) DENOMINATIONS. The Notes shall be issuable in the
denominations set forth in Section 4 of the Terms.
Section 5. REGISTRATION OF TRANSFER; EXCHANGE.
(a) GENERALLY.
(i) Subject to such reasonable regulations and procedures as
it may prescribe, the Company will keep books for the
exchange, registration and registration of transfer of Notes
(the "REGISTER") at the designated office of the Registrar,
acting as its agent for such purposes. The Company shall have
the right, on reasonable notice, to inspect the Register or
obtain copies of the Register. Promptly after the issuance of
the Notes and thereafter promptly after any change thereto,
the Registrar will provide the Company with a copy of the
Register.
(ii) The Registrar shall not register the transfer or exchange
of Notes during any period referred to in Section 5(e) of the
Terms.
(iii) Transfer, registration and exchange of any Note or Notes
shall be permitted and executed as provided in the Terms and
this Section 5, and the costs and expenses will be borne as
provided in the Terms, subject to such reasonable regulations
and procedures as the Company, the Registrar, and the transfer
agents may prescribe.
(iv) All Notes surrendered for registration of transfer or
exchange shall be delivered to the Registrar. The Registrar
shall register the cancellation of such Notes in the Register,
xxxx such Notes as canceled and return them promptly to the
Company.
(v) No Note or any interest therein shall be transferable
other than by operation of law as a result of the death,
divorce, bankruptcy or incompetency of a holder of such Notes.
Any transfer in violation of these provisions shall be void
and of no effect.
(b) GLOBAL NOTES. Notwithstanding any provision to the
contrary herein, so long as a Global Note remains outstanding and is held by or
on behalf of Euroclear or Clearstream, transfers of a Global Note, in whole or
in part, shall only be made in accordance with this Section 5(b).
(i) TRANSFERS OF GLOBAL NOTES IN WHOLE. Subject to clause (ii)
of this Section
4
5(b), transfers of a Global Note shall be limited to transfers
on behalf of all subscribers of such Global Note in whole, but
not in part, to nominees of Euroclear and Clearstream or to a
successor of Euroclear or Clearstream or such successor's
nominee.
(ii) OTHER TRANSFERS OR EXCHANGES. In the event that a Global
Note is exchanged for certificated Notes in definitive
registered form without interest coupons pursuant to Section
5(c) hereof, such Notes may be exchanged or transferred for
one another only in accordance with the other provisions of
this Agreement and with procedures as are substantially
consistent with customary practice for exchanges and transfers
of this type (including the certification requirements
intended to ensure that such exchanges or transfers comply
with Regulation S under the Securities Act and any applicable
laws of any state of the United States of America or any other
jurisdiction, as the case may be) and as may be from time to
time adopted by the Company and the Fiscal Agent.
(c) DEFINITIVE NOTES.
(i) CONDITIONS FOR ISSUANCE. Interests in a Global Note
deposited with Euroclear or Clearstream pursuant to Section
4(b) above shall be transferred to the beneficial owners
thereof in the form of definitive Notes only if such transfer
complies with this Section 5 and (1) Euroclear or Clearstream
notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or (2) an Event of
Default (as defined in Section 7 of the Terms) has occurred
and is continuing with respect to the Notes.
(ii) ISSUANCE. If interests in any Global Note are to be
transferred to the beneficial owners thereof in the form of
definitive Notes pursuant to this Section 5(c), such Global
Note to be so transferred shall be surrendered by Euroclear or
Clearstream, as the case may be, to the Registrar without
charge, the Registrar shall register the transfer in the
Register and the Fiscal Agent shall authenticate and deliver,
upon such transfer of interests in such Global Note, an equal
aggregate principal amount of definitive Notes of authorized
denominations in the form attached as EXHIBIT C hereto. The
definitive Notes transferred pursuant to this Section 5(c)
shall be executed, authenticated and delivered only in the
denominations specified in Section 4 of the Terms and
registered in such names as Euroclear or Clearstream, as the
case may be, shall direct in writing. The Company shall be
liable for the costs and expenses of printing or preparing any
definitive Notes. Neither the Registrar nor any transfer agent
shall register the exchange of interests in a Global Note for
definitive Notes for a period of 15 days preceding the due
date for any payment of principal or interest on the Note.
(iii) TRANSFER. Subject to this Section 5, any definitive Note
may be transferred in whole or in part in the amount of any
authorized denomination (as defined in Section 4 of the Terms)
by surrendering at the office of the Registrar or at the
office of any other transfer agent that may be appointed by
the Company such
5
Note with the form of transfer thereon duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar or any such
transfer agent, as the case may be, duly executed by the
holder thereof or his attorney-in-fact duly authorized in
writing. In exchange for any definitive Note properly
presented for transfer, the Registrar shall register such
transfer in the Register and the Fiscal Agent shall promptly
authenticate and deliver or cause to be authenticated and
delivered at the office of the Registrar or at the office of
any transfer agent, as the case may be, to the transferee or
send by mail to such address as the transferee may request,
at the risk of such transferee, definitive Notes registered
in the name of such transferee, for the same aggregate
principal amount as was transferred. In the case of the
transfer of any definitive Note in part, the Fiscal Agent
shall also promptly authenticate and deliver or cause to be
authenticated and delivered at the office of the Registrar
or at the office of any transfer agent, as the case may be,
to the transferor or send by mail to such address as the
transferor may request, at the risk of such transferor,
definitive Notes registered in the name of the transferor,
for the aggregate principal amount that was not transferred.
No transfer of any definitive Note shall be made unless the
request for such transfer is made by the registered holder
or by a duly authorized attorney-in-fact at the office of
the Registrar or at the office of any other transfer agent
that may be appointed by the Company.
(iv) EXCHANGE. At the option of the holder on request
confirmed in writing and subject to applicable laws and
regulations and to the Terms, definitive Notes may be
exchanged for Notes of any authorized denomination (as defined
in Section 4 of the Terms) and of equal aggregate principal
amount, upon surrender of the Notes to be exchanged at the
office of the Registrar or at the office of a transfer agent.
Whenever any Note is so surrendered for exchange, together
with a written request for exchange, the Registrar shall
register the transfer in the Register and the Fiscal Agent
shall promptly authenticate and deliver (directly or through a
transfer agent, as the case may be) Notes which the holder
making the exchange is entitled to receive subject to the
Terms.
Section 6. PAYMENTS.
(a) In order to provide for the payment of principal and
interest (including Additional Amounts pursuant to, and as defined in, Section
13 of the Terms) on the Notes as the same shall become due and payable, the
Company hereby agrees to pay to the Fiscal Agent, by 10:00 a.m. New York time,
on each Interest Payment Date (as defined on the face of the Notes) or the
maturity date of the Notes or any date fixed for redemption of the Notes (each,
a "PAYMENT DATE"), in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, an amount in immediately available funds which (together with any
amounts then held by the Fiscal Agent and available for that purpose) shall be
sufficient to pay the entire amount of principal or interest (including any
Additional Amounts) becoming due on such Payment Date with respect to the Notes.
The Company shall confirm by facsimile on the business day prior to the day
6
payment is due to be made to the Fiscal Agent that it has issued irrevocable
paying instructions for the transfer of the relevant sum due to the account of
the Fiscal Agent. The Fiscal Agent shall make amounts received by it available
to the Paying Agent and the Paying Agent shall hold such funds in trust and
apply them to the payment of such principal and interest (including any
Additional Amounts) on such Payment Date. No paying agent shall be required to
use its own funds in making any payment on the Notes, except that the Paying
Agent or its affiliates may use their own funds as necessary to facilitate the
funding of timely payment of interest or principal. If the Fiscal Agent pays any
amounts to the holders of the Notes or to any other Paying Agent (if any) at a
time when it has not received payment in full in respect of the relevant
Securities in accordance with this Section 6 (the excess of the amounts so paid
over the amounts so received being the "Shortfall"), the Company will, in
addition to paying amounts due under this Section 6, pay to the Fiscal Agent on
demand interest (at a rate which represents the Fiscal Agent's cost of funding
the Shortfall) on the Shortfall (or the unreimbursed portion thereof) until the
receipt in full by the Paying Agent of the Shortfall. All sums payable to the
Fiscal Agent hereunder shall be paid to such account with such bank as the
Fiscal Agent may from time to time notify the Company not less than three
business days before any such sum is due and payable. Payments to holders of
Notes shall be made by the Paying Agent in accordance with Section 9 of the
Terms. As used in this Agreement, "BUSINESS DAY" means a day on which banks are
open for business and carrying out transactions in United States dollars in The
City of New York, London and the city of the designated office of the Paying
Agent.
(b) In any case where a Payment Date shall not be a business
day at any place of payment, then the relevant payment need not be made on such
date at such place but may be made on the next succeeding day which is a
business day at such place, with the same force and effect as if made on the
date for such payment, and no additional interest in respect of such Payment
Date shall accrue for the period from and after such Payment Date.
(c) Any interest not punctually paid or duly provided for on
any Interest Payment Date shall forthwith cease to be payable to the persons in
whose name the Notes are registered on the Regular Record Date (as such term is
defined in Section 9(a) of the Terms) immediately preceding such Interest
Payment Date and shall be paid instead to the persons in whose names the Notes
are registered at the close of business on a subsequent record date for the
payment of such defaulted interest to be fixed by the Company by notice to the
holders not less than 15 calendar days prior to such subsequent record date or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes are listed at the
time of such payment.
Section 7. MUTILATION OR LOSS OF NOTES; RECORD OF
REPLACEMENT OR CANCELLATION.
(a) The Company shall execute and deliver to the Fiscal Agent
Notes in such amounts and at such times as to enable the Fiscal Agent to fulfill
its responsibilities under this Agreement and the Notes.
