RESTATED ARTICLES OF INCORPORATION
OF
INTERNATIONAL LEASE FINANCE CORPORATION,
a California corporation
The undersigned,
Alan H. Lund and Pamela S. Hendry, hereby certify that they are the
Vice Chairman and Chief Financial Officer and Senior Vice President
and Treasurer, respectively, of International Lease Finance
Corporation (the “Company”), a California corporation,
and do further certify that:
1. On
November 5, 1992, the Company filed with the Secretary of
State of the State of California (“California Secretary of
State”) its Restated Articles of Incorporation;
2. On
December 9, 1992, the Company filed with the California
Secretary of State its Certificate of Determination of Preferences
of Preferred Stock (the “Certificate of Determination”)
for Market Auction Preferred Stock, Series A
(“Series A MAPS”) and its Certificate of
Determination for Market Auction Preferred Stock, Series B
(“Series B MAPS”);
3. On
November 18, 1993, the Company filed with the California
Secretary of State its Certificates of Determination for Market
Auction Preferred Stock, Series C (“Series C
MAPS”) and Market Auction Preferred Stock, Series D
(“Series D MAPS”);
4. On
January 26, 1995, the Company filed with the California
Secretary of State its Certificates of Determination for Market
Auction Preferred Stock, Series E (“Series E
MAPS”) and Market Auction Preferred Stock, Series F
(“Series F MAPS”);
5. On
November 30, 1995, the Company filed with the California
Secretary of State its Certificates of Determination for Market
Auction Preferred Stock, Series G (“Series G
MAPS”) and Market Auction Preferred Stock, Series H
(“Series H MAPS”);
6. On
December 18, 2001, the Company filed with the California
Secretary of State its Certificate of Determination for
Series A Preferred Stock (the “Series A Preferred
Stock”);
7. On
October 22, 2008, the Company filed with the California
Secretary of State Certificates of Amendment to its Certificates of
Determination for Series C MAPS, Series D MAPS,
Series E MAPS, Series F MAPS, Series G MAPS,
Series H MAPS and Series A Preferred Stock reducing the
number of authorized shares of each such series to zero
(0) shares and as a result, pursuant to Section 401(f) of the
California Corporations Code, such series are no longer in force
and are no longer authorized series of the Company;
8. The
Articles of Incorporation of the Company, as amended to the date of
the filing of this certificate are restated as follows:
FIRST:
The name of the corporation is: INTERNATIONAL LEASE FINANCE
CORPORATION.
SECOND:
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of California other than the banking business, the
trust company business or the practice of a profession permitted to
be incorporated by the California Corporations Code.
THIRD:
The corporation is authorized to issue two classes of shares
designated respectively “Common Stock” and
“Preferred Stock.” The authorized number of shares of
Common Stock is 100,000,000 and the authorized number of shares of
Preferred Stock is 20,000,000.
The
shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is authorized to fix the number
of shares of any series of Preferred Stock and to determine the
designation of any such series. The Board of Directors is also
authorized to determine or alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly
unissued series of Preferred Stock and, within the limits and
restrictions stated in any resolution or resolutions of the Board
of Directors originally fixing the number of shares constituting
any series, to increase or decrease (but not below the number of
shares of such series then outstanding) the number of shares of any
such series subsequent to the issue of shares of that
series.
FOURTH:
The liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under
California law. No amendment, modification or repeal of this
Article FOURTH shall adversely affect any right or protection
that exists at the time of such amendment, modification or
repeal.
FIFTH:
The corporation is authorized to provide indemnification of agents
(as defined in Section 317 of the California Corporations
Code) through bylaw provisions, agreements with agents, vote of
shareholders or disinterested directors or otherwise, in excess of
the indemnification otherwise permitted by Section 317 of the
California Corporations Code, subject only to the applicable limits
set forth in Section 204 of the California Corporations Code
with respect to actions for breach of duty to the corporation and
its shareholders.
SIXTH:
The Certificate of Determination of Preferences of Preferred Stock,
Market Auction Preferred Stock, Series A which is attached
hereto as Exhibit A is hereby incorporated by reference
as Article SIXTH of these Articles of
Incorporation.
SEVENTH:
The Certificate of Determination of Preferences of Preferred Stock,
Market Auction Preferred Stock, Series B which is attached
hereto as Exhibit B is hereby incorporated by reference
as Article SEVENTH of these Articles of
Incorporation.
9. The
foregoing Restated Articles of Incorporation of the Company do not
themselves alter or amend the Articles of Incorporation of the
Company in any respect and have been approved by the
Company’s Board of Directors.
We
further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate
are true and correct of our own knowledge.
Executed
at Los Angeles, California on October 22, 2008
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/s/ Alan H.
Lund
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ALAN H.
LUND
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Vice Chairman
and Chief Financial Officer
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/s/ Pamela S.
Hendry
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PAMELA S.
HENDRY
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Senior Vice
President and Treasurer
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CERTIFICATE OF DETERMINATION
OF
PREFERENCES OF PREFERRED STOCK OF
INTERNATIONAL LEASE FINANCE CORPORATION,
a California Corporation
The undersigned,
Steven F. Udvar-Hazy and Louis L. Gonda hereby certify
that:
1. They are
the duly elected and acting President and Secretary, respectively,
of International Lease Finance Corporation (the
“Company”).
2. Pursuant
to authority given by the Company’s Restated Articles of
Incorporation, a duly appointed committee (the “Special
Committee”) of the Board of Directors of the Company (such
committee having been previously authorized to exercise the powers
of the Board of Directors as to the subject matter), has duly
adopted the following recitals and resolutions:
WHEREAS, the
Restated Articles of Incorporation of the Company provide for a
class of shares known as Preferred Stock, issuable from time to
time in one or more series; and
WHEREAS, the Board
of Directors of the Company is authorized to determine or alter the
rights, preferences, privileges, and restrictions granted to or
imposed upon any wholly unissued series of Preferred Stock, to fix
the number of shares constituting any such series, and to determine
the designation thereof, or any of them; and
WHEREAS, the
Company desires, pursuant to its authority as aforesaid, to
determine and fix the rights, preferences, privileges, and
restrictions relating to a series of said Preferred Stock and the
number of shares constituting and the designation of said
series;
NOW, THEREFORE, BE
IT RESOLVED, that the Board of Directors hereby fixes and
determines the designation of, the number of shares constituting,
and the rights, preferences, privileges, and restrictions relating
to, said series of Preferred Stock as follows:
A series of
Preferred Stock shall be designated “Market Auction Preferred
Stock, Series A ” (the “Series A
MAPS”).
The number of
shares constituting Series A MAPS shall be 500.
SERIES A MAPS—GENERAL
PROVISIONS.
As used herein,
the following terms have the following meanings:
(a) “Additional
Directors” has the meaning specified in Section 6(a) of this
ARTICLE TWO.
