BLACKROCK MUNIHOLDINGS FUND, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND PREFERENCES OF
VARIABLE RATE MUNI TERM PREFERRED SHARES
BLACKROCK MUNIHOLDINGS FUND, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE
RIGHTS AND PREFERENCES OF
VARIABLE RATE MUNI TERM PREFERRED SHARES
BlackRock MuniHoldings Fund, Inc., a Maryland corporation
(the “Corporation”), hereby certifies to the State Department of
Assessments and Taxation of the State of Maryland that:
FIRST: These Articles Supplementary shall be effective as
of 12:02 p.m. ET on the 20th day of December, 2023.
SECOND: Pursuant to authority
expressly vested in the Board of Directors of the Corporation by Article IV of
the Corporation’s Charter, the Board of Directors has, by resolution duly adopted on November 14, 2023, reclassified 2,140 authorized
and unissued shares of common stock of the Corporation as shares of preferred
stock of the Corporation, par value $0.10 per share, as Variable Rate Muni Term
Preferred Shares (the “VMTP Preferred Shares”). The VMTP Preferred
Shares may be issued in one or more series, as designated and authorized by the
Board of Directors or a duly authorized committee thereof from time to time
(each series of VMTP Preferred Shares that may be authorized and issued, a “Series”).
THIRD: The preferences
(including liquidation preference), voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of redemption, of the shares of each Series of VMTP Preferred Shares
are as follows or as set forth in an amendment to these Articles Supplementary
or otherwise in the Corporation’s Charter (each such Series being referred to
herein as a “Series of VMTP Preferred Shares”):
DESIGNATION
Series W-7: A series of 2,140 shares
of preferred stock, par value $0.10 per share, liquidation preference $100,000
per share, is hereby authorized and designated “Series W-7 VMTP Preferred
Shares”. Each Series W-7 VMTP Preferred Share shall be issued on a date or
dates determined by the Board of Directors of the Corporation or pursuant to
their delegated authority; have an Applicable Rate commencing on
December 20, 2023 equal to the sum of the applicable Ratings Spread (as defined
herein) and 75% of Daily SOFR (as defined herein) on the applicable Rate
Determination Date; and have such other
preferences, voting powers, restrictions, limitations as to dividends and
distributions, qualifications and terms and conditions of redemption, required
by Applicable Law and that are expressly set forth in these Articles
Supplementary and the Charter. The Series W-7 VMTP Preferred Shares shall
constitute a separate series of preferred stock of the Corporation and each
Series W-7 VMTP Preferred Share shall be identical. Except as otherwise
provided with respect to any additional Series of VMTP Preferred Shares, the
terms and conditions of these Articles Supplementary apply to each Series of
VMTP Preferred Shares and each share of such Series.
DEFINITIONS
The following terms shall have
the following meanings (with terms defined in the singular having comparable
meanings when used in the plural and vice versa), unless the context otherwise
requires:
“1940 Act” means the Investment
Company Act of 1940, as amended.
“Additional Amount” shall have the meaning specified in Section 2(e)(i)(B) of
these Articles Supplementary.
“Affected Series” shall have the meaning
set forth in Section 5(d) of these Articles Supplementary.
“Agent Member” means a Person with an account at the Securities
Depository that holds one or more VMTP
Preferred Shares through the Securities Depository, directly or indirectly, for
a Beneficial Owner and that will be authorized and instructed, directly or
indirectly, by a Beneficial Owner to disclose information to the Redemption and
Paying Agent with respect to such Beneficial Owner.
“Applicable Base Rate” means
75% of Daily SOFR on the applicable Rate Determination Date.
“Applicable Law” means Maryland state law (including, without limitation,
the Maryland General Corporation Law) and the federal law of the United States
of America (including, without limitation, the 1940 Act).
“Applicable Rate” means the dividend rate per annum on any VMTP
Preferred Shares for a Rate Period determined as set forth in paragraph (e)(i)
of Section 2 of these Articles Supplementary
or in the definition of “Maximum Rate”, as applicable.
“Applicable Rate
Determination” means each
periodic operation of the process of determining the Applicable Rate for the
VMTP Preferred Shares for a Subsequent Rate Period.
“Articles Supplementary”
means these Articles Supplementary
Establishing and Fixing the Rights and Preferences of the VMTP Preferred Shares and as amended from time to
time in accordance with the provisions hereof.
“Basic Maintenance Amount,” as of any Valuation Date, shall have the meaning set
forth in the Rating Agency Guidelines.
“Basic Maintenance Cure
Date,” with respect to the failure by
the Corporation to satisfy the Basic Maintenance Amount (as required by
paragraph (a) of Section 7 of these Articles Supplementary) as of a given
Valuation Date, shall have the meaning set forth in the Rating Agency
Guidelines, but in no event shall it be longer than ten (10) Business Days following such Valuation Date.
“Basic
Maintenance Report” shall have the meaning set forth in the Rating Agency Guidelines.
“Beneficial Owner” means a Person in whose name VMTP Preferred Shares are
recorded as beneficial owner of such VMTP
Preferred Shares by the Securities Depository, an Agent Member or other
securities intermediary on the records of such Securities Depository, Agent
Member or securities intermediary, as the case may be, or such Person’s
subrogee.
“Board of Directors”
means the Board of Directors of the
Corporation or any duly authorized committee thereof.
“Business Day” means a day (a) other than a day on which commercial
banks in The City of New York, New York are required or authorized by law or
executive order to close and (b) on which the New York Stock Exchange is not
closed.
“Charter” means the Articles of Incorporation, as amended and
supplemented (including by these Articles Supplementary), of the Corporation on
file in the State Department of Assessments and Taxation of Maryland.
“Closed-End Funds” shall have the meaning set forth in Section 12 of these
Articles Supplementary.
“Closing Date” means December 20, 2023.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Shares” means the shares of
common stock, par value $0.10 per share, of the Corporation.
“Conditional Acceptance”
means a conditional acceptance by the
Total Holders to extend the Term Redemption Date of the VMTP Preferred Shares.
“Corporation” shall
have the meaning as set forth in the Recitals of these Articles Supplementary.
“Cure Date”
means the Basic Maintenance Cure Date, the Minimum Asset Coverage Cure Date or the last day of the Effective Leverage Ratio Cure
Period, as the case may be.
“Custodian” means a
bank, as defined in Section 2(a)(5) of the 1940 Act, that has the qualifications prescribed in paragraph 1 of Section 26(a) of the 1940
Act, or such other entity as shall be providing custodian services to the
Corporation as permitted by the 1940 Act or any rule, regulation, or order
thereunder, and shall include, as appropriate, any similarly qualified
sub-custodian duly appointed by the Custodian.
“Daily SOFR” means:
(1)
With respect to any Business Day means the secured overnight financing
rate published for
such day by the Federal Reserve Bank of New York, as the
administrator of the
benchmark (or a successor administrator) on the Federal
Reserve Bank of New York’s website (or any successor source)
as of 4:00 p.m. New York City time (such rate being initially published for
such day at 8:00 a.m. and may be revised until 2:30 p.m., New York City time).
(2)
If the secured overnight financing rate cannot be determined with
respect to any Business Day as specified in paragraph (1), unless both a SOFR
Index Cessation Event and a SOFR Index Cessation Date have occurred, then the
Redemption and Paying Agent shall use the secured overnight financing rate in
respect of the last Business Day for which such secured overnight financing
rate was published on the Federal Reserve Bank of New York’s website.