(b) The Fiscal Agent is hereby authorized, in accordance with
Section 5 of the
7
Terms, to authenticate and deliver or cause to be authenticated and delivered
from time to time Notes in exchange for or in lieu of Notes which have become
mutilated or defaced, or destroyed, lost or stolen. Each Note authenticated and
delivered in exchange for or in lieu of any such Note shall carry all the rights
to interest accrued and unpaid and to accrue which were carried by such Note
before such mutilation or defacement, or destruction, loss or theft.
(c) In the case of a mutilated, defaced, destroyed, lost or
stolen Note, indemnity satisfactory to the Fiscal Agent and the Company will be
required of the owner of such Note before a replacement Note will be issued. All
expenses (including the reasonable legal fees and expenses of the Company and
the Fiscal Agent) associated with obtaining such indemnity and in issuing the
new Note shall be borne by the owner of the mutilated, defaced, destroyed, lost
or stolen Note.
(d) In the case of the replacement of any of the Notes, the
Fiscal Agent and the Registrar, in the Register, will keep a record of the Notes
so replaced and the Notes issued in replacement thereof. In the case of the
cancellation of any of the Notes (including upon repayment), the Fiscal Agent
and the Registrar, in the Register, will keep a record of the Notes so canceled
and the date on which such Notes were canceled.
Section 8. AGENTS.
Each of the Agents accepts its obligations set forth herein
and in the Notes upon the terms and conditions hereof and thereof, including the
following, to all of which the Company agrees and to all of which the rights of
the holders from time to time of the Notes shall be subject:
(a) Each of the Agents shall be entitled to the compensation
to be agreed upon with the Company in writing for all services rendered by it,
and the Company agrees promptly to pay such compensation and to reimburse each
of the Agents for reasonable out-of-pocket expenses (including reasonable legal
fees and expenses) incurred by it in connection with the services rendered by it
hereunder, as and to the extent agreed upon with the Company; PROVIDED, HOWEVER,
that all notices, invoices or other communications in connection with the
compensation of the Agents shall be sent by each of the Agents to The Bank of
New York Mellon, and all payments of compensation by the Company to any of such
Agents shall be paid to The Bank of New York Mellon.
The Company also agrees to indemnify each of the Agents and
each other paying agent and transfer agent for, and to hold them harmless
against, any loss, liability, cost, claim, action, demand or expense (including
the costs and expenses of defending against any claim of liability) incurred
without gross negligence, bad faith or willful misconduct arising out of or in
connection with their acting as such Agent or a paying agent or transfer agent
hereunder, as the case may be, or performing any other duties pursuant to the
terms and conditions hereof. The obligations of the Company under this
subsection (a) shall survive the payment of the Notes and the resignation or
removal of such Agent, paying agent or transfer agent, as the case may be, and
the termination of this Agreement.
8
(b) In acting under this Agreement and in connection with the
Notes, each of the Agents and each other paying agent and transfer agent is
acting solely as agent of the Company and does not assume any obligation to, or
relationship of agency or trust for or with, any of the owners or holders of the
Notes except that all funds held by such Agent or any paying agent for the
payment of principal of or interest (and any Additional Amounts) on the Notes
shall be held in trust by such Agent or such paying agent, as the case may be,
and applied as set forth herein and in the Notes; PROVIDED that any such moneys
remaining unclaimed at the end of two years after the date on which such
principal, interest or Additional Amounts shall have become due and payable
shall be repaid to the Company (including all interest accrued, if any, with
respect to any such amounts), as provided and in the manner set forth in Section
8(f) hereof, whereupon the aforesaid trust shall terminate and all liability of
such Agent or any other paying agent with respect to such moneys shall cease.
(c) Each of the Agents and each other paying agent and
transfer agent may consult with counsel of its selection, and any advice or
written opinion of such counsel shall be full and complete authorization and
protection, and no liability shall be incurred by such Agent in respect of any
action taken, suffered or omitted to be taken by such Agent hereunder in good
faith and in reliance on such advice or opinion.
(d) Each of the Agents and each other paying agent and
transfer agent shall be protected and shall incur no liability for or in respect
of any action taken or omitted to be taken or thing suffered by it in reliance
upon any Note, notice, direction, consent, certificate, affidavit, statement or
other paper or document reasonably believed by it to be genuine and to have been
presented or signed by the proper person or parties.
(e) Each of the Agents and each other paying agent and
transfer agent, and each of their officers, directors and employees, in such
person's individual capacity or any other capacity, may become the owner of, or
acquire any interest in, any Notes or other obligations of the Company with the
same rights that it would have had if it were not such Agent or such other
paying agent or transfer agent or an officer, director or employee thereof, as
the case may be, and may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or agent
for, any committee or body of holders of Notes or other obligations of the
Company, as freely as if it were not such Agent or such other paying agent or
transfer agent or an officer, director or employee thereof, as the case may be.
(f) All moneys paid by or on behalf of the Company to the
Paying Agent or any other paying agent for the payment of the principal of or
interest on any Note which remain unclaimed at the end of two years after such
principal or interest shall have become due and payable will be repaid to the
Company (including all interest accrued, if any, with respect to any such
amounts) upon written request, and the holder of such Note will thereafter look
only to the Company for payment. Upon such repayment, all liability of the
Paying Agent and any other paying agent with respect thereto shall cease,
without, however, limiting in any way the obligation of the Company in respect
of the amount so repaid.
(g) The recitals contained herein and in the Notes (except in
the certificate of authentication of a duly authorized officer or a duly
appointed signatory of the Fiscal Agent)
9
shall be taken as the statements of the Company, and the Agents assume no
responsibility for the correctness of the same. None of the Agents makes any
representation as to the validity or a sufficiency of this Agreement or the
Notes. None of the Agents or any other paying agent shall be accountable for the
use or application by the Company of the proceeds of any Notes authenticated and
delivered by or on behalf of the Fiscal Agent in conformity with the provisions
of this Agreement.
(h) The Agents and each other paying agent and transfer agent
shall be obligated to perform such duties and only such duties as are herein and
in the Notes specifically set forth, and no implied duties or obligations shall
be read into this Agreement or the Notes against the Agents or any such other
paying agent or transfer agent. None of the Agents shall be under any obligation
to take any action hereunder which may tend to involve it in any expense or
liability. The Agents shall not be liable for any error in judgment made in good
faith unless it is proved that such Agent was grossly negligent in asserting the
pertinent facts.
(i) Except as otherwise specifically provided herein or in the
Notes, any order, certificate, notice, request, direction or other communication
from the Company, made or given under any provision of this Agreement, shall be
sufficient if signed by an authorized signatory of the Company (an "AUTHORIZED
SIGNATORY"). From time to time, the Company will furnish the Agents with a
certificate as to the incumbency and specimen signatures of persons who are then
Authorized Signatories. Until the Agents receive a subsequent certificate from
the Company, the Agents shall be entitled to rely on the last such certificate
delivered to them for purposes of determining the Authorized Signatories.
(j) None of the Agents shall have any duty or responsibility
in case of any default by the Company in the performance of its obligations
(including, without limiting the generality of the foregoing, any duty or
responsibility to accelerate all or any of the Notes or to initiate or to
attempt to initiate any proceedings at law or otherwise or to make any demand
for the payment thereof upon the Company).
(k) The Agents may act through their attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care. The Agents may act and rely and shall be protected in acting and
relying in good faith on the opinion or advice of or information obtained from
any Counsel, accountant, appraiser or other expert or adviser, whether retained
or employed by the Company or by the Agents, in relation to any matter arising
out of or relating to this Agreement, the Notes or the transactions contemplated
hereby.
(l) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Agents be liable under or in connection
with this Agreement for indirect, special, incidental, punitive or consequential
losses or damages of any kind whatsoever, including but not limited to lost
profits, whether or not foreseeable, even if the Agents have been advised of the
possibility thereof and regardless of the form of action in which such damages
are sought.
(m) In no event shall any of the Agents be responsible or liable for
any failure
10
or delay in the performance of its obligations hereunder arising out
of or caused by, directly or indirectly, forces beyond its control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of god,
and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Agents shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 9. MAINTENANCE OF AGENTS.
(a) The Company agrees that, so long as any of the Notes is
outstanding, or until moneys for the payment of all principal of and interest
(and any Additional Amounts) on all outstanding Notes shall have been made
available at the offices of the Paying Agent or, as to moneys remaining
unclaimed, shall have been returned to the Company as provided in Sections 8(b)
and 8(f) hereof, whichever occurs earlier, there shall at all times be a fiscal
agent in respect of the Notes, agents for the payment of the principal of and
interest (and any Additional Amounts) on the Notes and a registrar for transfer
and exchange of Notes in accordance with Section 9 of the Terms. The Company
agrees to keep the Agents advised of the names and locations of all paying and
transfer agents; PROVIDED that, until the Company shall otherwise notify the
Agents in writing, such paying and transfer agents shall consist only of those
set forth in Section 9 of the Terms. The Paying Agent shall arrange with all
such paying and transfer agents for the payment, from funds furnished by the
Company, to the Paying Agent pursuant to this Agreement of the principal of and
interest (and any Additional Amounts) on the Notes and of the compensation of
such paying and transfer agents for their services as such.