(b) “Agent
Member” means the member of the Securities Depositary that
will act on behalf of an Existing Holder or a Potential Holder and
that is identified as such in such Existing Holder’s or
Potential Holder’s Master Purchaser’s
Letter.
(c) “Applicable
‘AA’ Composite Commercial Paper Rate,” on any
date, shall mean in the case of any Standard Dividend Period or
Short Dividend Period of (1) 49 days or more but less
than 70 days, the interest equivalent of the 60-day rate,
(2) 70 days or more but less than 85 days, the
arithmetic average of the interest equivalent of the 60-day and
90-day rates, (3) 85 days or more but less than
120 days, the interest equivalent of the 90-day rate,
(4) 120 days or more but less than 148 days, the
arithmetic average of the interest equivalent of the 90-day and
180-day rates, and (5) 148 days or more but less than
184 days, the interest equivalent of the 180-day rate, in each
case, on commercial paper placed on behalf of issuers whose
corporate bonds are rated “AA” by S&P or
“Aa” by Moody’s, or the equivalent of such rating
by another rating agency, as made available on a discount basis or
otherwise by the Federal Reserve Bank of New York for the Business
Day immediately preceding such date. In the event that the Federal
Reserve Bank of New York does not make available any of the
foregoing rates, then such rates shall be the 60-day rate or
arithmetic average of such rates, as the case may be, as quoted on
a discount basis or otherwise, by Commercial Paper Dealers to the
Auction Agent as of the close of business on the Business Day next
preceding such date. If any Commercial Paper Dealer docs not quote
a rate required to determine the Applicable “AA”
Composite Commercial Paper Rate, the Applicable “AA”
Composite Commercial Paper Rate shall be determined on the basis of
the quotation or quotations furnished by the remaining Commercial
Paper Dealer (if any) and any Substitute Commercial Paper Dealer or
Substitute Commercial Paper Dealers selected by the Company to
provide such rate or rates or, if the Company does not select any
Substitute Commercial Paper Dealer or Substitute Commercial Paper
Dealers, by the remaining Commercial Paper Dealers.
“Substitute Commercial Paper Dealer” means Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated or Salomon Brothers Inc or their respective affiliates
or successors or, if no such dealer furnishes such quotations, a
leading dealer in the commercial paper market selected by the
Company in good faith. For purposes of this definition, the
“interest equivalent” means the equivalent yield on a
360-day basis of a discount-basis security to an interest-bearing
security.
(d) “Applicable
Rate” means the rate per annum, resulting from the next
preceding Auction, at which dividends are payable on the shares of
Series A MAPS for any Dividend Period.
(e) “Applicable
Treasury Bill Rate” for any Short Dividend Period in excess
of 180 days and “Applicable Treasury Note Rate”
for any Long Dividend Period, on any date, shall mean the interest
equivalent of the rate for direct obligations of the United States
Treasury having an original maturity which is equal to, or next
lower than, the length of such Short Dividend Period or Long
Dividend Period, as the case may be, as published weekly by the
Board of Governors of the Federal Reserve System (the
“Board”) in “Federal Reserve Statistical Release
H.l5(5l9)-Selected Interest Rates,” or any successor
publication by the Board, within five Business Days preceding such
date. In the event that the Board does not publish such rate, or if
such release is not available, the Applicable Treasury Bill Rate or
Applicable Treasury Note Rate will be the arithmetic mean of the
secondary market bid rate as of approximately 3:30 P.M., New York
City time, on the Business Day next preceding such date of the U.S.
Government Securities Dealers furnished to
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the Auction
Agent for the issue of direct obligations of the United States
Treasury, in an aggregate principal amount of at least $1,000,000
with a remaining maturity equal to, or next lower than, the length
of such Short Dividend Period or Long Dividend Period, as the case
may be. If any U.S. Government Securities Dealer does not quote a
rate required to determine the Applicable Treasury Bill Rate or
Applicable Treasury Note Rate, the Applicable Treasury Bill Rate or
Applicable Treasury Note Rate shall be determined on the basis of
the quotation or quotations furnished by any Substitute U.S.
Government Securities Dealer or Dealers selected by the Company to
provide such rate or rates or, if the Company does not select any
such Substitute U.S. Government Securities Dealer or Dealers, by
the remaining U.S. Government Securities Dealer (if any);
provided that, if the Company is unable to cause such
quotations to be furnished to the Auction Agent by such sources,
the Company may cause such rates to be furnished to the Auction
Agent by such alternative source as the Company in good faith deems
to be reliable. “Substitute U.S. Government Securities
Dealers” means Goldman, Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated or Salomon Brothers Inc or
their respective affiliates or successors or, if no such dealer
provides such quotes, a leading dealer in the government securities
market selected by the Company in good faith. For purposes of this
definition, the “interest equivalent” of a rate stated
on a discount basis shall be equal to the quotient of (A) the
discount rate divided by (B) the difference between 1.00 and
the discount rate.
(f) “Auction
Agent” means Chemical Bank, or its successors, or any other
bank or trust company appointed by a resolution of the Board of
Directors of the Company, or its Special Committee, which enters
into an agreement with the Company to follow the Auction Procedures
set forth in ARTICLE THREE hereof.
(g) “Auction
Date” means the first Business Day preceding the first day of
a Dividend Period other than the Initial Dividend
Period.
(h) “Broker-Dealer”
means any broker-dealer, or other entity permitted by law to
perform the functions required of a Broker-Dealer in ARTICLE THREE,
that has been selected by the Company and has entered into a
Broker-Dealer Agreement with the Auction Agent that remains
effective.
(i) “Broker-Dealer
Agreement” means an agreement between the Auction Agent and a
Broker-Dealer pursuant to which such Broker-Dealer agrees to follow
the procedures specified in ARTICLE THREE.
(j) “Business
Day” means a day on which the New York Stock Exchange is open
for trading and which is not a Saturday, Sunday or other day on
which banks in New York City are authorized or obligated by law to
close.
(k) “Capital
Stock” means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated)
of such Person’s capital stock, whether outstanding on the
Date of Original Issue or thereafter.
(l) “Code”
means the Internal Revenue Code of 1986, as amended.
(m) “Commercial
Paper Dealers” means Morgan Stanley & Co.
Incorporated and Shearson Lehman Brothers Inc. or, in lieu of
either thereof, their respective affiliates or
successors.
(n) “Common
Stock” means all shares now or hereafter authorized of the
class of Common Stock of the Company presently authorized and any
other shares into which such shares may hereafter be changed from
time to time.
(o) “Date
of Original Issue” means the date on which the Company
initially issues shares of Series A MAPS.
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(p) “Default
Period” has the meaning specified in Section 6(a) of this
ARTICLE TWO.