(3)
If a SOFR Index Cessation Event and SOFR Index Cessation Date have
occurred, the Redemption and Paying Agent shall determine the Applicable Base
Rate as if the reference to “75% of Daily SOFR” were a reference to the rate
that was recommended as the replacement for the secured overnight financing
rate by the Federal Reserve Board and/or the Federal Reserve Bank of New York
or a committee officially endorsed or convened by the Federal Reserve Board
and/or the Federal Reserve Bank of New York for the purpose of recommending a
replacement for the secured overnight financing rate (which rate may be
produced by a Federal Reserve Bank or other designated administrator, which
rate may include any adjustments or spreads, and which rate will be reasonably
expected to measure contemporaneous variations in the cost of newly borrowed
funds in U.S. dollars). If no such rate has been recommended within one
Business Day of the SOFR Index Cessation Event, then the Redemption and Paying
Agent shall use the OBFR published on the Federal Reserve Bank of New York’s website for any
Business Day after the SOFR Index Cessation Date (it being understood that the
OBFR for any such Business Day will be the Overnight Bank Funding Rate on the
Federal Reserve Bank of New York’s website as of 4:00 p.m., New York City time).
(4)
If the Redemption and Paying Agent is required to use the OBFR in
paragraph (3) above and an OBFR Index Cessation Event has occurred, then for
any Business Day after the OBFR Index Cessation Date, the Redemption and Paying
Agent shall use the short-term interest rate target set by the Federal Open
Market Committee and published on the Federal Reserve Bank of New York’s website, or if the
Federal Open Market Committee has not set a single rate, the mid-point of the
short-term interest rate target range set by the Federal Open Market Committee
and published on the Federal Reserve Bank of New York’s website (calculated as the arithmetic average of the
upper bound of the target range and the lower bound of the target range).
(5)
If Daily SOFR determined as above would be less
than zero, then such rate shall be deemed to be zero.
“Date of
Original Issue” means , with
respect to each share of a Series of VMTP Preferred Shares, the date on which
the Corporation issued such VMTP Preferred Share.
“Defeased Securities”
means a security for which cash, cash
equivalents or other eligible property has
been pledged in an amount sufficient to make all required payments on such
security to and including maturity (including any accelerated maturity pursuant
to a permitted redemption), in accordance with the instrument governing the
issuance of such security.
“Deposit
Securities” means, as of any date, any United States
dollar-denominated security or other investment of a type described below that
either (i) is a demand obligation payable to the holder thereof on any Business
Day or (ii) has a maturity date, mandatory redemption date or mandatory payment
date, on its face or at the option of the holder, preceding the relevant
payment date in respect of which such security or other investment has been
deposited or set aside as a Deposit Security:
(1) cash or any cash equivalent;
(2) any U.S. Government Security;
(3) any Municipal
Obligation that has a credit rating from at least one NRSRO that is the highest
applicable rating generally ascribed by such
NRSRO to Municipal Obligations with substantially similar terms as of the date
of these Articles Supplementary (or such rating’s future equivalent), including
(A) any such Municipal Obligation that has been pre-refunded by the issuer
thereof with the proceeds of such refunding having been irrevocably deposited
in trust or escrow for the repayment thereof and (B) any such fixed or variable
rate Municipal Obligation that qualifies as an eligible security under Rule
2a-7 under the 1940 Act as amended or as in effect on the Date of Original
Issue;
(4) any investment in any money market fund registered under the 1940 Act
that qualifies under Rule 2a-7, or similar investment vehicle described in Rule
12dl-l(b)(2) under the 1940 Act, that invests principally in Municipal
Obligations or U.S. Government Securities or any combination thereof; or
(5) any letter of credit
from a bank or other financial institution that has a credit rating from at
least one NRSRO that is the highest applicable rating generally ascribed by
such NRSRO to bank deposits or short-term debt of similar banks or other
financial institutions as of the date of these Articles Supplementary (or such
rating’s future equivalent).
“Derivative Contract”
means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
forward swap transactions, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, futures contracts, repurchase transaction,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any
such transaction is governed by or subject to any master agreement, and (b) any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.
“Derivative
Termination Value” means, in
respect of any one or more Derivative Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Derivative
Contracts, (a) for any date on or after the date such Derivative Contracts have
been closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for such
Derivative Contracts, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such
Derivative Contracts (which may include a Holder or an affiliate of the
Holder).
“Discounted Value”
as of any Valuation Date, shall have the meaning set forth in the Rating
Agency Guidelines.
“Dividend Payment
Date” means the date that is the first Business Day of each calendar month.
“Dividend Period” means,
with respect to the Series W-7 VMTP Preferred Shares, in the case of the first
Dividend Period, for the shares of such Series issued on December 20, 2023, the
period beginning on December 20, 2023, and ending on and including December 31,
2023, and for each subsequent Dividend Period for all shares of such Series,
the period beginning on and including the first calendar day of the month
following the month in which the previous Dividend Period ended and ending on
and including the last calendar day of such month.
“Effective Leverage Ratio”
means the quotient of:
(A) the sum of (i) the aggregate liquidation
preference of the Corporation’s “senior securities” (as that term is defined in
the 1940 Act) that are stock, plus any accumulated but unpaid dividends
thereon, excluding, without duplication, (x) any such senior securities for
which the Corporation has issued a notice of redemption and either has
delivered Deposit Securities or sufficient funds (in accordance with the terms
of such senior securities) to the paying agent for such senior securities or
otherwise has adequate Deposit Securities on hand and segregated on the books
and records of the Custodian for the purpose of such redemption and (y) the
Corporation’s outstanding Preferred Shares to be redeemed with the gross
proceeds from the sale of the VMTP Preferred Shares, for which the Corporation
either has delivered Deposit Securities or sufficient funds (in accordance with
the terms of such senior securities) to the paying agent for such senior
securities or otherwise has adequate Deposit Securities on hand and segregated
on the books and records of the Custodian for the purpose of such redemption;
(ii) the aggregate principal amount of a Corporation’s “senior securities
representing indebtedness” (as that term is defined in the 1940 Act), plus any
accrued but unpaid interest thereon; (iii) the aggregate principal amount of
floating rate trust certificates corresponding to the associated residual
floating rate trust certificates owned by the Corporation (less the aggregate
principal amount of any such floating rate trust certificates owned by the
Corporation and corresponding to the associated residual floating rate trust
certificates owned by the Corporation); and (iv) the aggregate amount of the
Corporation’s repurchase obligations under repurchase agreements.
divided by
(B) the sum of (i) the
Market Value of the Corporation’s total assets (including amounts attributable
to senior securities but excluding, any assets consisting of Deposit Securities
relating to senior securities for which the Corporation has issued a notice of
redemption and either has delivered Deposit Securities or sufficient funds (in
accordance with the terms of such senior securities) to the paying agent for
such senior securities or otherwise has adequate Deposit Securities on hand and
segregated on the books and records of the Custodian for the purpose of such
redemption), less the sum of (A) the amount of the Corporation’s accrued
liabilities (which accrued liabilities shall include
net obligations of the Corporation under each Derivative Contract in an amount
equal to the Derivative Termination Value thereof payable by the Corporation to
the related counterparty), other than liabilities for the aggregate principal
amount of senior securities representing indebtedness, and (B) the
Overconcentration Amount; and (ii) the aggregate principal amount of floating
rate trust certificates corresponding to the associated residual floating rate
trust certificates owned by the Corporation (less the aggregate principal
amount of any such floating rate trust certificates owned by the Corporation
and corresponding to the associated residual floating rate trust certificates
owned by the Corporation).
“Effective Leverage Ratio Cure Period” shall have the meaning
specified in Section 6(b) of these Articles Supplementary.
“Electronic Means”
means email transmission, facsimile transmission or other similar
electronic means of communication providing evidence of transmission (but
excluding online communications systems covered by a separate agreement)
acceptable to the sending party and the receiving party, in any case if
operative as between any two parties, or, if not operative, by telephone
(promptly confirmed by any other method set forth in this definition), which,
in the case of notices to the Redemption and Paying Agent, shall be sent by
such means as set forth in the Redemption and Paying Agent Agreement.
“Eligible Assets” means the instruments
listed on Appendix A hereto.
“Exchange Act” means the U.S. Securities
Exchange Act of 1934, as amended.