(b) Each of the Agents may at any time resign by giving
written notice of its resignation to the Company specifying the date on which
its resignation shall become effective, subject to the conditions set forth
below; PROVIDED that such date shall be at least 30 days after the receipt of
such notice by the Company unless the Company agrees to accept shorter notice.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor to such Agent by written instrument in duplicate signed on behalf of
the Company, one copy of which shall be delivered to the resigning Agent and one
copy to the successor Agent. Notwithstanding the date of effectiveness specified
in such written notice of resignation, each resignation shall become effective
only upon the acceptance of appointment by the successor to such Agent as
provided in Section 9(d) hereof. The Company may, at any time and for any reason
upon at least 30 days' written notice to that effect (provided that no such
notice shall expire less than 15 days before or 15 days after any Interest
Payment Date and no such notice shall be required if any Insolvency Event occurs
in respect of an Agent) remove any Agent and appoint a successor Agent by
written instrument in duplicate signed on behalf of the Company, one copy of
which shall be delivered to the Agent being removed and one copy to the
successor Agent. Notwithstanding the date of effectiveness specified in such
written notice of removal, each removal of an Agent and any appointment of a
successor Agent shall become effective only upon acceptance of appointment by
the successor to such Agent as provided in Section 9(d) hereof. Upon resignation
or removal, such Agent shall be entitled to the payment by the Company of its
compensation for the services rendered hereunder and to the reimbursement of
11
all reasonable out-of-pocket expenses (including reasonable legal fees and
expenses) incurred in connection with the services rendered by it hereunder, as
and to the extent agreed upon with the Company; PROVIDED, HOWEVER, that all
notices, invoices or other communications in connection with the compensation of
the Agents shall be sent by each of the Agents to The Bank of New York Mellon,
and all payments of compensation by the Company to any of such Agents shall be
paid to The Bank of New York Mellon.
(c) In case at any time any of the Agents shall resign, or
shall be removed, or shall become incapable of acting, or an Insolvency Event
occurs in respect of any Agent, a successor to such Agent shall be appointed by
the Company by an instrument in writing. Upon the appointment as aforesaid of a
successor to such Agent and acceptance by it of such appointment, the Agent so
superseded shall cease to be such Agent hereunder. If, after 90 days, no
successor to such Agent shall have been so appointed, or if so appointed, shall
not have accepted appointment as hereinafter provided, any holder of a Note, on
behalf of itself and all others similarly situated, or such Agent may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor to such Agent.
(d) Any successor Fiscal Agent hereunder shall be a bank or
trust company organized and doing business under the laws of the United States
of America or of the State of New York, in good standing and having and acting
through an established place of business in the Borough of Manhattan, The City
of New York, authorized under such laws to exercise corporate trust powers and
having a combined capital and surplus in excess of U.S.$50,000,000. Any
successor Agent appointed hereunder shall execute and deliver to its predecessor
and to the Company an instrument accepting such appointment hereunder, and
thereupon such successor Agent, without any further act shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as such Agent hereunder, and such
predecessor, upon payment of its compensation and reasonable out-of-pocket
expenses then unpaid, shall pay over to such successor Agent all moneys or other
property at the time held by it hereunder.
(e) Any corporation or bank into which any Agent may be merged
or converted, or with which any Agent may be consolidated, or any corporation or
bank resulting from any merger, conversion or consolidation to which the Agent
shall be a party, or any corporation or bank to which such Agent shall sell or
otherwise transfer all or substantially all of its assets and business, or any
corporation or bank succeeding to the corporate trust business of such Agent
shall be the successor to such Agent hereunder, without the execution or filing
of any document or any further act on the part of the parties hereto.
(f) At least 10 days prior to the first date of payment on the
Notes, if at such time any payment on such Notes shall be subject to deduction
or withholding for or on account of any tax, assessment or other governmental
charge, and at least 10 days prior to each date, if any, of payment thereafter
if there has been any change with respect to such matters, the Company will
furnish the Fiscal Agent and each other paying agent with a certificate of an
Authorized Signatory of the Company instructing the Fiscal Agent and each other
paying agent whether such payment on such Notes shall be made without deduction
or withholding for or on account of any tax, assessment or other governmental
charge. In the absence of any such
12
certificate the Fiscal Agent may assume that no such deduction or withholding
shall be required. If any such deduction or withholding shall be required, then
such certificate shall specify, by country, the amount, if any, required to be
withheld on such payment to holders of such Notes and the Company will (i)
withhold or deduct such payment as required by applicable law and (ii) pay or
cause to be paid to the Fiscal Agent (or, if applicable, directly to a paying
agent or agents) additional amounts, if any, required by the terms of such Notes
to be paid such that the net amounts receivable by the holders of the Notes
after such withholding or reduction shall equal the payment which would have
been receivable in respect of the Notes in the absence of such withholding or
reduction. The Company agrees to indemnify the Fiscal Agent and each other
paying agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without gross negligence, bad faith, willful
misfeasance or reckless disregard of obligations or duties on their part arising
out of or in connection with actions taken or omitted by them in reliance on any
certificate furnished pursuant to this Section 9(f).
Section 10. AMENDMENTS WITHOUT THE CONSENT OF HOLDERS.
The Company and the Fiscal Agent may, upon agreement between
themselves, without the vote or consent of any holder of Notes, modify, amend,
amend and restate or supplement this Agreement or the Notes for the purpose of
(i) adding to the covenants of the Company for the benefit of the holders of
Notes, (ii) surrendering any rights or power conferred upon the Company in a
manner which shall not adversely affect the interest of any holder of Notes in
any material respect, (iii) securing the Notes pursuant to the requirements of
the Notes or otherwise, (iv) correcting any defective provision contained in
this Agreement or in the Notes in a manner which shall not adversely affect the
interest of any holder of Notes in any material respect or (v) otherwise
amending this Agreement or the Notes in a manner which shall not adversely
affect the interest of any holder of Notes in any material respect. The Company
will notify each holder of Notes of any such change in accordance with Section
15 of the Terms and as soon as reasonably practicable will make any such
modified, amended or supplemented documents available to them for review. Prior
to executing any amendment under this Section 10 or pursuant to Section 8 of the
Terms, the Fiscal Agent, upon request, shall be entitled to receive, and
(subject to Section 8 of this Agreement), shall be fully protected in relying on
an opinion of counsel to the Company stating that such amendment is permitted
under this Agreement. The Fiscal Agent may, but shall not be obligated to,
execute any amendment if such amendment adversely affects the Fiscal Agent's
rights, duties or immunities.
Section 11. AMENDMENTS WITH THE CONSENT OF HOLDERS.
(a) The Company and the Fiscal Agent may modify, amend or
supplement the terms of the Notes or this Agreement for any purpose not set out
in Section 10 only with the consent of the holders of Notes as provided in
Section 8 of the Terms.
(b) Upon the written request of the Company and at the
Company's expense, the Fiscal Agent shall request from Euroclear and Clearstream
a position listing of participants that have an interest in the Regulation S
Global Note or the Unrestricted Global Note (as the
13
case may be).
(c) "OUTSTANDING" DEFINED. For purposes of the provisions
hereof and the Notes, any Note authenticated and delivered pursuant to this
Agreement shall, as of any date of determination, be deemed to be "OUTSTANDING,"
except:
(i) Notes theretofore canceled by the Registrar or
delivered to the Fiscal Agent, any paying agent or any
transfer agent for cancellation or held by the Fiscal Agent
for reissuance but not reissued by the Fiscal Agent; or
(ii) Notes in lieu of or in substitution for which other Notes
shall have been authenticated and delivered pursuant hereto;
PROVIDED that in determining whether the holders of the
requisite aggregate principal amount of Outstanding Notes are
present at a meeting of holders of Notes for quorum purposes
or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment,
modification or supplement hereunder, Notes owned by or on
behalf of the Company shall be disregarded and deemed not to
be Outstanding, except that in determining whether the Fiscal
Agent shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver,
amendment, modification or supplement, only Notes that a
responsible officer of the Fiscal Agent knows to be so owned
shall be so disregarded.
(d) In agreeing to any modification, amendment or supplement
to this Agreement or the Notes, the Fiscal Agent shall be entitled to receive,
and shall be fully protected in relying upon, a certificate of an official of
the Company stating that such amendment is authorized or permitted by this
Agreement.
Section 12. CERTAIN TAXES.
In the event that any stamp, transfer, other documentary or
similar taxes or duties may be imposed by any governmental authority in
connection with the execution or delivery of this Agreement or the original
issuance of the Notes or the enforcement of any provisions hereof or thereof,
the Company will pay to the appropriate party such amounts as may be necessary
to compensate such party for such taxes or duties. Notwithstanding the
foregoing, nothing contained herein shall be deemed to require the Company to
pay any such taxes with respect to transfers or exchanges of the Notes.
Section 13. NOTICES AND WRITTEN INSTRUCTIONS
All notices hereunder shall be in English and shall be sent by
facsimile transmission (in such case confirmed by prepaid airmail) or certified
or registered mail, postage prepaid, addressed to the following entities hereto
as follows:
ADDRESS
-------
Company 0000 Xxxxxx Xxxxxx Xxxxxxx
00
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
Fiscal Agent, Paying Agent, The Bank of New York Mellon
Registrar and Transfer 000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxxxx Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Global Finance Americas
Paying Agent The Bank of New York Mellon
1 Canada Square, 00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxx X00 0XX
Xxxxxxx
Telephone: 000-00 000-000-0000
Facsimile: 011-44-207-964-2536
Attn: Corporate Trust Department
or at any other address of which any of the foregoing shall have notified the
others in writing. Any such notice shall be effective on receipt. The Fiscal
Agent shall deliver a copy of any notice received on behalf of the Company in
connection with this Agreement or the Notes (excluding notices given regarding
the transfer or exchange of Notes) to the Company in accordance with the terms
of this Section 13.