(q) “Default
Rate” means the Applicable Determining Rate multiplied by the
percentage, as it may be adjusted from time to time, shown opposite
the lowest Credit Ratings category in the definition of Maximum
Applicable Rate, determined as of the Business Day preceding a
Failure to Deposit.
(r) “Dividend
Payment Date” has the meaning specified in Section 2(b) of
this ARTICLE TWO.
(s)
“Dividend Period” has the meaning specified in Section
2(c) of this ARTICLE TWO.
(t) “Dividend
Quarter” has the meaning specified in Section 2(b) of this
ARTICLE TWO.
(u) “Dividends-Received
Deduction” has the meaning specified in Section 2(b) of this
ARTICLE TWO.
(v) “Existing
Holder,” means a Person who has signed a Master
Purchaser’s Letter and is listed as the beneficial owner of
shares of Series A MAPS in the records of the Auction
Agent.
(w) “Failure
to Deposit” has the meaning specified in Section 2(e) of this
ARTICLE TWO.
(x) “Initial
Dividend Payment Date” means February 2,
1993.
(y) “Initial
Dividend Period” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
(z) “Initial
Dividend Rate” has the meaning specified in Section 2(a) of
this ARTICLE TWO.
(aa) “Junior
Capital Stock” means, with respect to the Company, any and
all Capital Stock of the Company ranking junior to the
Series A MAPS with respect to the payment of dividends or the
distribution of assets upon liquidation.
(ab) “Long
Dividend Period” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
(ac) “MAPS”
means all shares of each series of the Company’s Market
Auction Preferred Stock now or hereafter authorized.
(ad) “Maximum
Applicable Rate,” on any Auction Date, shall mean the rate
per annum obtained by multiplying the Applicable Determining Rate
on such Auction Date by a percentage (as it may be adjusted from
time to time by the Company) determined as set forth below based on
the lower of the credit ratings assigned to the Series A MAPS
by Moody’s and S&P (or if Moody’s or S&P or
both shall not make such rating available, the equivalent of either
or both of such ratings by a Substitute Rating Agency or two
Substitute Rating Agencies, as the case may be, or in the event
that only one such rating shall be available, the percentage shall
be based on such rating).
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Applicable Percentage
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Credit Ratings
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of Applicable
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Moody’s
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S&P
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Determining Rate
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AA– or
Above
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150
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%
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A– to
A+
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200
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%
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BBB– to
BBB+
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225
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%
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Below
BBB–
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275
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%
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(ae) “Master
Purchaser’s Letter” means a letter addressed to the
Company, the Auction Agent and a Broker-Dealer in which a Person
agrees, among other things, to offer to purchase, purchase, offer
to sell or sell shares of Series A MAPS as set forth in
ARTICLE THREE.
(af) “Minimum
Holding Period” has the meaning specified in Section 2(b) of
this ARTICLE TWO.
(ag) “Moody’s”
means Moody’s Investors Service, Inc.
(ah) “Normal
Dividend Payment Date” has the meaning specified in Section
2(b) of this ARTICLE TWO.
(ai) “Notice”
has the meaning specified in Section 2(c) of this ARTICLE
TWO.
(aj) “Notice
of Long Dividend Period” has the meaning specified in Section
2(c) of this ARTICLE TWO.
(ak) “Notice
of Revocation” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
(al) “Notice
of Short Dividend Period” has the meaning specified in
Section 2(c) of this ARTICLE TWO.
(am) “Outstanding”
means, as of any date, shares of Series A MAPS theretofore
issued by the Company except, without duplication, (i) any
shares of Series A MAPS theretofore cancelled, delivered to
the Company for cancellation or redeemed and (ii) as of any
Auction Date, any shares of Series A MAPS subject to
redemption on the next following Business Day.
(an) “Parity
Capital Stock” means any and all shares of Capital Stock of
the Company ranking on a parity with or equal to the Series A
MAPS as to the payment of dividends and distribution of
assets.
(ao) “Parity
Securities” has the meaning specified in Section 6(a) of this
ARTICLE TWO.
(ap) “Person”
means and includes an individual, a partnership, a corporation, a
trust, an unincorporated association, a joint venture or other
entity or a government or any agency or political subdivision
thereof.
(aq) “Potential
Holder” means any Person, including any Existing Holder,
(i) who has executed a Master Purchaser’s Letter and
(ii) who may be interested in acquiring shares of
Series A MAPS (or, in the case of an Existing Holder,
additional shares of Series A MAPS).
(ar) “Preferred
Stock” means all shares now or hereafter authorized of the
class of Preferred Stock, without par value, of the Company,
including the shares of Series A MAPS of any
series.
(as) “S&P”
means Standard & Poor’s Corporation.
(at) “Securities
Depositary” means The Depository Trust Company and its
successors and assigns or any other securities depository selected
by the Company which agrees to follow the procedures required to be
followed by such Securities Depositary in connection with shares of
Series A MAPS.
(au) “Short
Dividend Period” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
(av) “Standard
Dividend Period” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
(aw) “Subsequent
Dividend Period” has the meaning specified in Section 2(c) of
this ARTICLE TWO.
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(ax) “Subsequent
Dividend Period Days” has the meaning specified in Section
2(b) of this ARTICLE TWO.
(ay) “Substitute
Rating Agency” shall mean a nationally recognized statistical
rating organization (as that term is used in the rules and
regulations of the Securities Exchange Act of 1934) selected by the
Company, subject to the approval by Morgan Stanley and Lehman
Brothers, such approval not to be unreasonably withheld.
(az) “Sufficient
Clearing Bids” has the meaning specified in Section 4(a) of
ARTICLE THREE.
(ba) “U.S.
Government Securities Dealers” shall mean Morgan Stanley
& Co. Incorporated and Shearson Lehman Brothers Inc. or, in
lieu of either thereof, their respective affiliates or
successors.
(a) Holders
of Series A MAPS shall be entitled to receive, when, as and if
declared by the Board of Directors of the Company, out of funds
available therefor under applicable law and the Company’s
Articles of Incorporation, cumulative cash dividends at the
Applicable Rate, determined as set forth below, payable on the
respective dates set forth below that may be applicable with
respect to such Series A MAPS. For the Initial Dividend
Period, dividends will accumulate at a rate per annum of 3-5/8%
(the “Initial Dividend Rate”). For each subsequent
Dividend Period, the dividend rate for the Series A MAPS will
be the Applicable Rate, determined as set forth herein, and will be
payable on the respective dates set forth below.
(b) Dividends
on the Series A MAPS will accumulate (whether or not declared)
from the Date of Original Issue. Except for the Initial Dividend
Payment Date, dividends on the Series A MAPS with a Standard
Dividend Period will be payable, except as provided below, on each
seventh Tuesday following the preceding Dividend Payment Date.