“Failure to Deposit” means, with respect to VMTP
Preferred Shares, a failure by the Corporation to pay to the Redemption and
Paying Agent, not later than 12:00 noon, New York City time, (A) on the
Business Day immediately preceding any Dividend Payment Date for such VMTP Preferred
Shares, in
funds available on such Dividend Payment Date in The City of New York, New
York, the full amount of any dividend to be paid on such Dividend Payment Date
on any share of such Series or (B) on the Business Day immediately preceding
any Redemption Date in funds available on such Redemption Date for such VMTP
Preferred Shares in The City of New York, New York, the Redemption Price to be
paid on such Redemption Date for any share of such Series after Notice of
Redemption is provided pursuant to paragraph (c) of Section 10 of these
Articles Supplementary; provided, however, that, notwithstanding
anything expressed or implied herein to the contrary, (i) the foregoing clause
(B) shall not apply to the Corporation’s failure to pay the Redemption Price in
respect of VMTP Preferred Shares when the related Notice of Redemption provides
that redemption of such shares is subject to one or more conditions precedent
and any such condition precedent shall not have been satisfied at the time or
times and in the manner specified in such Notice of Redemption, and (ii) a
Failure to Deposit shall not be deemed to have occurred if the Corporation is unable to make the
payments in clause (A) or clause (B) due to the lack
of legally available funds under Applicable Law or because of any other
Applicable Law restrictions on such payments.
“Fitch” means Fitch
Ratings, a part of the Fitch Group, which is a majority-owned subsidiary of
Fimalac, S.A, or any successor thereto.
“Fitch Discount Factor”
means the discount factors set forth in
the Fitch Guidelines for use in calculating the Discounted Value of the
Corporation’s assets in connection with Fitch ratings of VMTP Preferred Shares at the
request of the Corporation.
“Fitch Eligible Assets”
means
assets of the Corporation set forth in the Fitch Guidelines as eligible for
inclusion in calculating the Discounted Value of the Corporation’s assets in
connection with Fitch ratings of VMTP Preferred Shares at the request of the
Corporation.
“Fitch Guidelines” means the guidelines applicable to Fitch’s then current
ratings of the VMTP Preferred Shares provided by Fitch in connection with
Fitch’s ratings of the VMTP Preferred Shares at the request of the Corporation
(a copy of which is available on request to the Corporation), in effect on the
date hereof and as may be amended from time to time, provided, however that any
such amendment will not be effective for thirty (30) days from the date that
Fitch provides final notice of such amendment to the Corporation or such
earlier date as the Corporation may elect.
“Fitch Provisions”
means Sections 7, 8(c)(B) and 9 of these Articles Supplementary with respect to
Fitch, and any other provisions hereof with respect to Fitch’s ratings of VMTP
Preferred Shares at the request of the Corporation, including any provisions
with respect to obtaining and maintaining a rating on VMTP Preferred Shares
from Fitch. The Corporation is required to comply with the Fitch Provisions
only if Fitch is then rating VMTP Preferred Shares at the request of the
Corporation.
“Gross-up Payment”
means payment to a Beneficial Owner of an amount which, when taken together
with the aggregate amount of Taxable Allocations made to such Beneficial Owner
to which such Gross-up Payment relates, would cause such Beneficial Owner’s
dividends in dollars (after giving effect to regular federal income tax
consequences) from the aggregate of such Taxable Allocations and the related
Gross-up Payment to be equal to the dollar amount of the dividends which would
have been received by such Beneficial Owner if the amount of such aggregate
Taxable Allocations would have been excludable from the gross income of such
Beneficial Owner. Such Gross-up Payment shall be calculated (i) without
consideration being given to the time value of money; (ii) assuming that no
Beneficial Owner of VMTP Preferred Shares is subject to the federal alternative
minimum tax with respect to dividends received from the Corporation; (iii)
assuming that each Taxable Allocation and each Gross-up Payment (except to the
extent such Gross-up Payment is properly designated as an exempt-interest
dividend under Section 852(b)(5) of the Code or successor provisions) would be
taxable in the hands of each Beneficial Owner of VMTP Preferred Shares at the
maximum marginal regular federal individual income tax rate applicable to
ordinary income or net capital gains, as applicable, or the maximum marginal
regular federal corporate income tax rate applicable to ordinary income or net
capital gains, as applicable, whichever is greater, in effect at the time such
Gross-up Payment is made; and (iv) assuming that each
Taxable Allocation and each Gross-up Payment would not be subject to the tax
imposed by Section 1411 of the Code or any similar Medicare or other surtax.
“Holder” means a Person
in whose name a VMTP Preferred Share is registered in the registration books of
the Corporation maintained by the Redemption and Paying Agent.
“Increased Rate Event”
means the occurrence of any of the
following events:
(a)
failure by the Corporation to pay when due the full amount of accrued
but unpaid dividends on any Dividend Payment Date (other than a failure by the
Corporation to so pay due to the lack of legally available funds under
Applicable Law or because of any other Applicable Law restrictions on such
payments). This Increased Rate Event shall be considered cured on the date the
Corporation pays the full amount of such accrued but unpaid dividends;
(b)
failure by the Corporation to make any redemption payment pursuant to
Section 10 of these Articles Supplementary (other than a failure by the
Corporation to so pay due to the lack of legally available funds under
Applicable Law or because of any other Applicable Law restrictions on such
payments). This Increased Rate Event shall be considered cured on the date the
Corporation makes such redemption payment;
(c)
failure by the Corporation to pay when due the full amount of accrued
but unpaid dividends in respect of Gross-up Payments required to be paid
pursuant to Section 3(b), (other than a failure by the Corporation to so pay
due to the lack of legally available funds under Applicable Law or because of
any other Applicable Law restrictions on such payments). This Increased Rate
Event shall be considered cured on the date the Corporation pays the full
amount of such accrued but unpaid dividends in respect of Gross-up Payments
required to paid pursuant to Section 3(b);
(d)
failure by the Corporation to have cured on or before the applicable
Asset Coverage Cure Date any failure to maintain Minimum Asset Coverage as
required by Section 6(a). This Increased Rate Event shall be considered cured
on the date the Corporation next achieves Minimum Asset Coverage;
(e)
failure by the Corporation on the last day of an applicable Effective
Leverage Ratio Cure Period to have an Effective Leverage Ratio of not greater
than 45%. This Increased Rate Event shall be considered cured on the date the
Corporation next has an Effective Leverage Ratio of not greater than 45%;
(f)
failure by the Corporation to make investments only in Eligible Assets
as required by Section 6(c). This Increased Rate Event shall be considered
cured on the date the Corporation has disposed of any investments made in
violation of Section 6(c); provided, that any failure by the Corporation to
comply with the divestiture requirement set forth in the last proviso of
Section 6(c) shall not result in an Increased Rate Event;
(g)
failure by the Corporation to maintain compliance with Section 6(d). This
Increased Rate Event shall be considered cured on the date the Corporation
returns to compliance with Section 6(d);
(h)
the creation, incurrence, or existence of any lien in violation of
Section 6(e). This Increased Rate Event shall be considered cured on the date
that such lien is released or discharged;
(i)
failure by the Corporation on the Basic Maintenance Cure Date to satisfy
the Basic Maintenance Amount as of the Valuation Date pertaining to such Basic
Maintenance Cure Date. This Increased Rate Event shall be considered cured on
the date that the Corporation satisfies the Basic Maintenance Amount as of such
Valuation Date;
(j)
the declaration, payment or setting apart for payments any dividend or
other distribution in violation of Section 8. Such Increased Rate Event shall
be considered cured (i) in the case of any declaration or setting apart for
payment of any dividend or other distribution, on the date such action is
effectively rescinded, set aside, reversed, revoked, or otherwise rendered null
and (ii) in any other case, on the first date thereafter that the Corporation
is not prohibited pursuant to Section 8 from declaring, paying or setting apart
for payment a cash dividend or other cash distribution in respect of the Common
Shares;
(k)
unless pursuant to an order of the court of competent jurisdiction, the
payment or distribution of any assets of the Corporation in violation of
Section 11(b) or 11(c);
(l)
failure of the Corporation to comply with Section 13(h). This Increased
Rate Event will be considered cured on the date the Corporation shall next
maintain settlement of VMTP Preferred Shares in global book entry form through
the Securities Depository;
(m)
failure of the Corporation to comply with Section 13(i). This Increased
Rate Event will be considered cured on the date such filing or application has
been withdrawn, rescinded or dismissed;
(n)
failure of the Corporation to comply with Section 13(u). This Increased
Rate Event will be considered cured on the date the Corporation produces
financial statements audited in accordance with the standards of the Public
Company Accounting Oversight Board (United States);
(o)
any determination is made by the Corporation or the IRS that the VMTP
Preferred Shares are not equity in a regulated investment company for federal
income tax purposes. This Increased Rate Event will be considered cured on the
date such determination is reversed, revoked or rescinded;
(p)
a Registration Rights Failure occurs. This Increased Rate Event will be
considered cured on the date such Registration Rights Failure no longer exists;
(q)
failure by the Corporation to have duly authorized any Related Document.