The Company may provide written instructions to the Fiscal Agent via (i)
computer facsimile, email, the Internet or other insecure electronic method
("Internet Communication"), or (ii) secure electronic transmission containing
applicable authorization codes, passwords and/or authentication keys (along with
Internet Communications "Written Instructions"). If the Fiscal Agent receives
Written Instructions which appear on their face to have been transmitted by a
person whose name is contained on a list of persons authorized to act on behalf
of the Company that is maintained by the Fiscal Agent ("Authorized Persons") the
Company understands and agrees that the Fiscal Agent cannot determine the
identity of the actual sender of such Written Instructions and that the Fiscal
Agent shall conclusively presume that such Written Instructions have been sent
by an Authorized Person, provided however, that the Fiscal Agent first confirms
by telephonic communication with an Authorized Person that any Internet
Communication has been sent by the Authorized Person purporting to send the
Internet Communication. The Company shall be responsible for ensuring that only
Authorized Persons transmit such Written Instructions to Fiscal Agent and that
all Authorized Persons treat applicable user and authorization codes, passwords
and/or authentication keys with extreme care. The Company acknowledges and
agrees that it is fully informed of the protections and risks associated with
the various methods of transmitting Written Instructions to the Fiscal Agent and
that there may be more secure methods of transmitting written instructions than
the method(s) selected by the Company. Company agrees that the security
procedures (if any) to be followed in connection with its transmission of
written instructions provide to it a
15
commercially reasonable degree of protection in light of its particular needs
and circumstances. If Company elects (with Fiscal Agent's prior consent) to
transmit written instructions through an on-line communications service owned or
operated by a third party, Company agrees that Fiscal Agent shall not be
responsible or liable for the reliability or availability of any such service.
Section 14. GOVERNING LAW; JURISDICTION.
(a) This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
(b) To the fullest extent it may effectively do so, the
Company hereby (i) irrevocably submits to the non-exclusive jurisdiction of any
New York State or federal court sitting in The City of New York, and any
appellate court from any thereof, in any suit, action or proceeding arising out
of or relating to this Agreement (a "RELATED PROCEEDING") and (ii) irrevocably
agrees that all claims in respect of any Related Proceeding may be heard and
determined in such New York State or federal court. The Company hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of any Related Proceeding and any
objection to any Related Proceeding whether on the grounds of venue, residence
or domicile. The Company hereby agrees, to the fullest extent it may effectively
do so, that a final judgment in any Related Proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or any other
manner provided by law.
(c) The Company hereby appoints Corporation Services Company
(the "PROCESS AGENT"), with an office on the date hereof at 1180 Avenue of the
Americas, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive on behalf
of the Company and its property service of copies of the summons and complaint
and any other process which may be served in any Related Proceeding in such New
York State or federal court sitting in The City of New York. The Company hereby
agrees that such service may be made by U.S. registered mail, to the fullest
extent permitted by law, or by delivering by hand a copy of such process to the
Company in care of the Process Agent at the address specified above for the
Process Agent (and the Company hereby agrees that such service will be effective
upon delivery by hand of such process to the office of the Process Agent or 10
days after mailing, to the fullest extent permitted by law), and the Company
hereby authorizes and directs the Process Agent to accept on its behalf such
service. The Company hereby agrees that failure of the Process Agent to give
notice to the Company, or failure of the Company to receive notice of such
service of process, shall not affect in any way the validity of such service on
the Process Agent or the Company. The Company hereby irrevocably consents, to
the fullest extent permitted by law, to the service of any and all process in
any Related Proceeding in a New York State or federal court sitting in The City
of New York by sending by U.S. registered mail copies of such process to the
Company at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000-0000,
Attn: Xxxxxx X. York (and the Company hereby agrees that such service will be
effective 10 days after the mailing thereof). The Company hereby covenants and
agrees that it shall take any and all reasonable action, including the execution
and filing of any and all documents that may be necessary to continue the
designation of the Process Agent in full force and effect, and to cause
16
the Process Agent to continue to act as such. In addition, the Company hereby
agrees that none of its agreements described in this or the preceding paragraph
shall affect the right of any party to serve legal process in any other manner
permitted by law.
Section 15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original, but all such counterparts will
together constitute one and the same instrument.
Section 16. WAIVER OF JURY TRIAL.
Each of the Company and the agents hereby irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this agreement, the
notes or the transactions contemplated hereby.
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE THIRTY-EIGHT HUNDRED FUND, LLC
By /s/ Xxxxxx X. York
---------------------------
Name: Xxxxxx X. York
Title: CEO
Executed in: Las Vegas, NV
THE BANK OF NEW YORK MELLON, as
Fiscal Agent, Principal Paying Agent,
Calculation Agent, Transfer Agent and
Registrar
By:/s/ Xxxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice Presidnet
THE BANK OF NEW YORK
MELLON, LONDON BRANCH, as a
Paying Agent
By:/s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
18
EXHIBIT A
FORM OF TERMS AND CONDITIONS
1. GENERAL.
(a) This Note is one of a duly authorized issue of Floating
Rates due 2012 (the "NOTES") of the Company, issued pursuant to a
Fiscal Agency
Agreement, dated as of August 17, 2011 (the "
FISCAL AGENCY AGREEMENT"), among
the Company, The Bank of New York Mellon, as fiscal agent, principal paying
agent, calculation agent, registrar and transfer agent, and The Bank of New York
Mellon, as a paying agent. Capitalized terms used but not defined herein shall
have the meanings given to them in the
Fiscal Agency Agreement.
(b) The holders of the Notes shall be entitled to the benefits
of, be bound by, and be deemed to have notice of, all the provisions of the
Fiscal Agency Agreement. Copies of the
Fiscal Agency Agreement are on file and
may be inspected at the corporate trust office of the Fiscal Agent in The City
of New York and at the offices of the paying agents appointed from time to time
pursuant to the
Fiscal Agency Agreement. If the terms of the
Fiscal Agency
Agreement contradict the terms of the Notes, the terms of the Notes shall
govern.
2. PRINCIPAL, INTEREST AND MATURITY.
(a) The Notes shall be limited to the aggregate principal
amount of U.S.$200,000,000 (except as otherwise provided under Section 5 below).
(b) In the event any Interest Payment Date is not a Business
Day, the Interest Payment Date shall be postponed to the following Business Day.
However, if the postponement would cause the day to fall in the next calendar
month, the Interest Payment Date will instead be brought forward to the
immediately preceding Business Day. The amount of interest payable on the Notes
shall be computed on the basis of a 360-day year and the actual number of days
elapsed. A "BUSINESS DAY" shall mean any day other than a Saturday or Sunday or
other day on which banking institutions in the city of New York are authorized
or required by law or executive order to remain closed, or a day on which
dealings in deposits in U.S. dollars are not transacted in the London interbank
market.
(c) The interest rate applicable during each quarterly
Interest Period shall be equal to the U.S. dollar three-month LIBOR on the LIBOR
Determination Date for such Interest Period plus 2.00% per annum. "Interest
Period" means any period from (and including) an Interest Payment Date (or, in
the case of the initial Interest Period, the date of issuance of the Notes) to
(but excluding) the next succeeding Interest Payment Date (or if earlier, the
Maturity Date). "LIBOR" means, with respect to any Interest Period, the rate
(expressed as a percentage per annum) for deposits in U.S. dollars having the
relevant maturity commencing on the first day of that Interest Period that
appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on the
LIBOR Determination Date for that Interest Period. If such
rate does not appear on the Reuters Screen LIBOR01 Page, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars for the
relevant maturity commencing on the first day of that Interest Period and in an
aggregate principal amount of not less than $1,000,000 are offered to prime
banks in the London interbank market by four major banks in the London interbank
market selected by the Calculation Agent (after consultation with the Company),
at approximately 11:00 a.m., London time on the LIBOR Determination Date for
that Interest Period. The Calculation Agent will request the principal London
office of each of such banks to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR with respect to that Interest Period will be
the arithmetic mean (rounded upward if necessary to the nearest whole multiple
of 0.00001%) of such quotations. If fewer than two quotations are provided,
LIBOR with respect to that Interest Period will be the arithmetic mean (rounded
upward if necessary to the nearest whole multiple of 0.00001%) of the rates
quoted by three major banks in New York City selected by the Calculation Agent
(after consultation with the Company), at approximately 11:00 a.m., New York
City time, on the first day of that Interest Period for loans in U.S. dollars to
leading European banks for the relevant maturity commencing on the first day of
that Interest Period and in an aggregate principal amount of not less than
$1,000,000. However, if fewer than three banks selected by the Calculation Agent
to provide quotations are quoting as described above, LIBOR for that Interest
Period will be the same as LIBOR as determined for the previous Interest Period.
The establishment of LIBOR for each Interest Period by the Calculation Agent
shall (in the absence of manifest error) be final and binding. For the purposes
of this definition, "Calculation Agent" means The Bank of New York Mellon,
acting as calculation agent; "LIBOR Determination Date" means the second London
Business Day immediately preceding the first day of the relevant Interest
Period; a "London Business day" is any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market; "Reuters Screen LIBOR01
Page" means the display designated on the Reuters Screen LIBOR01 Page (or such
other page as may replace the Reuters Screen LIBOR01 Page on the service or such
other service as may be nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates for U.S. Dollar deposits).
(d) The Notes will mature and will be repaid at 100% of their
principal amount (unless previously redeemed) plus accrued and unpaid interest
through the date thereof, 364 days after issuance (the "MATURITY DATE").
3. STATUS OF THE NOTES.
The Notes shall constitute general, direct, unconditional and
unsecured indebtedness of the Company and shall rank PARI PASSU without any
preference among themselves, with all other present and future unsecured and
unsubordinated obligations of the Company.