Dividends on the Series A MAPS with a Short Dividend Period
will be payable, except as provided below, on the day following the
last day of such Short Dividend Period and will also be payable on
such other dates as are established at the time such Short Dividend
Period is determined. Dividends on the Series A MAPS with a
Long Dividend Period will be payable, except as provided below, on
the day following the last day of such Long Dividend Period and on
the first day of the fourth calendar month after the commencement
of such Long Dividend Period and quarterly thereafter on the first
day of each applicable month. Each day on which dividends on
Series A MAPS would be payable as determined as set forth in
this paragraph but for the adjustments set forth below is referred
to herein as a “Normal Dividend Payment
Date.”
(i) In the case of
dividends payable on Series A MAPS with a Standard Dividend
Period or a Short Dividend Period, if:
(A)(1)
the Securities Depositary shall continue to make available to Agent
Members the amounts due as dividends on the Series A MAPS in
next-day funds on the dates on which such dividends are payable and
(2) a Normal Dividend Payment Date is not a Business Day, or
the day next succeeding such Normal Dividend Payment Date is not a
Business Day, then dividends shall be payable on the first Business
Day preceding such Normal Dividend Payment Date that is next
succeeded by a Business Day; or
(B)(1)
the Securities Depositary shall make available to Agent Members the
amounts due as dividends on Series A MAPS in immediately
available funds on the dates on which such dividends are payable
(and the Securities Depositary shall have so advised the Auction
Agent) and (2) a Normal Dividend Payment Date is not a
Business Day, then dividends shall be payable on the first Business
Day following such Normal Dividend Payment Date.
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(ii) In the case
of dividends payable on Series A MAPS with a Long Dividend
Period, if:
(A)(1)
the Securities Depositary shall continue to make available to its
members and participants the amounts due as dividends on the
Series A MAPS in next-day funds on the dates on which such
dividends are payable and (2) a Normal Dividend Payment Date
is not a Business Day, or the day next succeeding such Normal
Dividend Payment Date is not a Business Day, then dividends shall
be payable on the first Business Day following such Normal Dividend
Payment Date that is next succeeded by a Business Day;
or
(B)(1)
the Securities Depositary shall make available to its members and
participants the amounts due as dividends on the Series A MAPS
in immediately available funds on the dates on which such dividends
are payable (and the Securities Depositary shall have so advised
the Auction Agent) and (2) a Normal Dividend Payment Date is
not a Business Day, then dividends shall be payable on the first
Business Day following such Normal Dividend Payment
Date.
Notwithstanding
the foregoing, in case of payment in next-day funds, if the date on
which dividends on Series A MAPS would be payable as
determined as set forth in the preceding paragraphs is a day that
would result in the number of days between successive Auction Dates
(determined by excluding the first Auction Date and including the
second Auction Date) not being at least equal to the then-current
minimum holding period (currently set forth in Section 246(c) of
the Code) (the “Minimum Holding Period”) required for
corporate taxpayers to be entitled to the dividends-received
deduction on preferred stock held by nonaffiliated corporations
(currently set forth in Section 243(a) of the Code) (the
“Dividends-Received Deduction”), then dividends on the
Series A MAPS shall be payable on the first Business Day
following such date on which dividends would be so payable that is
next succeeded by a Business Day that results in the number of days
between such successive Auction Dates (determined as set forth
above) being at least equal to the then-current Minimum Holding
Period.
Each date on which
dividends on Series A MAPS shall be payable as determined as
set forth above is referred to herein as a “Dividend Payment
Date”. If applicable, the period from the preceding Dividend
Payment Date to the next Dividend Payment Date for Series A
MAPS with a Long Dividend Period is hereby referred to as a
“Dividend Quarter.” Although any particular Dividend
Payment Date may not occur on the originally scheduled Normal
Dividend Payment Date because of the adjustments set forth above,
each succeeding Dividend Payment Date will be, subject to such
adjustments, the date determined as set forth above as if each
preceding Dividend Payment Date had occurred on the respective
originally scheduled Normal Dividend Payment Date.
In addition,
notwithstanding the foregoing, in the event of a change in law
altering the Minimum Holding Period, the period of time between
Dividend Payment Dates shall automatically be adjusted so that
there shall be a uniform number of days in subsequent Dividend
Periods (such number of days without giving effect to the
adjustment referred to above being referred to herein as the
“Subsequent Dividend Period Days”) commencing after the
date of such change in law equal to or to the extent necessary, in
excess of the then-current Minimum Holding Period, provided
that the number of Subsequent Dividend Period Days shall not exceed
by more than nine days the length of such then-current Minimum
Holding Period and shall be evenly divisible by seven, and the
maximum number of Subsequent Dividend Period Days, as adjusted
pursuant to this provision, in no event shall exceed
119 days.
(c) After the
Initial Dividend Period for the Series A MAPS, each subsequent
Dividend Period will (except for the adjustments for non-Business
Days described above) be 49 days (each such 49-day period,
subject to any adjustment as a result of a change in law altering
the Minimum Holding Period as described above, being herein
referred to as a “Standard Dividend Period”), unless
the Company specifies that any such subsequent Dividend Period will
be a Dividend Period of 50 to 364 days and consisting of a
whole number of weeks (a “Short Dividend Period”) or a
Dividend Period of one year or longer (a “Long Dividend
Period”).
7
Each such
Standard Dividend Period, Short Dividend Period and Long Dividend
Period (together with the period commencing on the Date of Original
Issue and ending on the Initial Dividend Payment Date for the
Series A MAPS (the “Initial Dividend Period”))
being referred to herein as a “Dividend Period.” After
the Initial Dividend Period for the Series A MAPS, each
successive Dividend Period will commence on the Dividend Payment
Date for the preceding Dividend Period for such Series and will end
(i) in the case of a Standard Dividend Period, on the day
preceding the next Dividend Payment Date and (ii) in the case
of a Short Dividend Period or a Long Dividend Period, on the last
day of the Short Dividend Period or the Long Dividend Period
specified by the Company in the related Notice.
The Company may
give telephonic and written notice, not less than ten and not more
than 30 days prior to an Auction Date, to the Auction Agent and the
Securities Depositary that the next succeeding Dividend Period will
be a Short Dividend Period (the “Notice of Short Dividend
Period”) or a Long Dividend Period (the “Notice of Long
Dividend Period” and, together with the Notice of Short
Dividend Period, a “Notice”). Each such Notice will
specify (i) the next succeeding Dividend Period as a Short
Dividend Period or a Long Dividend Period, (ii) the term
thereof, (iii) in the case of any Long Dividend Period, any
additional redemption provisions or restrictions on redemption, if
any, and (iv) the Dividend Payment Dates; provided
that, for any Auction occurring after the initial Auction, the
Company may not give a Notice of a Short Dividend Period or a
Notice of a Long Dividend Period (and any such Notice shall be null
and void) unless Sufficient Clearing Bids were made in the last
occurring Auction of any series of MAPS (or all shares of such
Series were subject to Submitted Hold Orders) and full cumulative
dividends, if any, for all series of MAPS payable prior to such
date have been paid in full. The Board of Directors of the Company
may establish a Short Dividend Period or a Long Dividend Period for
the Series A MAPS. Notice may be revoked by the Company on or
prior to the Business Day prior to the related Auction Date by
telephonic and written notice (a “Notice of
Revocation”) to the Auction Agent and the Securities
Depositary.