This Increased Rate Event shall be considered cured on the date the Corporation
duly authorizes each such Related Document that was not previously duly
authorized; or
(r)
failure by the Corporation to provide the information required by
Section 12(b) and such failure is not cured by the fifth Business Day following
written request. This Increased Rate Event shall be considered cured on the
date the Corporation furnishes the information specified in the foregoing
sentence.
“Information
Statement” means the information statement of the Corporation relating
to the
offering and sale of VMTP Preferred Shares, dated December 20, 2023.
“Initial Rate Period,”
with respect to the VMTP Preferred Shares of any Series, means the period
commencing on and including the Date of Original Issue thereof and ending on,
and including the next succeeding Wednesday.
“Investment Adviser”
means BlackRock Advisors, LLC, or any successor investment advisor to the
Corporation.
“Liquidation Preference”
means $100,000 per share.
“Liquidity Account” shall have the meaning specified in paragraph
(b)(ii)(A) of Section 10 of these Articles Supplementary.
“Liquidity Account Initial
Date” means the date which is
six-months prior to the Term Redemption Date.
“Liquidity Account Investments” means
Deposit Securities or any other security or investment owned by the Corporation
that is rated not less than A-/A3 or the equivalent rating (or any such
rating’s future equivalent) by each NRSRO
then rating such security or investment (or if rated by only one NRSRO, by such
NRSRO) or, if no NRSRO is then rating such security, deemed to be of an
equivalent rating by the Investment Adviser on the Corporation’s books and
records.
“Liquidity Requirement”
shall have the meaning specified in paragraph (b)(ii)(B) of Section 10 of
these Articles Supplementary.
“Majority” means the Holders of more than 50% of the aggregate
Outstanding amount of the VMTP Preferred Shares.
“Managed Assets” means the Corporation’s total assets (including any
assets attributable to money borrowed for investment purposes) minus the sum of
the Corporation’s accrued liabilities (other than money borrowed for investment
purposes). For the avoidance of doubt, assets attributable to money borrowed
for investment purposes includes the portion of the Corporation’s assets in a
tender option bond trust of which the Corporation owns the residual interest
(without regard to the value of the residual interest to avoid double
counting).
“Market Value” of any
asset of the Corporation means the market value thereof determined by an
independent third-party pricing service designated pursuant to the
Corporation’s valuation policies and procedures approved from time to time by
the Board of Directors for use in connection with the determination of the
Corporation’s net asset value. Market Value of any asset shall include any
interest or dividends, as applicable, accrued thereon. The pricing service
values portfolio securities at the mean between the quoted bid and asked price
or the yield equivalent when quotations are readily available. Securities for
which quotations are not readily available are valued at fair value as
determined by the pricing service using methods which include consideration of:
yields or prices of municipal bonds of comparable quality, type of issue,
coupon, maturity and rating; indications as to value from dealers; and general
market conditions. The pricing service may employ
electronic data processing techniques or a matrix system, or both, to determine
valuations.
“Maximum Rate” means 15% per annum, increased by any applicable
Gross-up Payment due and payable in accordance with Section 3 of these Articles
Supplementary.
“Minimum Asset Coverage” means
asset coverage, as defined in Section 18(h) of the 1940 Act as in effect on the
Date of Original Issue (excluding from (1) the denominator of such asset
coverage test (i) any such senior securities for which the Corporation has
issued a notice of redemption and either has delivered Deposit Securities or
sufficient funds (in accordance with the terms of such senior securities) to
the paying agent for such senior securities or otherwise has adequate Deposit
Securities or sufficient deposits on hand and segregated on the books and
records of the Custodian for the purpose of such redemption and (ii) the
Corporation’s outstanding Preferred Shares to be redeemed with the gross
proceeds from the sale of the VMTP Preferred Shares, for which the Corporation
either has delivered Deposit Securities or sufficient funds (in accordance with
the terms of such senior securities) to the paying agent for such senior
securities or otherwise has adequate Deposit Securities or sufficient deposits
on hand and segregated on the books and records of the Custodian for the
purpose of such redemption and (2) from the numerator of such asset coverage
test, any Deposit Securities referred to in the previous clause (1)(i) and
(ii)) of at least 225% with respect to all outstanding senior securities of the
Corporation which are stock, including all Outstanding VMTP Preferred Shares
(or, if higher, such other asset coverage as may be specified in or under the
1940 Act as in effect from time to time as the minimum asset coverage for senior
securities which are stock of a closed-end investment company as a condition of
declaring dividends on its common shares or stock).
“Minimum Asset
Coverage Cure Date,” with respect to the failure by the Corporation to
maintain the Minimum Asset Coverage (as required by Section 6 of these Articles
Supplementary), means the tenth (10th) Business Day following such failure.
“Minimum Rate Period”
means any Rate Period consisting of
seven (7) Rate Period Days, as adjusted to reflect any changes when the regular
day that is a Rate Determination Date is not a Business Day.
“Moody’s” means Moody’s Investors Service, Inc., a Delaware
corporation, or any successor thereto.
“Moody’s Discount Factor”
means the discount factors set forth in
the Moody’s Guidelines for use in calculating the Discounted Value of the
Corporation’s assets in connection with Moody’s ratings of VMTP Preferred
Shares at the request of the Corporation.
“Moody’s Eligible Assets”
means assets of the Corporation set forth in the Moody’s Guidelines as
eligible for inclusion in calculating the Discounted Value of the Corporation’s
assets in connection with Moody’s ratings of VMTP Preferred Shares at the
request of the Corporation.
“Moody’s Guidelines” means
the guidelines applicable to Moody’s then current ratings of the VMTP Preferred
Shares, provided by Moody’s in connection with Moody’s ratings of the VMTP
Preferred Shares at the request of the Corporation (a copy of which is
available on request to the Corporation), in effect on the date hereof and as
may be amended from time to time, provided, however
that any such amendment will not be effective for thirty (30) days from the
date that Moody’s provides final notice of such amendment to the Corporation or
such earlier date as the Corporation may elect.
“Moody’s Provisions” means
Sections 7, 8(c)(B) and 9 of these Articles Supplementary with respect to
Moody’s, and any other provisions hereof with respect to Moody’s ratings of
VMTP Preferred Shares at the request of the Corporation, including any
provisions with respect to obtaining and maintaining a rating on VMTP Preferred
Shares from Moody’s. The Corporation is required to comply with the Moody’s
Provisions only if Moody’s is then rating VMTP Preferred Shares at the request
of the Corporation.
“Municipal Obligations”
has the meaning set forth in the
Glossary of the Information Statement.
“Net Tax-Exempt Income”
means the excess of the amount of
interest excludable from gross income under Section 103(a) of the Code over the
amounts disallowed as deductions under Sections 265 and 171(a)(2) of the Code.
“Notice of Redemption” means
any notice with respect to the redemption of VMTP Preferred Shares pursuant to
paragraph (c) of Section 10 of these Articles Supplementary.