4. FORM, DENOMINATION AND TITLE.
The Notes are issuable in fully registered form, without
coupons, in denominations of U.S.$100,000 or any integral multiple of
U.S.$100,000 in excess thereof (an "AUTHORIZED DENOMINATION").
2
The Notes, and transfer thereof, shall be registered as
provided in Section 5 below and in the
Fiscal Agency Agreement. A person in
whose name a Note shall be registered in the Register may (to the fullest extent
permitted by law) be treated at all times, by all persons and for all purposes
as the absolute owner of such Note regardless of any notice of ownership, theft
or loss or of any writing thereon.
5. REPLACEMENT, EXCHANGE AND TRANSFER.
(a) If any Note shall become mutilated or defaced or be
destroyed, lost or stolen, the Fiscal Agent shall authenticate and deliver a new
Note on such terms as the Company and the Fiscal Agent may require, in exchange
and substitution for the mutilated or defaced Note or, in lieu of and in
substitution for the destroyed, lost or stolen Note. In every case of
mutilation, defacement, destruction, loss or theft, the applicant for a
substitute Note shall furnish the Company and the Fiscal Agent with such
indemnity as the Company and the Fiscal Agent may require and evidence to their
satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof. In every case of mutilation or defacement of a Note, the holder shall
surrender to the Fiscal Agent the Note so mutilated or defaced. In addition,
prior to the issuance of any substitute Note, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Fiscal Agent) connected therewith. If any Note, which has
matured or been redeemed, or which will mature within 15 calendar days or for
which notice of redemption has been given, shall become mutilated or defaced or
be apparently destroyed, lost or stolen, the Company may pay or authorize
payment of the same without issuing a substitute Note.
(b) Upon the terms and subject to the conditions set forth in
the Fiscal Agency Agreement and subject to Section 5(e) below, a Note or Notes
may be exchanged for a Note or Notes of equal aggregate principal amount in the
same or different authorized denominations as may be requested by the holder by
surrender of such Note or Notes at the office of the Registrar, or at the office
of any transfer agent, together with a written request for the exchange.
(c) No Note or any interest therein shall be transferable
other than by operation of law as a result of the death, divorce, bankruptcy or
incompetency of a holder of such Notes and any transfer in violation of these
provisions shall be void and of no effect. Subject to the foregoing sentence and
Section 5(e) below, upon the terms and subject to the conditions set forth in
the Fiscal Agency Agreement, a Note may be transferred in whole or in part in an
authorized denomination by the surrender of the Note for registration of
transfer at the office of the Registrar or at the office of any transfer agent,
duly endorsed by, or accompanied by a written instrument of transfer in lieu of
endorsement in form satisfactory to the Company and the Registrar or such
transfer agent, as the case may be, duly executed by the holder or holders
thereof or its attorney-in-fact or attorneys-in-fact duly authorized in writing.
(d) The costs and expenses of effecting any exchange or
registration of transfer pursuant to the foregoing provisions, except for the
expenses of delivery by other than regular mail (if any) and except, if the
Company shall so require, the payment of a sum sufficient to
3
cover any tax or other governmental charge or insurance charges that may be
imposed in relation thereto, will be borne by the Company.
(e) Any transfer or exchange shall be registered by the
Registrar in the Register. Notwithstanding the foregoing, the Registrar or the
Fiscal Agent, as the case may be, shall not register the transfer or exchange of
Notes for a period of 15 calendar days preceding the due date for any payment of
principal of or interest on the Notes.
6. CERTAIN COVENANTS OF THE COMPANY.
So long as any Note remains outstanding, the Company agrees as
follows:
(a) To maintain its registration with the U.S. Securities and
Exchange Commission (the "COMMISSION") as a closed-end management investment
company (as defined under the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT")) and to observe its obligations and duties as a
registered investment company under the Investment Company Act;
(b) To comply with Applicable Law;
(c) To not voluntarily incur any indebtedness or liabilities
other than the following (the indebtedness and liabilities described in clauses
(i) through (v), collectively, the "PERMITTED LIABILITIES"):
(i) indebtedness and liabilities pursuant to the Notes or the
related Fiscal Agency Agreement;
(ii) indebtedness and liabilities pursuant to any investment
advisory agreement, administration agreement, custodial
agreement, transfer agent agreement, placement agent agreement
or otherwise incurred in connection with the conduct of the
Company's business, including the management of assets in
accordance with the Portfolio Guidelines;
(iii) indebtedness and liabilities for expenses of formation
and all other expenses and obligations incident to the
operation or management of the Company;
(iv) indebtedness and liabilities in respect of Company Taxes
of the Company not yet due and payable or Company Taxes of the
Company due and payable that the Company is contesting in good
faith; and
(v) indebtedness and liabilities in respect of borrowed money
provided that at no time will the outstanding principal amount
of indebtedness or liabilities of the Company in respect of
borrowed money (including in respect of the Notes) exceed 20%
of the Net Asset Value at such time (it being understood for
purposes of this covenant that customary settlement
obligations in respect of
4
financial transactions shall not be considered indebtedness or
liabilities in respect of borrowed money).
(d) To do all things necessary to preserve and keep in full
force and effect its existence, rights and franchises, including, at all times:
(i) having a board of directors;
(ii) filing its own Company Tax returns and paying any
Company Taxes so required to be paid under Applicable Law;
(iii) observing Delaware limited liability company
formalities;
(iv) maintaining adequate capital in light of its
contemplated business purpose, transactions and liabilities;
and
(v) causing its officers, agents and other representatives to
act at all times with respect to the Company consistently and
in furtherance of the foregoing and in the best interests of
the Company;
(e) To not amend the Portfolio Guidelines without the consent
of the persons entitled to vote a majority in aggregate principal amount of the
Notes then Outstanding;
(f) To make no investments other than investments permitted
under the Portfolio Guidelines;
(g) To make all necessary filings with and submissions to the
Commission and as otherwise required by Applicable Law;
(h) To not create, assume, suffer to exist, or take any action
which would result in the creation of any Lien on any of the Company's assets
other than Liens for Company Taxes not yet due or payable or being contested in
good faith and Liens customarily created or arising in connection with
transactions permitted under the Portfolio Guidelines;
(i) To maintain a Net Asset Value at any time of not less
than four billion dollars (U.S.$4,000,000,000); and
(j) To notify each registered holder of Notes, Barclays Wealth
and Barclays Capital (both being divisions of Barclays Bank PLC) of any Event of
Default.
For purposes of these Terms:
"AFFILIATE" means, with respect to any Person, any other
Person that controls, is controlled by, or is under common control with, such
Person, and any officer, director, general
5
partner, member or trustee of, or any Person serving in a similar capacity with
respect to, such Person. For purposes of this definition and Section 7(d),
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, through the right or power to appoint a
majority of the board of directors of such Person, by contract or otherwise, and
"controlled by" and "under common control" have corresponding meanings. For the
avoidance of doubt, an entity that is a disregarded entity for US federal income
tax purposes shall be treated as an "Affiliate" of the Person that is treated as
the owner of such entity for US federal income tax purposes and of all such
Person's other Affiliates.
"APPLICABLE LAW" means any law, rule, regulation or official
code, consent decree, constitution, decree, directive, enactment, guideline,
injunction, interpretation, judgment, order, ordinance, policy statement,
proclamation, promulgation, requirement, rule of law, settlement agreement,
statute or writ of any governmental authority, whether domestic or foreign, to
which the Person in question is subject or by which it or any of its property is
bound.
"COMPANY TAXES" means all US federal, state or local taxes and
all non-US taxes and other assessments of a similar nature, in each case,
imposed upon or assessed against the Company, including income, profits, gains,
gross receipts, windfall profits, value added, severance, property, production,
sales, use, duty, stamp duty, license, excise, franchise, employment,
withholding or similar taxes, together with any interest, additions or penalties
with respect thereto and any interest in respect of such additions or penalties;
and "COMPANY TAX", when used as a noun, means any one or more Company Taxes and,
when used as an adjective, means of or pertaining to Company Taxes.
"LIEN" means any mortgage, lien, encumbrance, security
interest, covenant, condition, restriction (including restrictions on voting
rights or rights of disposition), claim, charge, option, right of first refusal,
right of use and any other matter affecting title (including any assignment or
conditional assignment or any charge upon property purchased under conditional
sales or other title retention agreements).
"NET ASSET VALUE" means, at any time, an amount equal to the
gross assets minus the aggregate amount of liabilities calculated in accordance
with generally accepted accounting principles in the United States.
"PORTFOLIO GUIDELINES" means the "Investment Objective and
Policies" of the Company as described in Item 8.2 (excluding the section
captioned "Fundamental Investment Restrictions") and Item 17 of the Company's
Registration Statement on Form N-2 filed on May 30, 2008 with the Commission as
such Registration Statement may be amended from time to time or as described in
the Company's annual or semi-annual reports to shareholders of the Company
subsequent to that date; PROVIDED that any amendment to the Portfolio Guidelines
shall be subject to the consent of the persons entitled to vote a majority in
aggregate principal amount of the Notes then Outstanding pursuant to clause (f)
of this Section 6.