If the Company
does not give a Notice with respect to the next succeeding Dividend
Period or gives a Notice of Revocation with respect thereto, such
next succeeding Dividend Period will be a Standard Dividend Period.
In addition, if the Company has given Notice with respect to the
next succeeding Dividend Period and has not given Notice of
Revocation with respect thereto, but Sufficient Clearing Bids are
not made (other than because all shares of such Series were subject
to Submitted Hold Orders) in the related Auction or such Auction is
not held for any reason, such next succeeding Dividend Period will,
notwithstanding such Notice, be a Standard Dividend Period and the
Company may not again give a Notice (and such Notice shall be null
and void) until Sufficient Clearing Bids have been made in an
Auction or an Auction has been held in which all shares of a series
were subject to Submitted Hold Orders.
(d) Prior to
each Dividend Payment Date for the Series A MAPS, the Company
shall deposit with the Auction Agent sufficient funds for the
payment of declared dividends.
Each dividend will
be payable to the holder or holders of record of Series A MAPS
as they appear on the stock books of the Company on the Business
Day next preceding the applicable Dividend Payment Date. Dividends
in arrears for any past Dividend Period (and for any past Dividend
Quarter during a Long Dividend Period) may be declared and paid at
any time, without reference to any regular Dividend Payment Date,
to the holder or holders of record of the Series A MAPS. Any
dividend payment made shall first be credited against the dividends
accumulated with respect to the earliest Dividend Period (or, if
applicable, the earliest Dividend Quarter) for which dividends have
not been paid. So long as the Series A MAPS are held of record
by the nominee of the Securities Depositary, dividends will be paid
to the nominee of the Securities Depositary on each Dividend
Payment Date. The Securities Depositary will credit the accounts of
the Agent Members of Existing Holders in accordance with the
Securities Depositary’s normal procedures, which now provide
for payments in next-day funds settled through the New York
Clearing House. The Agent Member of an Existing Holder will be
responsible for holding or disbursing such payments to Existing
Holders in accordance with the instructions of such Existing
Holders.
8
Holders of shares
of the Series A MAPS shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full
cumulative dividends. No dividends will be declared or paid or set
apart for payment on the Series A MAPS for any period unless
full cumulative dividends have been or contemporaneously are
declared and paid on all MAPS through the most recent applicable
Dividend Payment Date for any series of MAPS. No interest, or sum
of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Series A MAPS which may be
in arrears.
So long as any
MAPS are Outstanding, the Company shall not declare, pay or set
aside for payment any dividend or other distribution in respect of
Junior Capital Stock or call for redemption, redeem, purchase or
otherwise acquire for consideration any shares of Junior Capital
Stock unless (i) full cumulative dividends for all past
Dividend Periods (and, if applicable, for all past Dividend
Quarters) and all Dividend Payment Dates occurring on or prior to
the date of the transaction shall have been declared and paid (or
declared and a sum sufficient for payment of the dividends set
apart for payment) on all such MAPS Outstanding and (ii) the
Company has redeemed (or set apart for payment a sum sufficient for
redemption) the full number of MAPS required to be redeemed after
giving any notice of an optional redemption.
The amount of
dividends per share on Series A MAPS payable for each Dividend
Period (or for each Dividend Quarter) shall be computed by
multiplying the Applicable Rate for each Dividend Period (or
Dividend Quarter) by a fraction, the numerator of which shall be
the number of days in the Dividend Period (or Dividend Quarter)
(calculated by counting both the last day and the first day
thereof) such share was Outstanding, and the denominator of which
shall be 360 and multiplying the amount so obtained by
$100,000.
(e) The
dividend rate for each Dividend Period subsequent to the Initial
Dividend Period for the Series A MAPS will be, except as
provided below, the Applicable Rate.
Notwithstanding
the results of any Auction or any other provision herein, the
dividend rate on the Series A MAPS shall not exceed the
Maximum Applicable Rate for any Dividend Period; provided,
however, that the Board of Directors of the Company may
increase the percentages used to calculate the Maximum Applicable
Rate at any time by giving notice to the Auction Agent and the
Securities Depositary. Any such notice of increase in the
percentage used to calculate the Maximum Applicable Rate must be
given to the Auction Agent not later than 10:00 A.M. on an
Auction Date. Such increases may be made by the Board of Directors
of the Company from percentages referred to in the definition of
Maximum Applicable Rate as follows: from the 150% to up to 175%,
from the 200% to up to 225% and from the 225% to up to 250%, with
no change to the 275% figure. The Board of Directors of the Company
may also designate higher percentages than those referred to in the
preceding sentence (including the 275%) upon receipt of an opinion
of counsel to the Company to the effect that the use of such higher
percentages will not adversely affect the tax treatment of the
Series A MAPS. The provisions of the first sentence of this
paragraph notwithstanding, at any time that the application of the
provisions of the next paragraph would result in a dividend rate on
the Series A MAPS being in excess of the Maximum Applicable
Rate, the maximum dividend rate applicable to such Series A
MAPS shall be such higher dividend rate as provided
below.
In the event of
the failure by the Company to pay to the Auction Agent by 12:00
noon, New York City time, (i) on the Business Day next
preceding any Dividend Payment Date, the full amount of any
dividend (whether or not earned or declared) to be paid on such
Dividend Payment Date on the Series A MAPS or (ii) on the
Business Day next preceding any redemption date, the full
redemption price (including accumulated and unpaid dividends) to be
paid on such redemption date for any share of the Series A
MAPS (in each case referred to as a “Failure to
Deposit”), then, until the full amount due shall have been
paid to the Auction Agent, Auctions will be suspended and the
Applicable Rate for such Series shall be the Default Rate as
determined as of the Business Day preceding the Failure to Deposit.
If such Failure to Deposit is cured within three Business Days as
provided below, the Applicable Rate for the Dividend Period
commencing on the second Business Day following such cure will be
based upon the results of an Auction to be held on the Business Day
next succeeding such cure. Unless such a cure is effected, the
Default Rate
9
shall continue
in effect until there shall occur a Dividend Payment Date at least
two Business Days prior to which the full amount of any dividends
(whether or not earned or declared) payable on each Dividend
Payment Date prior to and including such Dividend Payment Date, and
the full amount of any redemption price (including accumulated and
unpaid dividends) then due, shall have been paid to the Auction
Agent, and thereupon Auctions shall resume on the terms stated
herein for Dividend Periods commencing with such Dividend Payment
Date. If an Auction is not held on an Auction Date for any reason
(other than the suspension of Auctions due to a Failure to
Deposit), the dividend rate for the applicable Dividend Period
shall be the Maximum Applicable Rate determined as of such Auction
Date.