“NRSRO” means a “nationally recognized statistical rating
organization” within the meaning of Section 3(a)(62) of the Exchange Act that
is not an “affiliated person” (as defined in Section 2(a)(3) of the 1940 Act)
of the Corporation, including, at the date hereof, Moody’s and Fitch.
“OBFR” means, with respect
to any Business Day, the Overnight Bank Funding Rate on the Federal Reserve
Bank of New York’s website as of 4:00 p.m., New York City time.
“OBFR Index Cessation Date”
means, in respect of an OBFR Index Cessation Event, the date on which the
Federal Reserve Bank of New York (or any successor administrator of the OBFR),
ceases to publish the OBFR, or the date as of which the OBFR may no longer be
used.
“OBFR Index Cessation Event”
means the occurrence of one or more of the following events:
(1)
a public statement by the Federal Reserve Bank of New York (or a
successor administrator of the OBFR) announcing that it has ceased to publish
or provide the OBFR permanently or indefinitely, provided that, at that time,
there is no successor administrator that will continue to publish or provide an
OBFR; or
(2)
the publication of information which reasonably confirms that the
Federal Reserve Bank of New York (or a successor administrator of the OBFR) has
ceased to provide the OBFR permanently or indefinitely, provided that, at that
time, there is no successor administrator that will continue to publish or
provide the OBFR.
“Other Rating Agency”
means each NRSRO, if any, other than
Fitch or Moody’s then providing a rating for the VMTP Preferred Shares at the
request of the Corporation.
“Other Rating Agency Eligible Assets” means
assets of the Corporation set forth in the Other Rating Agency Guidelines as
eligible for inclusion in calculating the Discounted Value of the Corporation’s
assets in connection with Other Rating Agency ratings of VMTP Preferred Shares
at the request of the Corporation.
“Other Rating Agency
Guidelines” means the guidelines applicable to each Other Rating
Agency’s ratings of the VMTP Preferred Shares, provided by such Other Rating
Agency in connection with such Other Rating Agency’s ratings of the VMTP
Preferred Shares at the request of the Corporation (a copy of which is
available on request to the Corporation), as may be amended from time to time,
provided, however that any such amendment will not be effective except as
agreed between such Other Rating Agency and the Corporation or such earlier
date as the Corporation may elect.
“Other Rating Agency
Provisions” means Sections 7, 8(c)(B) and 9 of these Articles Supplementary
with respect to any Other Rating Agency then rating the VMTP Preferred Shares
at the request of the Corporation, and any other provisions hereof with respect
to such Other Rating Agency’s ratings of VMTP Preferred Shares, including any
provisions with respect to obtaining and maintaining a rating on VMTP Preferred
Shares from such Other Rating Agency. The Corporation is required to comply
with the Other Rating Agency Provisions of an Other Rating Agency only if such Other Rating Agency is then
rating VMTP Preferred Shares at the request of the Corporation.
“Outstanding” means, as of any date with respect to the VMTP Preferred
Shares of any Series, the number of VMTP Preferred Shares of such Series
theretofore issued by the Corporation except, without duplication, (i) any VMTP
Preferred Shares of such Series theretofore cancelled or delivered to the
Redemption and Paying Agent for cancellation or redemption by the Corporation,
(ii) any VMTP Preferred Shares of such Series with respect to which the
Corporation has given a Notice of Redemption and irrevocably deposited with the
Redemption and Paying Agent sufficient Deposit Securities to redeem such VMTP
Preferred Shares, pursuant to Section 10 of these Articles Supplementary, (iii)
any VMTP Preferred Shares of such Series as to which the Corporation shall be a
Beneficial Owner, and (iv) any VMTP Preferred Shares of such Series represented
by any certificate in lieu of which a new certificate has been executed and
delivered by the Corporation.
“Overconcentration Amount”
means as of any date of calculation of
the Effective Leverage Ratio, an amount equal to the sum of: (i) the Market
Value of the Corporation’s assets in a single state or territory in excess of
20%; (ii) the Market Value of the Corporation’s assets in a single state or
territory rated lower than A2 by Moody’s or A by S&P or Fitch in excess of
15%; (iii) the Market Value of the Corporation’s assets in a single state or
territory rated lower than Baa3 by Moody’s or BBB- by S&P or Fitch in
excess of 10%; (iv) the Market Value of the Corporation’s assets that
constitute tobacco obligations (excluding tobacco obligations that are Defeased
Securities and tobacco obligations backed by state appropriation) in excess of 10%;
(v) the Market Value of the Corporation’s assets paying less frequently than
semi-annually in excess of 20%; and (vi) the Market Value of the Corporation’s
assets that constitute tobacco obligations backed by state appropriation in
excess of 10%; in each case, as a percentage of the Market Value of the
Corporation’s Managed Assets.
“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.
“Placement Agent” means BlackRock Investments, LLC.
“Placement Agreement”
means the placement agreement, dated as
of the Closing Date, between the Corporation and the Placement Agent with
respect to the offering and sale of the VMTP Preferred Shares.
“Preferred Shares” mean the shares of preferred stock of the Corporation,
and includes the VMTP Preferred Shares.
“Purchase Agreement”
means the VMTP Preferred Shares Purchase
Agreement, dated as of the Closing Date, between the Corporation and the
Purchaser, as amended, modified or supplemented from time to time.
“Purchaser” means the purchaser on the Date of Original Issue as set
forth in the Purchase Agreement.
“QIB” means a “qualified institutional buyer” as defined in
Rule 144A under the Securities Act.
“Rate Determination Date”
means, with respect to any Series of
VMTP Preferred Shares, (i) with respect to the Initial Rate Period for any
Series of VMTP Preferred Shares, the Business Day immediately preceding the
Date of Original Issue of such Series and (ii) with respect to any Subsequent
Rate Period, the last day of a Rate Period for such Series, or if such day is
not a Business Day, the next succeeding Business Day; provided, however,
that the next succeeding Rate Determination Date will be the day of the week
that is the regular Rate Determination Date if such day is a Business Day.
“Rate Period,” with respect to VMTP Preferred Shares, means the
Initial Rate Period and any Subsequent Rate Period.
“Rate Period Days,” for any Rate Period, means the number of days that
would constitute such Rate Period.
“Rating Agency” means each of Fitch (if Fitch is then rating VMTP
Preferred Shares at the request of the Corporation), Moody’s (if Moody’s
is then rating VMTP Preferred Shares at the request of the Corporation) and any
Other Rating Agency (if such Other Rating Agency is then rating VMTP Preferred
Shares at the request of the Corporation).
“Rating Agency Certificate”
has the meaning specified in paragraph
(b) of Section 7 of these Articles Supplementary.
“Rating Agency Eligible
Assets” means assets of the
Corporation set forth in the Rating Agency Guidelines as eligible for inclusion
in calculating the Discounted Value of the Corporation’s
assets in connection with a Rating Agency’s ratings of VMTP Preferred Shares at
the request of the Corporation.
“Rating Agency Guidelines”
means Moody’s Guidelines (if Moody’s is
then rating VMTP Preferred Shares at the request of the Corporation), Fitch
Guidelines (if Fitch is then rating VMTP Preferred Shares at the request of the
Corporation) and any Other Rating Agency Guidelines (if such Other Rating
Agency is then rating VMTP Preferred Shares at the request of the Corporation).
“Rating Agency Provisions”
means the Moody’s Provisions (if Moody’s
is then rating VMTP Preferred Shares at the request of the Corporation), the
Fitch Provisions (if Fitch is then rating VMTP Preferred Shares at the request
of the Corporation) and any Other Rating Agency Provisions (if such Other
Rating Agency is then rating VMTP Preferred Shares at the request of the
Corporation). The Corporation is required to comply with the Rating Agency
Provisions of a Rating Agency only if such Rating Agency is then rating VMTP
Preferred Shares at the request of the Corporation.