7. EVENTS OF DEFAULT.
6
If any of the following events (each, an "EVENT OF DEFAULT")
shall have occurred and be continuing:
(a) Default in any payment of principal on any of the Notes
and the continuance of such default for a period of 7 calendar days;
(b) Default in any payment of interest on any of the Notes
and the continuance of such default for a period of 14 calendar days;
(c) Default in the performance of any other material
obligation under the Notes and the continuance of such default for a period of
30 calendar days after an officer of the Company becomes aware, or in the
exercise of reasonable diligence would have become aware, of the default;
(d) an Insolvency Event with respect to the Company or any
company directly or indirectly controlling the Company; or
(e) any step is taken by the Company with a view to a
moratorium or suspension of payments in relation to the Notes;
then in any such event the holders of at least 25% in aggregate principal amount
of the Notes then Outstanding (as defined in Section 11(c) of the Fiscal Agency
Agreement), so long as such Event of Default is continuing, may by written
demand given to the Company (with a copy to the Fiscal Agent) declare the
principal of and any accrued interest on all Notes then Outstanding to be, and
such principal and any interest shall thereupon become, immediately due and
payable, unless prior to receipt of such demand by the Company all such defaults
shall have been cured; PROVIDED, HOWEVER, that upon the occurrence of an Event
of Default of the type described in clause (d) above relating to the Company,
the principal of and any accrued interest on the Notes shall become immediately
due and payable, without such declaration or notice to the Company. If any Event
of Default described in clauses (a) through (c) or (e) above shall give rise to
a declaration which shall be effective, such Event of Default shall cease to
continue following such declaration and no other Event of Default shall then be
continuing, then such declaration may be rescinded and annulled by the
affirmative vote of the holders of the Notes in accordance with the procedures
set forth in Section 8 below.
For purposes of these Terms:
"INSOLVENCY EVENT" means, with respect to any Person, that
such Person (a) is dissolved (other than pursuant to a solvent consolidation,
amalgamation, restructuring, reorganization or merger); (b) becomes insolvent or
is unable to pay its debts or fails or admits in writing its inability generally
to pay its debts as they become due; (c) makes a general assignment, arrangement
or composition with or for the benefit of its creditors; (d) (i) institutes or
has instituted against it, by a regulator, supervisor or any similar official
with primary insolvency, rehabilitative or regulatory jurisdiction over it in
the jurisdiction of its incorporation or organization or the jurisdiction of its
head or home office, a proceeding seeking a judgment of insolvency or bankruptcy
or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its
7
winding-up or liquidation by it or such regulator, supervisor or similar
official; or (ii) has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented
for its winding-up or liquidation, and such proceeding or petition is instituted
or presented by a person or entity not described in clause (i) above and either
(A) results in a judgment of insolvency or bankruptcy or the entry of an order
for relief or the making of an order for its winding-up or liquidation; or (B)
is not dismissed, discharged, stayed or restrained in each case within 30
calendar days of the institution or presentation thereof; (e) has a resolution
passed for its winding-up, official management or liquidation (other than
pursuant to a solvent consolidation, amalgamation, restructuring, reorganization
or merger); (f) seeks or becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets; (g) has a
secured party take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such
secured party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 calendar days
thereafter; (h) causes or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an analogous effect to any of
the events specified in subsections (a) through (g) of this definition
(inclusive) other than, for the avoidance of doubt, any such event that occurs
pursuant to a solvent consolidation, amalgamation, restructuring, reorganization
or merger; or (i) takes any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the foregoing acts; and
"PERSON" means any individual, trustee, receiver, conservator,
custodian, corporation, limited liability company, partnership (whether general
or limited), association, company, joint-stock company, trust, business trust,
estate, joint venture, governmental authority, or any other entity, in its own
or any representative capacity.
8. MODIFICATIONS, AMENDMENTS AND WAIVERS.
(a) A meeting of holders of Notes may be called at any time
and from time to time to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by the Fiscal Agency
Agreement or the Notes to be made, given or taken by holders of Notes or to
modify, amend or supplement the terms of the Notes or the Fiscal Agency
Agreement as hereinafter provided. The Company may at any time call a meeting of
holders of Notes for any such purpose to be held at such time and at such place
as the Company shall determine. Notice of every such meeting, setting forth the
time and the place of such meeting and in reasonable detail the action proposed
to be taken at such meeting, shall be given as provided in Section 15 below, not
less than 30 nor more than 60 calendar days prior to the date fixed for the
meeting. In case, at any time, the Company or the holders of at least 10% in
aggregate principal amount of the Outstanding (as defined in Section 11(c) of
the Fiscal Agency Agreement) Notes shall, after the occurrence and during the
continuance of any Event of Default or any event that with notice or lapse of
time or both could constitute an Event of Default under the Notes, have
requested in writing to the Fiscal Agent to call a meeting of the holders of
Notes for any such purpose, by written request setting forth the time and place
of, and in reasonable detail the action proposed to be taken at, the meeting,
the Fiscal
8
Agent shall call such meeting for such purposes by giving notice, as
provided in Section 15 below, of such time and place of, and in reasonable
detail the action proposed to be taken at, such meeting. Holders of Notes may
attend such meeting in person or by telephone.
(b) To be entitled to vote at any meeting of holders of Notes,
a person shall be a holder of Outstanding Notes or a person duly appointed by an
instrument in writing as proxy for such holder. The persons entitled to vote a
majority in aggregate principal amount of the Outstanding Notes shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of the holders,
be dissolved. In any other case, the meeting may be adjourned for a period of
not less than 10 calendar days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 calendar days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given in the same manner as provided in Section
8(a) above.
Notice of the reconvening of any adjourned meeting shall state
expressly that, at the reconvening of any meeting adjourned for lack of a
quorum, the persons entitled to vote 25% in aggregate principal amount of the
Outstanding Notes shall constitute a quorum for the taking of any action set
forth in the notice of the original meeting. Any meeting of holders of Notes at
which a quorum is present may be adjourned from time to time by a vote of a
majority in aggregate principal amount of the Outstanding Notes represented at
the meeting, and the meeting may be held as so adjourned without further notice.
At a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid, any resolution and all matters shall be effectively passed
or decided by the persons entitled to vote not less than a majority in aggregate
principal amount of the Outstanding Notes represented and voting.
(c) With (i) the affirmative vote, in person or by proxy
thereunto duly authorized in writing, of the holders of not less than a majority
in aggregate principal amount of the Outstanding Notes represented at a meeting
duly called and held as specified above, or (ii) the written consent of the
holders of a majority in aggregate principal amount of the Outstanding Notes,
the holders may rescind the declaration of an Event of Default in accordance
with Section 7 or the Company and the Fiscal Agent may, upon agreement between
themselves, modify, amend or supplement the terms of the Notes or, insofar as
affects the Notes, the Fiscal Agency Agreement, in any way, and such holders may
make, take or give any request, demand, authorization, direction, notice,
consent, waiver or other action provided by the Fiscal Agency Agreement or the
Notes to be made, given or taken by holders of the Notes; provided, however,
that no such action may, without the consent or affirmative vote of the holder
of each Note affected thereby: (A) change the due date for the payment of the
principal of, or any installment of interest on, any Note, (B) reduce the
aggregate principal amount of any Note, or the portion of such aggregate
principal amount which is payable upon acceleration of the maturity of such
Note, or the interest rate thereon, (C) change the currency in which any payment
in respect of any Note is payable, (D) change the manner in which the amount of
interest is calculated on any Note, (E) reduce the proportion of the aggregate
principal amount of the Notes the vote or consent of the holders of which is
necessary to modify, amend or supplement the Fiscal Agency
9
Agreement or the terms and conditions of the Notes or to make, take or give any
request, demand, authorization, direction, notice, consent, waiver or other
action provided hereby or thereby to be made, taken or given, or (F) change the
obligation of the Company to pay Additional Amounts (as defined in Section 13
hereof). Any such modification, amendment or supplement shall be binding on the
holders of Notes.
(d) The appointment of any proxy shall be proved by having
the signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or recognized security dealer reasonably
satisfactory to the Company. The holding of a Note shall be proved by the
Register maintained by the Agents in accordance with the Fiscal Agency Agreement
or by a certificate or certificates of the Registrar.
(e) The Company shall appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of persons entitled to vote a majority in aggregate principal
amount of the Outstanding Notes represented at the meeting. At any meeting, each
holder of Notes or proxy shall be entitled to one vote for each U.S.$100,000
aggregate principal amount of the Notes as to which it is a holder or proxy;
PROVIDED that no vote shall be cast or counted at any meeting in respect of any
Note challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to vote
except as a holder of Outstanding Notes or proxy.
(f) The vote upon any resolution submitted to any meeting of
holders of Notes shall be by written ballot on which shall be subscribed the
signatures of the holders or proxies and on which shall be inscribed an
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Notes entitled to be voted by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in triplicate of the
proceedings of each meeting of holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was published and mailed as provided
above. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one shall be delivered to each of the Company and
the Fiscal Agent, the latter to have attached thereto the ballots voted at the
meeting and to be preserved by the Fiscal Agent. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
(g) Notwithstanding the foregoing, the Company and the Fiscal
Agent may, upon agreement between themselves, without the vote or consent of any
holder of Notes, modify, amend or supplement the Fiscal Agency Agreement or the
Notes for the purpose of (i) adding to the covenants of the Company for the
benefit of the holders of Notes, (ii) surrendering any rights or power conferred
upon the Company in a manner which shall not adversely affect the interest of
any holder of Notes in any material respect, (iii) securing the Notes pursuant
to the requirements of the Notes or otherwise, (iv) correcting any defective
provision contained in
10
the Fiscal Agency Agreement or in the Notes in a manner which shall not
adversely affect the interest of any holder of Notes in any material respect or
(v) otherwise amending the Fiscal Agency Agreement or the Notes in a manner
which shall not adversely affect the interest of any holder of Notes in any
material respect. The Fiscal Agent will notify each holder of Notes of any such
change and as soon as reasonably practicable will make any such modified,
amended or supplemented documents available to them for review.