Any Failure to
Deposit with respect to the Series A MAPS shall be deemed to
be cured if, within three Business Days of such Failure to Deposit,
with respect to a Failure to Deposit relating to (a) the
payment of dividends, the Company deposits with the Auction Agent
by 12:00 noon, New York City time, all accumulated and unpaid
dividends on the Series A MAPS, including the full amount of
any dividends to be paid with respect to the Dividend Period with
respect to which the Failure to Deposit occurred, plus an amount
computed by multiplying the Default Rate by a fraction, the
numerator of which shall be the number of days during the period
from the Dividend Payment Date in respect of which such Failure to
Deposit occurred through the day preceding the Business Day next
succeeding the Auction held following such cure and the denominator
of which shall be 360, and applying the rate obtained against the
aggregate liquidation preference of such Series of MAPS and
(b) the redemption of shares of Series A MAPS, the
deposit by the Company with the Auction Agent, by 12:00 noon, New
York City time, of funds sufficient for the redemption of such
shares (including accumulated and unpaid dividends), plus an amount
computed by multiplying the Default Rate by a fraction, the
numerator of which shall be the number of days for which such
Failure to Deposit is not cured in accordance with this paragraph
(including the day such Failure to Deposit occurs and excluding the
day such Failure to Deposit is cured) and the denominator of which
shall be 360, and applying the rate obtained against the aggregate
liquidation preference of the shares of Series A MAPS to be
redeemed, and the giving of irrevocable instructions by the Company
to apply such funds and, if applicable, the income and proceeds
therefrom, to the payment of the redemption price (including
accumulated and unpaid dividends) for such shares of the Series A
MAPS. If the Company shall have cured such Failure to Deposit by
making timely payment to the Auction Agent, the Auction Agent shall
give telephonic and written notice of such cure to each Existing
Holder of MAPS at the telephone number and address specified in
such Existing Holder’s Master Purchaser’s Letter and to
each Broker-Dealer as promptly as practicable after such cure is
effected and schedule an Auction for such Series for the next
Business Day.
(f) The
Company may give telephonic and written notice, not later than
10:00 A.M. on an Auction Date, to the Auction Agent and the
Securities Depositary of an increase in the percentage used to
calculate the Maximum Applicable Rate for the Series A MAPS.
Such notice shall specify the new percentages to be used to
calculate the Maximum Applicable Rate. The Board of Directors of
the Company may establish an increase in such percentages. The
Company may not revoke any notice of an increase in the percentages
used to calculate the Maximum Applicable Rate and such percentages,
once increased, may not thereafter be decreased.
The Series A
MAPS shall be redeemable by the Company as provided
below:
(a) At the
option of the Company, the Series A MAPS may be redeemed, in
whole or from time to time in part, out of funds legally available
therefor, on any Dividend Payment Date for such Series A MAPS,
upon at least fifteen but not more than 45 days’ notice,
at a redemption price per share equal to the sum of $100,000 plus
an amount equal to accumulated and unpaid dividends thereon
(whether or not earned or declared) to the date that the Company
pays the full amount payable upon redemption of the shares of such
Series. The Company may only redeem Series A MAPS in whole
shares. Pursuant to such right of optional
10
redemption, the
Company may elect to redeem some or all of the shares of
Series A MAPS without redeeming shares of any other series of
MAPS or redeem some or all of the shares of any other series of
MAPS without redeeming shares of Series A MAPS.
Upon any date
fixed for redemption (unless a Failure to Deposit occurs), all
rights of the holders of shares of Series A MAPS called for
redemption will cease and terminate, except the right of such
holders to receive the amounts payable in respect of such
redemption therefor, but without interest, and such shares of the
Series A MAPS will be deemed no longer Outstanding.
So long as all of
the Series A MAPS to be redeemed are held of record by a
nominee of the Securities Depositary, the redemption price
(including accumulated and unpaid dividends) for such shares of the
Series A MAPS will be paid by the Company to the Securities
Depositary on the redemption date for distribution to Agent Members
in accordance with its normal procedures.
(b) Any
shares of Series A MAPS which shall at any time have been
redeemed or purchased by the Company shall, after such redemption
or purchase, be cancelled in the manner provided by the laws of the
State of California.
Section 4.
Conversion or Exchange.
The holders of
shares of Series A MAPS shall not have any rights to convert
such shares into or exchange such shares for shares of any other
class or classes or of any other series of any class or classes of
the Capital Stock of the Company or into any other securities of
the Company.
Section 5.
Liquidation Rights.
In the event of
any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, holders of the Series A MAPS
will be entitled to receive, out of the assets of the Company
available for distribution to shareholders after satisfying claims
of creditors but before any payment or distribution of assets is
made to holders of Junior Capital Stock upon liquidation, a
preferential liquidation distribution in the amount of $100,000 per
share plus an amount equal to accumulated and unpaid dividends on
each such share (whether or not declared) to and including the date
of such distribution. If upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the assets
of the Company are insufficient to pay the holders of the
Series A MAPS the full amount of the preferential liquidation
distributions to which they are entitled, holders of the
Series A MAPS will share ratably in any such distribution of
such assets with holders of Parity Capital Stock. Unless and until
payment in full has been made to holders of the Series A MAPS
of the liquidation distributions to which they are entitled as
described in this paragraph, no dividends or distributions will be
made to holders of the Company’s Junior Capital Stock, and no
purchase, redemption or other acquisition for any consideration by
the Company will be made in respect of the Company’s Junior
Capital Stock. After the payment to the holders of the
Series A MAPS of the full amount of the preferential
liquidation distributions to which they are entitled pursuant to
this paragraph, such holders (in their capacity as such holders)
will have no right or claim to any of the remaining assets of the
Company. Neither the consolidation nor the merger of the Company
with or into any other corporation or corporations, nor the sale or
transfer by the Company of all or any part of its assets, shall be
deemed to be a liquidation, dissolution or winding up of the
Company for purposes of this Section 5.
11
Section 6.
Voting Rights.
(a) Holders
of the Series A MAPS will have no voting rights except as
hereinafter described, or as expressly required by law.
During any period
when dividends on the Series A MAPS or any other Parity
Capital Stock of the Company which has voting rights comparable to
the Series A MAPS which are then exercisable (the
Series A MAPS and all such other securities being referred to
as the “Parity Securities”) shall be in arrears for at
least 180 consecutive days and shall not have been paid in full (a
“Default Period”), the holders of record of the Parity
Securities voting as described below will be entitled to elect two
directors to the Board of Directors (the “Additional
Directors”) whether or not the Board of Directors of the
Company has taken appropriate action to increase the established
number of directors of the Company by two, and the holders of the
Common Stock as a class, shall be entitled to elect the remaining
number of directors.