“Ratings Spread” means, with respect to any Rate Period for any Series of
VMTP Preferred Shares, the percentage per annum set forth opposite the highest
applicable credit rating assigned to such Series, unless the lowest applicable
credit rating is at or below Al/A+, in which case it shall mean the percentage
per annum set forth opposite the lowest applicable credit rating assigned to
such Series, by either Moody’s (if Moody’s is then rating the VMTP Preferred
Shares at the request of the Corporation), Fitch (if Fitch is then rating the
VMTP Preferred Shares at the request of the Corporation) or Other Rating Agency
(if such Other Rating Agency is then rating the VMTP Preferred Shares at the
request of the Corporation) in the table below on the Rate Determination Date
for such Rate Period:
Moody’s/Fitch*
|
Percentage
|
Aa2/AA to Aaa/AAA
|
0.90%
|
Aa3/AA-
|
0.90%
|
A1/A+
|
1.30%
|
A2/A
|
1.55%
|
A3/A-
|
1.70%
|
Baa1/BBB+
|
2.05%
|
Baa2/BBB
|
2.30%
|
Baa3/BBB-
|
2.80%
|
Non-investment grade or NR
|
3.30%
|
* And/or
the equivalent ratings of an Other Rating Agency then rating the VMTP Preferred
Shares at the request of the Corporation.
“Redemption
Date” has the meaning specified in paragraph (c) of Section 10 of
these Articles Supplementary.
“Redemption and
Paying Agent” means The Bank of New York Mellon which has entered
into an agreement with the Corporation to act in such capacity as the Corporation’s
transfer agent, registrar, dividend disbursing agent, paying agent, redemption
price disbursing agent and calculation agent in connection with the payment of
regularly scheduled dividends with respect to each Series of VMTP Preferred
Shares, or any successor by operation of law
or any successor who acquires all or substantially all of the assets and
assumes all of the liabilities of the Redemption and Paying Agent being
replaced, either directly or by operation of law, provided that such successor
is a licensed banking entity with trust powers or a trust company and have
total assets of at least $50 million.
“Redemption and Paying
Agent Agreement” means the
redemption and paying agent agreement dated as of the Closing Date, between the
Corporation and the Redemption and Paying Agent pursuant to which The Bank of
New York Mellon, or any successor, acts as Redemption and Paying Agent, as
amended, modified or supplemented from time to time.
“Redemption Premium” means with respect of a
VMTP Preferred Share rated above A1/A+ and its equivalent by all Rating
Agencies then rating such VMTP Preferred Share at the request of the
Corporation and subject to any redemption, other than redemptions required to
comply with Minimum Asset Coverage requirements or exceed compliance with the
Minimum Asset Coverage requirements up to 240%, an amount equal to the product
of 1% and the Liquidation Preference of the VMTP Preferred Shares subject to
redemption if the Redemption Date is greater than or equal to fifteen (15)
months from the Term Redemption Date, provided, up to 25% of the Corporation’s
VMTP Preferred Shares Outstanding as of the Closing Date may be redeemed at any
time without a Redemption Premium.
Any VMTP Preferred Share exchanged for the preferred
share of a surviving entity in connection with a reorganization, merger, or
redomestication of the Corporation in another state that had been previously
approved by the Holders of VMTP Preferred Shares or that otherwise does not
require the vote or consent of the Holders of VMTP Preferred Shares shall not
be subject to the Redemption Premium.
“Redemption Price” means the sum of (i) the Liquidation Preference, (ii)
accumulated but unpaid dividends thereon (whether or not declared) to, but not
including, the date fixed for redemption and (iii) the Redemption Premium, if
any.
“Registration Rights
Agreement” means the registration
rights agreement dated as of the Closing Date between the Corporation and DNT
Asset Trust.
“Registration Rights
Failure” means any failure by the
Corporation to (i) use its commercially reasonable efforts to make effective a
Registration Statement with the Securities and Exchange Commission in violation
of the Corporation’s obligations under the Registration Rights Agreement, or
(ii) comply in any material respect with any other material provision of the
Registration Rights Agreement necessary to effect the Registration Statement
(as defined in the Registration Rights Agreement)
which has not been cured within thirty (30) Business Days of the date of such
violation.
“Related Documents” means these Articles Supplementary, the Charter, the
Purchase Agreement, the Registration Rights Agreement, the VMTP Preferred
Shares and the Placement Agreement.
“Rule 2a-7” means Rule 2a-7 under the 1940 Act.
“SEC” means the
Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Securities Depository”
means The Depository Trust Company, New
York, New York, and any substitute for or successor to such securities
depository that shall maintain a book-entry system with respect to the VMTP
Preferred Shares.
“Series of VMTP Preferred Shares” shall have the meaning as set forth in the Recitals of
these Articles Supplementary.
“Series” shall have the meaning as set forth in the Recitals of
these Articles Supplementary.
“SOFR Index Cessation Date”
means, in respect of a SOFR Index Cessation Event, the date on which the
Federal Reserve Bank of New York (or any successor administrator of the secured
overnight financing rate) ceases to publish the secured overnight financing
rate or the date as of which the secured overnight financing rate may no longer
be used.
“SOFR Index Cessation Event”
means the occurrence of one or more of the following events as it relates to
Daily SOFR:
(1)
a public statement by the Federal Reserve Bank of New York (or a
successor administrator of the secured overnight financing rate) announcing
that it has ceased to publish or provide the secured overnight financing rate
permanently or indefinitely, provided that, at that time, there is no successor
administrator that will continue to publish or provide a secured overnight
financing rate; or
(2)
the publication of information which reasonably confirms that the
Federal Reserve Bank of New York (or a successor administrator of the secured
overnight financing rate) has ceased to provide the secured overnight financing
rate permanently or indefinitely, provided that, at that time, there is no
successor administrator that will continue to publish or provide the secured
overnight financing rate.
“Subsequent Rate Period,” with respect to VMTP Preferred Shares, means the
period from, and including, the first day following the Initial Rate Period of
such VMTP Preferred Shares to, and including, the next Rate Determination Date
for such VMTP Preferred Shares and any period thereafter from, and including,
the first day following a Rate Determination Date for such VMTP Preferred
Shares to, and including, the next succeeding Rate Determination Date for such
VMTP Preferred Shares. Each Subsequent Rate Period will be a Minimum Rate
Period.
“Taxable
Allocation” means any payment or
portion of a payment of a dividend that is not designated by the Corporation as
an exempt-interest dividend (as defined in Section 852(b)(5) of the Code).
“Term Redemption Amount”
shall have the meaning specified in
paragraph (b)(ii)(A) of Section 10 of these Articles Supplementary.
“Term Redemption Date”
means, July 2, 2025, or such later date
to which it may be extended in accordance with Section 10(b)(i)(A) of these
Articles Supplementary.
“Total Holders” means, the Holders of 100% of the aggregate Outstanding
amount of the VMTP Preferred Shares.
“U.S. Government Securities”
means direct obligations of the United States or of its agencies or
instrumentalities that are entitled to the full faith and credit of the United
States and that, other than United States Treasury Bills, provide for the
periodic payment of interest and the full payment of principal at maturity or
call for redemption.
“Valuation Date” means, for purposes of determining whether the
Corporation is maintaining the Basic Maintenance Amount, each Monday that is a
Business Day, or for any Monday that is not a Business Day, the immediately
preceding Business Day, and the Date of Original Issue, commencing with the
Date of Original Issue.
“VMTP Preferred Shares”
shall have the meaning as set forth in
the Recitals of these Articles Supplementary.
“Voting Period” shall have the meaning specified in paragraph (b)(i) of
Section 4 of these Articles Supplementary.
TERMS
1.
Number of Authorized Shares.
(a)
Authorized Shares. The initial number of authorized shares of
VMTP Preferred Shares is 2,140.