9. PAYMENTS AND AGENTS.
(a) The principal of the Notes and interest due thereon at
maturity will be payable in immediately available funds against surrender of
such Notes at the office of the Paying Agent in The City of New York or, subject
to applicable laws and regulations and unless an application is made as
described below, at the office of any paying agent by United States dollar check
drawn on, or by transfer to a United States dollar account maintained by the
holder with, a bank located in The City of New York. Unless an application is
made as described below, payment of interest on a Note will be made to the
person in whose name such Note is registered at the close of business on the
Regular Record Date (as defined below) immediately preceding the related
Interest Payment Date (as defined on the face of the Notes). "REGULAR RECORD
DATE" means, with respect to any Interest Payment Date, the fifteenth day prior
to such Interest Payment Date (whether or not a Business Day). Upon application
of any holder to a paying agent not later than the relevant Regular Record Date,
payment of such principal of or interest on any Note will be made by wire
transfer to a United States dollar account maintained by such holder.
(b) All moneys paid by or on behalf of the Company to the
Paying Agent or any other paying agent for the payments of the principal of or
interest on any Note which remain unclaimed at the end of two years after such
principal or interest shall have become due and payable will be repaid to the
Company (including all interest accrued, if any, with respect to any such
amounts) upon written request, and the holder of such Note will thereafter look
only to the Company for payment. Upon such repayment, all liability of the
Paying Agent and any other paying agent with respect thereto shall cease,
without, however, limiting in any way the obligation of the Company in respect
of the amount so repaid, subject to the provisions of Section 14 below.
(c) The Company agrees that so long as any Note remains
outstanding, it will maintain a paying agent in London for payments on Notes and
a paying agent and registrar having a specified office in The City of New York.
The Company initially appoints, subject to the terms and conditions in the
Fiscal Agency Agreement, The Bank of New York Mellon, as registrar, principal
paying agent and transfer agent for the Notes and The Bank of New York Mellon,
as a paying agent for the Notes. Subject to the foregoing, the Company shall
have the right at any time to terminate any such appointment and to appoint any
other agents in such other places as it may deem appropriate upon notice in
accordance with Section 15 below and in accordance with the terms and conditions
set forth in the Fiscal Agency Agreement.
(d) Payments in respect of the Notes shall be made in such
currency of the United States of America as at the time of payment shall be
legal tender for the payment of
11
public and private debts.
(e) In acting under the Fiscal Agency Agreement and in
connection with the Notes, each of the Agents and each other paying agent and
transfer agent is acting solely as agent of the Company and does not assume any
obligation toward or relationship of agency or trust for or with the owner or
holder of any Note, except that any funds held by any such agent for payment of
principal of or interest on the Notes shall be held in trust by it and applied
as set forth herein and in the Fiscal Agency Agreement. The obligations of each
of the Agents to the owners or holders of Notes are subject to the immunities
and rights as set forth in the Fiscal Agency Agreement.
10. OPTIONAL REDEMPTION, PURCHASE AND CANCELLATION.
The Company may, at its option and subject to the terms and
conditions of the Fiscal Agency Agreement, redeem the Notes in whole but not in
part at any time upon 30 calendar days' advance written notice to the holders
thereof at a price equal to the sum of (i) 100% of the aggregate principal
amount of the Notes, (ii) accrued and unpaid interest thereon through the date
of redemption and (iii) if the date of redemption is not an Interest Payment
Date, the Intra-Period Broken Funding Amount. The Company or any of its
Affiliates may at any time purchase the Notes at any price in the open market,
if any, or otherwise. The Notes so purchased by the Company may, at the
Company's discretion, be held, resold or surrendered to the Fiscal Agent for
cancellation. The "INTRA-PERIOD BROKEN FUNDING AMOUNT" shall mean with respect
to any redemption an amount (which, for the avoidance of doubt, may be a
positive or negative number) equal to the product of (A) the aggregate principal
amount to be redeemed and (B) X minus Y where:
"X" equals the fraction (1 + OL x n1) / (1 + NL x n2);
"Y" equals 1 + OL x (n1 - n2);
"n1" equals the number of days in the current Interest Period
divided by 360;
"n2" equals the number of days remaining in the current
Interest Period as of the date of redemption divided by 360;
"OL" equals LIBOR as in effect for the current Interest
Period; and
"NL" equals LIBOR for the period from (and including) the date
of prepayment to (but excluding) the next Interest Payment Date (or if earlier,
the Maturity Date).
11. PARTIAL RATABLE REDEMPTION.
If the Company does not have the funds legally available for
the redemption of, or is otherwise unable to redeem all the Notes to be redeemed
on any redemption date, the Company will redeem on such redemption date that
number of Notes for which it has legally available funds ratably on the basis of
the redemption price set out in Section 10. The remainder of the Notes will be
redeemed on the earliest practicable date on which the Company
12
will have funds legally available for the redemption of, or is otherwise able to
redeem, such Notes upon written notice of redemption. If fewer than all Notes
held by any holder are to be redeemed, the notice of redemption mailed to such
holder will specify the number of Notes to be redeemed from such holder, which
may be expressed as a percentage of Notes held on the applicable record date.
12. ASSET COVERAGE.
Immediately after the issuance of the Notes, or any other
class of senior security representing indebtedness, or any other indebtedness or
liability in respect of borrowed money, the Company must have an asset coverage
(as defined in Section 18(h) of the Investment Company Act, an "ASSET COVERAGE")
of at least 300% with respect to all outstanding indebtedness. To the extent
that the Company does not have such an Asset Coverage at the time of the
declaration of any dividend or distribution upon any class of capital stock of
the Company (after deducting the amount of such dividend or distribution), or at
the time of purchase of any such capital stock, the Company shall not declare
any dividend (except a dividend payable in capital stock of the Company), or
declare any other distribution, upon any class of capital stock of the Company
or purchase any such capital stock. If, on the last Business Day of each of
twelve consecutive calendar months, the Company does not have an Asset Coverage
of at least 100% with respect to all outstanding indebtedness, the holders of
the Notes, voting as a class, shall be entitled to elect at least a majority of
the members of the board of directors of the Company. Such voting right shall
continue until the Asset Coverage with respect to all outstanding indebtedness
is at least 110% or more on the last Business Day of each of three consecutive
calendar months.
13. ADDITIONAL AMOUNTS.
(a) All payments by the Company in respect of the Notes shall
be made free and clear of, and without deduction or withholding for or on
account of any present or future taxes, duties, assessments, or other
governmental charges of whatever nature imposed or levied by the authorities of
any jurisdiction ("WITHHOLDING TAXES"), unless the Company is compelled by law
to deduct or withhold such taxes, duties, assessments, or governmental charges.
In such event, the Company shall make such deduction or withholding, make
payment of the amount so deducted or withheld to the appropriate governmental
authority and forthwith pay such additional amounts ("ADDITIONAL AMOUNTS") as
may be necessary to ensure that the net amounts receivable by the holders of the
Notes after such deduction or withholding shall equal the payment which would
have been receivable in respect of the Notes in the absence of such deduction or
withholding. The Company shall cause to be delivered, or, in the case of notes
held by an institution that is holding the Notes on behalf of a beneficial
owner, to use its best efforts to cause the institution to deliver, to the
Paying Agent all forms necessary to ensure that a minimal rate of withholding
applies to all payments by the Company in respect of the Notes to the holders or
beneficial holders of the Notes, such as an IRS Form W-8IMY and any attached IRS
Form W-8BEN, or a statement of withholding or allocation, as necessary.
Notwithstanding the foregoing, no such Additional Amounts shall be payable:
(i) if such Withholding Taxes would not have been imposed but
for (A) a present or former connection between the
jurisdiction imposing the tax or any
13
political subdivision or taxing authority thereof or therein
and the holder or beneficial holder of the relevant Note
including, without limitation, a connection arising from
such holder or beneficial holder having been a citizen,
domiciliary, or resident of such jurisdiction or such
political subdivision or taxing authority, being organized
in such jurisdiction or such political subdivision or taxing
authority, or having had a permanent establishment, branch
or other fixed place of business therein (but excluding a
connection arising solely from such holder or beneficial
holder having executed, delivered, performed its obligations
or received payment under the Fiscal Agency Agreement or
this Note), or (B) the failure of the holder or beneficial
holder of the relevant Note to comply with any reasonable
certification, identification or other reporting requirement
(or such certifications, identifications or reporting
proving to be false or incorrect) concerning the
nationality, residence, identity or connection with such
jurisdiction, or any political subdivision or taxing
authority thereof or therein, of such holder or beneficial
holder, if compliance is required by such jurisdiction, or
any political subdivision or taxing authority thereof or
therein, as a precondition to exemption from such deduction
or withholding; or
(ii) in respect of any Withholding Taxes imposed by any
jurisdiction, if such Withholding Taxes were imposed by reason
of the failure of the holder or beneficial holder to present
such holder's Note for payment (where such presentation is
required) within 30 calendar days after the date on which such
payment thereof became due and payable or is duly provided for
and notice thereof is given to the holder, whichever occurs
later.
(b) Whenever there is mentioned, in any context, the payment
of the principal of or interest on, or any amounts in respect of, a Note, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof, and express mention of the payment of Additional
Amounts (if applicable) shall not be construed as excluding Additional Amounts
where such express mention is not made.
(c) Notwithstanding Section 13(a)(i) and (ii) above,
Additional Amounts shall be payable in the event Withholding Taxes are imposed
by any jurisdiction (other than the United States or any political subdivision
or taxing authority thereof) if such Withholding Taxes would not have been
imposed in the absence of any connection between the Company or the Paying Agent
and such jurisdiction.
14. PRESCRIPTION.
All claims against the Company for payment of principal of or
interest (including Additional Amounts) on or in respect of the Notes shall be
prescribed unless made within five years from the date on which the relevant
payment first became due.