As soon as
practicable after the beginning of a Default Period (or a
reinstatement of the voting rights of holders of Parity Securities
as provided herein), the Board of Directors of the Company will
call or cause to be called a special meeting of the holders of
Parity Securities by mailing or causing to be mailed to such
holders a notice of such special meeting to be held not less than
ten and not more than 45 days after the date such notice is
given. If the Board of Directors of the Company does not call or
cause to be called such a special meeting, it may be called by any
of such holders on like notice. The record date for determining the
holders of the Parity Securities entitled to notice of and to vote
at such special meeting will be the close of business on the
Business Day preceding the day on which such notice is mailed. At
any such special meeting, such holders, by plurality vote, voting
together as a single class without regard to series (to the
exclusion of the holders of Junior Capital Stock) will be entitled
to elect two directors on the basis of one vote per $100,000
liquidation preference (excluding amounts in respect of accumulated
and unpaid dividends). The holder or holders of one-third of the
Parity Securities then outstanding, present in person or by proxy,
will constitute a quorum for the election of the Additional
Directors except as otherwise provided by law. Notice of all
meetings at which holders of the Series A MAPS shall be
entitled to vote will be given to such holders at their addresses
as they appear on the register of the Company. If a Default Period
shall terminate after the notice of a special meeting has been
given but before such special meeting has been held, the Company
shall, as soon as practicable after such termination, mail or cause
to be mailed notice of such termination to holders of the Parity
Securities that would have been entitled to vote at such special
meeting.
So long as a
Default Period continues, (i) any vacancy in the office of an
Additional Director may be filled (except as provided in the
following clause (ii)) by the person appointed in an instrument in
writing signed by the remaining Additional Director and filed with
the Secretary of the Company or, in the event there is no remaining
Additional Director, by vote of the holders of the outstanding
Parity Securities, voting together as a single class without regard
to series, in a meeting of shareholders or at a meeting of holders
of Parity Securities called for such purpose, and (ii) in the
case of the removal of any Additional Director, the vacancy may be
filled by appointment by the person elected by the vote of the
holders of the outstanding Parity Securities, voting together as a
single class without regard to series, at the same meeting at which
such removal shall be voted upon or any subsequent meeting. Each
director who shall be elected or appointed by the remaining
Additional Director as aforesaid shall be an Additional
Director.
At such time as a
Default Period shall terminate, (i) the term of office of the
Additional Directors shall terminate and (ii) the voting
rights of the holders of the Parity Securities to elect directors
shall cease (subject to the occurrence of a subsequent Default
Period).
12
(b) Except as
provided below, so long as any Series A MAPS remain
Outstanding, the Company shall not, without the consent of the
holders of at least two-thirds of all of the MAPS then outstanding
(taken together as a single class), given in person or by proxy,
either in writing or at a meeting (voting separately as a single
class), (i) authorize, create or issue, or increase the
authorized amount of, any Capital Stock of the Company of any class
ranking, as to dividends or upon the liquidation, dissolution or
winding up of the Company, prior to the Series A MAPS, or
reclassify any authorized Capital Stock of the Company into any
such Capital Stock, or authorize, create or issue any obligation or
security convertible into or evidencing the right to purchase any
such Capital Stock, or (ii) amend, alter or repeal the
provisions of the Company’s Articles of Incorporation,
whether by merger, consolidation, share exchange, division or
otherwise, so as to adversely affect any preference, limitation or
special right of the Series A MAPS.
Except as provided
by law, the consent of the holders of the Series A MAPS is not
required and such holders are not entitled to vote upon
(i) the authorization, creation, issuance or increase in the
authorized amount of the Common Stock, additional series of MAPS or
any Capital Stock of the Company of any class ranking, as to
dividends and upon the liquidation, dissolution or winding up of
the Company, on a parity with or junior to the MAPS or
(ii) any merger, consolidation, share exchange or division of
the Company (or any successor corporation) with or into another
corporation the result of which is that the Series A MAPS that
may be Outstanding from time to time may be junior to any preferred
shares of such corporation as to dividends and upon the
liquidation, dissolution or winding up of the surviving corporation
if on or prior to the date of effectiveness of such merger or
consolidation, the Company shall have given Moody’s and
S&P written notice of such merger or consolidation and
Moody’s and S&P shall have confirmed in writing that the
transaction will not adversely affect the then existing rating for
the MAPS. If either Moody’s or S&P shall change its
rating categories for preferred stock, then the determination of
whether the transaction will not adversely affect the then existing
rating for the MAPS shall be made based upon the substantially
equivalent new rating categories for preferred stock of such rating
agency. If either Moody’s or S&P, or both, shall not make
a rating available for the Series A MAPS necessary to make
such a determination, such determination will be made based upon
the substantial equivalent of either or both of such ratings by a
Substitute Rating Agency or two Substitute Rating Agencies or, in
the event that only one such rating shall be available, based upon
such available rating. If an alternative nationally recognized
securities rating agency or agencies are not available, then for
purposes of such determination the rating for the Series A
MAPS shall be deemed to be the highest relevant rating last
published by Moody’s, S&P or any such Substitute Rating
Agency.
Shares of
Series A MAPS are not subject or entitled to the benefit of a
sinking fund.
13
Capitalized terms
not defined in this Section 1 shall have the respective
meanings specified in Section 1 of ARTICLE TWO. As used in
this ARTICLE THREE, the following terms have the following
meanings:
(a) “Affiliate”
means any Person controlled by, in control of or under common
control with the Company.
(b) “Applicable
Determining Rate” means, (i) for any Standard Dividend
Period or Short Dividend Period of 183 days or less, the
Applicable “AA” Composite Commercial Paper Rate,
(ii) for any Short Dividend Period of 184 to 364 days,
the Applicable Treasury Bill Rate and (iii) for any Long
Dividend Period, the Applicable Treasury Note Rate.
(c) “Available
Shares of Series A MAPS” has the meaning specified in
Section 4(a) of this ARTICLE THREE.
(d) “Bid”
has the meaning specified in Section 2(a) of this ARTICLE
THREE.
(e) “Bidder”
has the meaning specified in Section 2(a) of this ARTICLE
THREE.
(f) “Hold
Order” has the meaning specified in Section 2(a) of this
ARTICLE THREE.
(g) “Order”
has the meaning specified in Section 2(a) of this ARTICLE
THREE.
(h) “Sell
Order” has the meaning specified in Section 2(a) of this
ARTICLE THREE.