(b)
Capitalization. So long as any VMTP Preferred Shares are
Outstanding, the Corporation shall not, issue (i) any class or series of shares
ranking prior to or on a parity with VMTP Preferred Shares with respect to the
payment of dividends or the distribution of assets upon dissolution,
liquidation or winding up of the affairs, or (ii) any other “senior security”
(as defined in the 1940 Act as of the Date of Original Issue) of the
Corporation other than the Corporation’s use of tender option bonds, futures,
forwards, swaps and other derivative transactions, except as may be issued in
connection with any issuance of preferred shares or other senior securities
some or all of the proceeds from which issuance are used to redeem all of the
Outstanding VMTP Preferred Shares (provided that the Corporation delivers the
proceeds from such issuance necessary to redeem all of the Outstanding VMTP
Preferred Shares to the Redemption and Paying Agent for investment in Deposit
Securities for the purpose of redeeming such VMTP Preferred
Shares
and issues a Notice of Redemption and redeems such VMTP Preferred Shares as
soon as practicable in accordance with the terms of these Articles
Supplementary).
2.
Dividends.
(a)
Ranking. The shares of any Series of VMTP Preferred Shares
shall rank on a parity with each other, with shares of any other Series of VMTP
Preferred Shares and with shares of any other Series of Preferred Shares as to
the payment of dividends by the Corporation.
(b)
Cumulative Cash Dividends. The Holders of VMTP Preferred
Shares of any Series shall be entitled to receive, when, as and if declared by
the Board of Directors, out of funds legally available therefor under
Applicable Law and otherwise in accordance with the Charter and Applicable Law,
cumulative cash dividends at the Applicable Rate for such VMTP Preferred
Shares, determined as set forth in paragraph (e) of this Section 2, and no more
(except to the extent set forth in Section 3 of these Articles Supplementary),
payable on the Dividend Payment Dates with respect to such VMTP Preferred
Shares determined pursuant to paragraph (d) of this Section 2. Holders of
VMTP Preferred Shares shall not be entitled to any dividend, whether payable in
cash, property or shares, in excess of full cumulative dividends, as herein
provided, on VMTP Preferred Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
VMTP Preferred Shares which may be in arrears, and no additional sum of money
shall be payable in respect of such arrearage, except that the Corporation
shall pay as a supplemental dividend out of funds legally available therefor
under Applicable Law and otherwise in accordance with Applicable Law, the
Additional Amount (as defined below in paragraph (e)(i)(B) of this Section 2)
on account of a Failure to Deposit, if any, in respect of each day during the
period commencing on the day a Failure to Deposit occurs through and including
the day immediately preceding the earlier of (i) the day the Failure to Deposit
is cured and (ii) the third Business Day next succeeding the day on which the
Failure to Deposit occurred.
(c)
Dividends Cumulative from Date of Original Issue. Dividends
on VMTP Preferred Shares of any Series shall be declared daily and accumulate
at the Applicable Rate for such VMTP Preferred Shares from the Date of Original
Issue thereof.
(d)
Dividend Payment Dates. The Dividend Payment Date with
respect to VMTP Preferred Shares shall be the first Business Day of each
calendar month.
(e)
Applicable Rates and Calculation of Dividends.
(i)
Applicable Rates. The dividend rate on VMTP Preferred
Shares of any Series during the period from and after the Date of Original
Issue of such VMTP Preferred Shares to and including the last day of the
Initial Rate Period of such VMTP Preferred Shares shall be calculated by the
Redemption and Paying Agent and shall equal to the rate per annum set
forth with respect to the shares of such Series under “Designation” above. Each
Subsequent Rate Period will be a Minimum Rate
Period. For each Subsequent Rate Period of VMTP Preferred Shares thereafter,
the dividend rate on such VMTP Preferred Shares shall be calculated by the
Redemption and Paying Agent and shall be equal to the rate per annum that
results from the Applicable Rate Determination for such VMTP Preferred Shares
on the Rate Determination Date immediately preceding such Subsequent
Rate Period which shall be the sum of the (1) Applicable
Base Rate and (2) Ratings Spread; provided, however, that:
(A)
if an Applicable Rate Determination for any such Subsequent Rate Period
is not held for any reason, the dividend rate on such VMTP Preferred Shares for
such Subsequent Rate Period will be adjusted to the Maximum Rate for such VMTP
Preferred Shares on the Rate Determination Date therefor;
(B)
if any Failure to Deposit shall have occurred with respect to such VMTP
Preferred Shares during any Dividend Period thereof, but, prior to 12:00 noon,
New York City time, on the third Business Day next succeeding the date on which
such Failure to Deposit occurred, such Failure to Deposit shall have been cured
in accordance with paragraph (f) of this Section 2 and the Corporation shall
have paid to the Redemption and Paying Agent, an additional amount out of
legally available funds therefor under Applicable Law and otherwise in
accordance with Applicable Law (the “Additional Amount”), daily
supplemental dividends equal in the aggregate to the sum of (1) if such Failure
to Deposit consisted of the failure to timely pay to the Redemption and Paying
Agent the full amount of dividends with respect to any Dividend Period of such
VMTP Preferred Shares, an amount computed by multiplying (x) the Applicable Rate
for the Rate Period during which such Failure to Deposit occurs on the Dividend
Payment Date for such Dividend Period plus 2.00% by (y) a fraction, the
numerator of which shall be the number of days for which such Failure to
Deposit has not been cured in accordance with paragraph (f) of this Section 2 (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 Outstanding
shares of such Series (with the amount for each individual day that such Failure
to Deposit occurs or continues uncured being declared as a supplemental
dividend on that day) and (2) if such Failure to Deposit consisted of the
failure to timely pay to the Redemption and Paying Agent the Redemption Price
of the shares, if any, of such Series for which Notice of Redemption has been
provided by the Corporation pursuant to paragraph (c) of Section 10 of these
Articles Supplementary, an amount computed by multiplying, (x) for the Rate
Period during which such Failure to Deposit occurs on the Redemption Date, the
Applicable Rate plus 2.00% by (y) a fraction, the numerator of which
shall be the number of days for which such Failure to Deposit is not cured in
accordance with paragraph (f) of this Section 2 (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
Outstanding
shares of such Series to be redeemed (with the amount for each individual day
that such Failure to Deposit occurs or continues uncured being declared as a
supplemental dividend on that day), and if a Rate Determination Date occurs on
the date on which such Failure to Deposit occurred or on either of the two
Business Days succeeding that date, and the Failure to Deposit has not been
cured on such Rate Determination Date in accordance with paragraph (f) of this
Section 2, no Applicable Rate Determination will be held in respect of such
VMTP Preferred Shares for the Subsequent Rate Period relating to such Rate
Determination Date and the dividend rate for such VMTP Preferred Shares for
such Subsequent Rate Period will be the Maximum Rate for such VMTP Preferred
Shares on the Rate Determination Date for such Subsequent Rate Period; or
(C)
Upon the occurrence of an Increased Rate Event, for each day from
(and including) the day the Increased Rate Event first occurs to (and
excluding) the day the Increased Rate Event is cured, the dividend rate shall
be a rate equal to the lesser of (x) the sum of (I) the dividend rate otherwise determined pursuant to the provisions of
Section 2(e)(i)(A) and (B) and (II) 2.00% and (y) the Maximum Rate.
Each dividend rate determined in accordance with this
paragraph (e)(i) of Section 2 of these Articles Supplementary shall be an
“Applicable Rate.”
(ii)
Calculation of Dividends. The amount of dividends per share
payable on VMTP Preferred Shares of a Series on any Dividend Payment Date shall
be calculated by the Redemption and Paying Agent and shall equal the sum of the
dividends accumulated but not yet paid for each Rate Period (or part thereof)
in the related Dividend Period or Dividend Periods. The amount of dividends
accumulated for each such Rate Period (or part thereof) shall be computed by
multiplying the Applicable Rate in effect for VMTP Preferred Shares of such
Series for such Rate Period (or part thereof) by a fraction, the numerator of
which shall be the number of days in such Rate Period (or part thereof) and the
denominator of which shall be the actual number of days in the year (365 or
366), and multiplying such product by $100,000.