15. NOTICES.
14
Notices will be mailed to holders of Notes at their registered
addresses in the Register and shall be deemed to have been given on the date of
such mailing. All notices of meetings of holders of Notes under Section 8 above
shall specify the time and place of, and in reasonable detail the action
proposed to be taken at, such meeting.
Where applicable, notices will also be mailed to Barclays
Wealth at Xxx Xxxxxxxxx Xxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, Attention: Head
of Balance Sheet, Managing Director, fax: x00 00 0000 0000 and Barclays Capital
at x/x Xxxxxxxxxx Xxxxxxx Xxxxxxx, 0 The North Colonnade, Canary Wharf, Xxxxxx
X00 0XX, Xxxxxx Xxxxxxx, Attention: Head of Portfolio Management Unit, fax: +44
00 0000 0000, and will be deemed to have been given upon receipt.
16. GOVERNING LAW AND JURISDICTION.
(a) Upon issuance of the Notes, performance and enforcement of
obligations evidenced thereby shall be governed by, and interpreted in
accordance with, the laws of the State of New York.
(b) To the fullest extent it may effectively do so, the
Company hereby (i) irrevocably submits to the non-exclusive jurisdiction of any
New York State or federal court sitting in The City of New York in any suit,
action or proceeding arising out of or relating to the Notes (a "RELATED
PROCEEDING") and (ii) the Company hereby irrevocably agrees that all claims in
respect of any Related Proceeding may be heard and determined in such New York
State or federal court. The Company hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of any Related Proceeding and any objection to any Related
Proceeding whether on the grounds of venue, residence or domicile. The Company
hereby agrees, to the full extent it may effectively do so, that a final
judgment in any Related Proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(c) The Company hereby appoints and agrees to maintain
Corporation Services Company as the person for the time being and from time to
time acting as, or discharging the function of, agent for service of process,
with an office on the date hereof at 1180 Avenue of the Americas, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000, as its agent to receive on behalf of the Company and its
property service of copies of the summons and complaint and any other process
which may be served in any Related Proceeding in such New York State or federal
court sitting in The City of New York (the "PROCESS AGENT"). The Company hereby
agrees that such service may be made by U.S. registered mail, to the fullest
extent permitted by law, or by delivering by hand a copy of such process to the
Company in care of the Process Agent at the address specified above for the
Process Agent (and the Company hereby agrees that such service will be effective
10 calendar days after the mailing, to the fullest extent permitted by law, or
delivery by hand of such process to the office of the Process Agent), and the
Company hereby authorizes and directs the Process Agent to accept on its behalf
such service. The Company hereby agrees that failure of the Process Agent to
give notice to the Company, or failure of the Company to receive notice, of such
service of process shall not affect in any way
15
the validity of such service on the Process Agent or the Company. The Company
hereby also irrevocably consents, to the fullest extent permitted by law, to the
service of any and all process in any Related Proceeding in a New York State or
federal court sitting in The City of New York by sending by U.S. registered mail
copies of such process to the Company at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxx 00000-0000, Attn: Xxxxxx X. York (and the Company hereby
agrees that such service will be effective 10 calendar days after mailing
thereof). The Company hereby covenants and agrees that it shall take any and all
reasonable action, including the execution and filing of any and all documents
that may be necessary to continue the designation of the Process Agent in full
force and effect, and to cause the Process Agent to continue to act as such. In
addition, the Company hereby agrees that none of its agreements described in
this or the preceding paragraph shall affect the right of any party to serve
legal process in any other manner permitted by law.
17. DEFINITIONS.
As used in this Note, each of the following terms shall have
the meaning set forth in the section of this Note set forth opposite such term
in the table below, unless the context otherwise requires:
Additional Amounts Section 13
Affiliate Section 6
Applicable Law Section 6
Asset Section 12
Coverage
authorized denomination Section 4
Business Day Section 2(b)
Calculation Section 2(c)
Agent
Company Face of Note
Commission Section 6(b)
Company Taxes Section 6
Event of Default Section 7
Fiscal Agency Agreement Section 1(a)
Insolvency Event Section 7
Interest Payment Date Face of Note
Interest Section 2(c)
Period
Intra-Period Broken
Funding Section 10
Amount
Investment Company Act Section 6(b)
LIBOR Section 2(c)
LIBOR Determination Date Section 2(c)
Lien Section 6
London Business Day Section 2(c)
Maturity Date Section 2(d)
Net Asset Section 6
Value
Notes Section 1(a)
Permitted Liabilities Section 6(d)
16
Person Section 7
Portfolio Guidelines Section 6
Regular Record Date Section 9(a)
Related Proceeding Section 16(b)
Reuters Screen LIBOR01 Page Section 2(c)
Securities Act Face of Note
Withholding Taxes Section 13
17
EXHIBIT B
FORM OF GLOBAL NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER SUCH LAWS. THIS SECURITY SHALL NOT BE
TRANSFERABLE OTHER THAN BY OPERATION OF LAW AS A RESULT OF THE DEATH, DIVORCE,
BANKRUPTCY OR INCOMPETENCY OF A HOLDER.
[No. R__] U.S.$_____________*
[No. S__]
ISIN No. [___________________]
*Denominations of any integral multiple of U.S.$100,000 above U.S.$100,000.
GLOBAL NOTE
The Thirty-Eight Hundred Fund, LLC
___ Notes due 20[ ]
The Thirty-Eight Hundred Fund, LLC (the "COMPANY"), for value
received, hereby promises to pay to ________________, or registered assigns, as
common depositary for Clearstream Banking, SOCIETE ANONYME and/or Euroclear Bank
S.A./N.V., on ____, 20__ (or earlier redemption) upon surrender hereof, the
principal sum of ___________________ (U.S.$ ___________), and to pay interest
thereon from ______, 20__ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly on _____, _____, _____
and _____ (each, an "INTEREST PAYMENT DATE"), commencing _____, 20__, until the
principal hereof is paid or duly provided for. The interest rate applicable
during each quarterly Interest Period (as such term is defined in Section 2(c)
of the Terms and Conditions of the Notes attached hereto) shall be equal to the
U.S. dollar three-month LIBOR on the LIBOR Determination Date for such Interest
Period plus ______% per annum.
The interest payable on any such Interest Payment Date will,
subject to certain conditions set forth in the Terms and Conditions of the Notes
attached hereto, be paid to the person in whose name this Note is registered at
the close of business on the Regular Record
Date (as such term is defined in Section 9(a) of the Terms and Conditions of the
Notes attached hereto) preceding such Interest Payment Date.
Reference is made to the further provisions set forth under
the Terms and Conditions of the Notes attached hereto. Such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
The statements set forth in the legend, if any, above are an
integral part of the terms of this Note and by acceptance hereof each holder of
this Note agrees to be subject to and bound by the terms and provisions set
forth in such legend.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by a duly authorized signatory of the Fiscal Agent under the Fiscal
Agency Agreement referred to in the Terms and Conditions of the Notes attached
hereto.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed.
Dated:
THE THIRTY-EIGHT HUNDRED FUND, LLC
By
--------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Fiscal Agency Agreement.
THE BANK OF NEW YORK MELLON, as Fiscal Agent
By
--------------------------------------
Name:
Title:
2
EXHIBIT C
FORM OF DEFINITIVE NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER SUCH LAWS. THIS SECURITY SHALL NOT BE
TRANSFERABLE OTHER THAN BY OPERATION OF LAW AS A RESULT OF THE DEATH, DIVORCE,
BANKRUPTCY OR INCOMPETENCY OF A HOLDER.
No. R- U.S.$_____________*
ISIN No. [___________________]
*Denominations of any integral multiple of U.S.$100,000 above U.S.$100,000.
The Thirty-Eight Hundred Fund, LLC
___ Notes due 20[ ]
The Thirty-Eight Hundred Fund, LLC (the "COMPANY"), for value
received, hereby promises to pay to _________________, or registered assigns, as
common depositary for Clearstream Banking, SOCIETE ANONYME and/or Euroclear Bank
S.A./N.V., on ____, 20__ (or earlier redemption) upon surrender hereof, the
principal sum of ___________________ (U.S.$ ___________), and to pay interest
thereon from ______, 20__ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly on _____, _____, _____
and _____ (each, an "INTEREST PAYMENT DATE"), commencing _____, 20__, until the
principal hereof is paid or duly provided for. The interest rate applicable
during each quarterly Interest Period (as such term is defined in Section 2(c)
of the Terms and Conditions of the Notes attached hereto) shall be equal to the
U.S. dollar three-month LIBOR on the LIBOR Determination Date for such Interest
Period plus ______% per annum.
The interest payable on any such Interest Payment Date will,
subject to certain conditions set forth in the Terms and Conditions of the Notes
attached hereto, be paid to the person in whose name this Note is registered at
the close of business on the Regular Record Date (as such term is defined in
Section 9(a) of the Terms and Conditions of the Notes attached hereto) preceding
such Interest Payment Date.
Reference is made to the further provisions set forth under
the Terms and
Conditions of the Notes attached hereto. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
The statements set forth in the legend, if any, above are an
integral part of the terms of this Note and by acceptance hereof each holder of
this Note agrees to be subject to and bound by the terms and provisions set
forth in such legend.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by a duly authorized signatory of the Fiscal Agent under the Fiscal
Agency Agreement referred to in the Terms and Conditions of the Notes attached
hereto.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed.
Dated:
THE THIRTY-EIGHT HUNDRED FUND, LLC
By
--------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Fiscal Agency Agreement.
THE BANK OF NEW YORK
MELLON, as Fiscal Agent
By
--------------------------------------
Name:
Title:
2