(i) “Submission
Deadline” means 1:00 P.M., New York City time, on any Auction
Date or such other time on any Auction Date as may be specified
from time to time by the Auction Agent as the time prior to which
each Broker-Dealer must submit to the Auction Agent in writing all
Orders obtained by it for the Auction to be conducted on such
Auction Date.
(j) “Submitted
Bid” has the meaning specified in Section 3(a) of this
ARTICLE THREE.
(k) “Submitted
Hold Order” has the meaning specified in Section 3(a) of this
ARTICLE THREE.
(1) “Submitted
Order” has the meaning specified in Section 3(a) of this
ARTICLE THREE.
(m) “Submitted
Sell Order” has the meaning specified in Section 3(a) of this
ARTICLE THREE.
(n) “Winning
Bid Rate” has the meaning specified in Section 4(a) of this
ARTICLE THREE.
14
Section 2.
Orders by Existing Holders and Potential Holders.
(a) Prior to the
Submission Deadline on each Auction Date for Series A
MAPS:
(i) each Existing
Holder may submit to a Broker-Dealer information as to:
(A)
the number of Outstanding shares of Series A MAPS, if any,
held by such Existing Holder that such Existing Holder desires to
continue to hold without regard to the Applicable Rate for the next
succeeding Dividend Period;
(B)
the number of Outstanding shares of Series A MAPS, if any,
held by such Existing Holder that such Existing Holder desires to
sell, provided that the Applicable Rate for the next
succeeding Dividend Period is less than the rate per annum
specified by such Existing Holder; and/or
(C)
the number of Outstanding shares of Series A MAPS, if any,
held by such Existing Holder that such Existing Holder desires to
sell without regard to the Applicable Rate for the next succeeding
Dividend Period; and
(ii) each
Broker-Dealer, using a list of Potential Holders that shall be
maintained in accordance with the provisions set forth in the
Broker-Dealer Agreement for the purpose of conducting a competitive
Auction, shall contact both Existing Holders and Potential Holders,
including Existing Holders with respect to an offer by any such
Existing Holder to purchase additional shares of Series A
MAPS, on such list to notify such Existing Holders and Potential
Holders as to the length of the next Dividend Period and
(A) with respect to any Short Dividend Period or Long Dividend
Period, the Dividend Payment Date(s) and (B) with respect to
any Long Dividend Period, any dates before which shares of
Series A MAPS may not be redeemed and any redemption premium
applicable in an optional redemption and to determine the number of
Outstanding shares of Series A MAPS, if any, with respect to
which each such Existing Holder desires to submit an Order and each
such Potential Holder desires to submit a Bid.
For the purposes
hereof, the communication to a Broker-Dealer of information
referred to in clause (i) or (ii) of this Subsection
(a) is hereinafter referred to as an “Order” and
each Existing Holder and each Potential Holder placing an Order is
hereinafter referred to as a “Bidder,” an Order
containing the information referred to in clause (i)(A) of this
Subsection (a) is hereinafter referred to as a “Hold
Order,” an Order containing the information referred to in
clause (i)(B) or (ii) of this Subsection (a) is
hereinafter referred to as a “Bid;” and an Order
containing the information referred to in clause (i)(C) of this
Subsection (a) is hereinafter referred to as a “Sell
Order.”
(b) (i) A
Bid by an Existing Holder shall constitute an irrevocable offer to
sell:
(A)
the number of Outstanding shares of Series A MAPS specified in
such Bid if the Applicable Rate determined on such Auction Date
shall be less than the rate per annum specified in such Bid;
or
(B)
such number or a lesser number of Outstanding shares of
Series A MAPS to be determined as set forth in Subsections
(a)(iv) and (c) of Section 5 of this ARTICLE THREE if the
Applicable Rate determined on such Auction Date shall be equal to
the rate per annum specified therein; or
(C)
a lesser number of Outstanding shares of Series A MAPS to be
determined as set forth in Subsections (b)(iii) and (c) of
Section 5 of this ARTICLE THREE if such specified rate per
annum shall be higher than the Maximum Applicable Rate and
Sufficient Clearing Bids do not exist.
15
(ii) A Sell Order
by an Existing Holder shall constitute an irrevocable offer to
sell:
(A)
the number of Outstanding shares of Series A MAPS specified in
such Sell Order; or
(B)
such number or a lesser number of Outstanding shares of
Series A MAPS to be determined as set forth in Subsections
(b)(iii) and (c) of Section 5 of this ARTICLE THREE if
Sufficient Clearing Bids do not exist.
(iii) A Bid by a
Potential Holder shall constitute an irrevocable offer to
purchase:
(A)
the number of Outstanding shares of Series A MAPS specified in
such Bid if the Applicable Rate determined on such Auction Date
shall be higher than the rate per annum specified in such Bid;
or
(B)
such number or a lesser number of Outstanding shares of
Series A MAPS to be determined as set forth in Subsections
(a)(v) and (d) of Section 5 of this ARTICLE THREE if the
Applicable Rate determined on such Auction Date shall be equal to
the rate per annum specified therein.
(c) Orders
may be submitted for whole shares of MAPS only. Orders submitted
for fractional shares of MAPS shall not be valid.
Section 3.
Submission of Orders by Broker-Dealers to Auction
Agent.
(a) Each
Broker-Dealer shall submit in writing to the Auction Agent prior to
the Submission Deadline on each Auction Date for the Series A
MAPS all Orders obtained by such Broker-Dealer, specifying with
respect to each Order:
(i) the name of
the Bidder placing such Order;
(ii) the aggregate
number of Outstanding shares of Series A MAPS that are the
subject of such Order;
(iii) to the
extent that such Bidder is an Existing Holder;
(A)
the number of Outstanding shares of Series A MAPS, if any,
subject to any Hold Order placed by such Existing
Holder;
(B)
the number of Outstanding shares of Series A MAPS, if any,
subject to any Bid placed by such Existing Holder and the rate per
annum specified in such Bid; and
(C)
the number of Outstanding shares of Series A MAPS, if any,
subject to any Sell Order placed by such Existing Holder;
and
(iv) to the extent
such Bidder is a Potential Holder, the rate per annum specified in
such Potential Holder’s Bid.
(Each “Hold
Order,” “Bid” or “Sell Order” as
submitted or deemed submitted by a Broker-Dealer is hereinafter
referred to individually as a “Submitted Hold Order,” a
“Submitted Bid” or a “Submitted Sell
Order,” as the case may be, or as a “Submitted
Order.”)
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(b) If any
rate per annum specified in any Submitted Bid contains more than
three figures to the right of the decimal point, the Auction Agent
shall round such rate up to the next highest one-thousandth (.001)
of 1%.
(c) If one or
more Orders covering in the aggregate all of the Outstanding shares
of Series A MAPS held by an Existing Holder are not submitted
to the Auction Agent prior to the Submission Deadline for
any
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