(f)
Curing a Failure to Deposit. A Failure to Deposit with
respect to shares of a Series of VMTP Preferred Shares shall have been cured
(if such Failure to Deposit is not solely due to the willful failure of the
Corporation to make the required payment to the Redemption and Paying Agent)
with respect to any Dividend Period of such VMTP Preferred Shares if, within
the respective time periods described in paragraph (e)(i) of this Section 2,
the Corporation shall have paid to the Redemption and Paying Agent (A) all
accumulated but unpaid dividends on such VMTP Preferred Shares and (B) without
duplication, the Redemption Price for shares, if any, of such Series for which
Notice of Redemption has been provided by the Corporation pursuant to paragraph
(c) of Section 10 of these Articles Supplementary; provided, however, that the
foregoing clause (B) shall not apply to the Corporation’s failure to pay the
Redemption Price in respect of
VMTP Preferred Shares
when the related Notice of Redemption provides that redemption of such shares
is subject to one or more conditions precedent and any such condition precedent
shall not have been satisfied at the time or times and in the manner specified
in such Notice of Redemption.
(g)
Dividend Payments by Corporation to Redemption and Paying Agent.
In connection with each Dividend Payment Date for VMTP Preferred Shares, the
Corporation shall pay to the Redemption and Paying Agent, not later than 12:00
noon, New York City time, on the earlier of(A) the third (3rd) Business Day
next succeeding the Rate Determination Date immediately preceding the Dividend
Payment Date and (B) the Business Day immediately preceding the Dividend
Payment Date, an aggregate amount of Deposit Securities equal to the dividends
to be paid to all Holders of VMTP Preferred Shares on such Dividend Payment
Date as determined in accordance with Section 2(e)(ii) of these Articles
Supplementary or as otherwise provided for. If an aggregate amount of funds
equal to the dividends to be paid to all Holders of VMTP Preferred Shares on
such Dividend Payment Date are not available in New York, New York, by 12:00
noon, New York City time, on the Business Day immediately preceding such
Dividend Payment Date, the Redemption and Paying Agent will notify the Holders
by Electronic Means of such fact prior to the close of business on such day.
(h)
Redemption and Paying Agent as Trustee of Dividend Payments by
Corporation. All Deposit Securities paid to the Redemption and
Paying Agent for the payment of dividends shall be held in trust for the
payment of such dividends by the Redemption and Paying Agent for the benefit of
the Holders specified in paragraph (i) of this Section 2. The Redemption and
Paying Agent shall notify the Corporation by Electronic Means of the amount of
any funds deposited with the Redemption and Paying Agent by the Corporation for
any reason under the Redemption and Paying Agent Agreement, including for the
payment of dividends or the redemption of VMTP Preferred Shares, that remain
with the Redemption and Paying Agent after ninety (90) days from the date of
such deposit and such amount shall, to the extent permitted by law, be repaid
to the Corporation by the Redemption and Paying Agent upon request by
Electronic Means of the Corporation. The Corporation’s obligation to pay
dividends to Holders in accordance with the provisions of these Articles
Supplementary shall be satisfied upon payment by the Redemption and Paying
Agent of such Dividends to the Securities Depository on the relevant Dividend
Payment Date.
(i)
Dividends Paid to Holders. Each dividend on VMTP Preferred Shares
shall be declared daily to the Holders thereof at the close of business on each
such day and paid on each Dividend Payment Date to the Holders thereof at the
close of business on the day immediately preceding such Dividend Payment Date. In
connection with any transfer of VMTP Preferred Shares, the transferor as
Beneficial Owner of VMTP Preferred Shares shall be deemed to have agreed
pursuant to the terms of the VMTP Preferred Shares to transfer to the
transferee the right to receive from the Corporation any dividends declared and
unpaid for each day prior to the transferee becoming the Beneficial Owner of
the VMTP Preferred Shares in exchange for payment of the purchase price for
such VMTP Preferred Shares by the transferee. In connection with any transfer
of VMTP Preferred Shares, the transferee as Beneficial Owner of VMTP Preferred
Shares shall be deemed to have agreed pursuant to the terms of the VMTP
Preferred Shares to transfer to the transferor (or prior Holder) the right to
receive from the Corporation any dividends in the nature of Gross-up Payments
that relate to dividends paid during the transferor’s (or prior Holder’s)
holding period.
(j)
Dividends Credited Against Earliest Accumulated But Unpaid Dividends.
Any dividend payment made on VMTP Preferred Shares that is insufficient to
cover the entire amount of dividends payable shall first be credited against
the earliest accumulated but unpaid dividends due with respect to such VMTP
Preferred Shares. Dividends in arrears for any past Dividend Period may be
declared and paid at any time, without reference to any regular Dividend
Payment Date, to the Holders as their names appear on the record books of the
Corporation on such date, not exceeding fifteen (15) days preceding the payment
date thereof, as may be fixed by the Board of Directors.
(k)
Dividends Designated as Exempt-Interest Dividends. Dividends
on VMTP Preferred Shares shall be designated as exempt-interest dividends up to
the amount of the Net Tax-Exempt Income of the Corporation, to the extent
permitted by, and for purposes of, Section 852 of the Code.
3.
Gross-Up Payments and Notice of Allocations. Holders of
VMTP Preferred Shares shall be entitled to receive, when, as and if declared by
the Board of Directors, out of funds legally available therefor under
Applicable Law and otherwise in accordance with Applicable Law, dividends in an
amount equal to the aggregate Gross-up Payments as follows:
(a)
Whenever the Corporation intends or expects to include any net capital
gains or ordinary income taxable for regular federal income tax purposes in any
dividend on VMTP Preferred Shares, the Corporation shall notify the Redemption
and Paying Agent of the amount to be so included (i) not later than fourteen
(14) calendar days preceding the first Rate Determination Date on which the
Applicable Rate for such dividend is to be established, and (ii) for any
successive Rate Determination Date on which the Applicable Rate for such
dividend is to be established, not later than the close of business on the
immediately preceding Rate Determination Date. Whenever such advance notice is
received from the Corporation, the Redemption and Paying Agent will notify each
Holder and each potential Beneficial Owner or its Agent Member. With respect to
a Rate Period for which such advance notice was given and whose dividends are
comprised partly of such ordinary income or capital gains and partly of
exemptinterest income, the different types of income will be paid in the same
relative proportions for each day during the Rate Period.
(b)
(i) If the Corporation allocates, under Subchapter M of Chapter 1 of the
Code, any net capital gains or ordinary income taxable for regular federal
income tax purposes to a dividend paid on VMTP Preferred Shares the Corporation
shall to the extent practical simultaneously increase such dividend payment by
an additional amount equal to the Gross-up Payment and direct the Redemption
and Paying Agent to send notice with such dividend describing the Gross-up
Payment and (ii) if the Corporation allocates, under Subchapter M of Chapter 1
of the Code, any net capital gains or ordinary income taxable for regular
federal income tax purposes to a dividend paid on VMTP Preferred Shares without
simultaneously increasing such dividend as describe in clause (i) above the
Corporation shall, prior to the end of the calendar year in which such dividend
was paid, direct the Redemption and Paying Agent to send notice with a Gross-up
Payment to the Holder that was entitled to such dividend payment during such
calendar year at such Holder’s address as the same appears or last appeared on the
record books of the Corporation.
(c)
The Corporation shall not be required to make Gross-up Payments with
respect to any net capital gains or ordinary income determined by the Internal
Revenue Service to be allocable in a manner different from the manner used by
the Corporation.
4.
Voting Rights.
(a)
One Vote Per VMTP Preferred Share. Except as otherwise
provided in the Charter or as otherwise required by law, (i) each Holder of
VMTP Preferred Shares shall be entitled to one vote for each VMTP Preferred
Share held by such Holder on each matter submitted to a vote of stockholders of
the Corporation, and (ii) the holders of outstanding Preferred Shares,
including each VMTP Preferred Share, and of Common Shares shall vote together
as a single class; provided, however, that the holders of
outstanding Preferred Shares, including VMTP Preferred Shares, voting together
as a class, to the exclusion of the holders of all other securities and classes
of stock of the Corporation, shall be entitled to elect two directors of the
Corporation at all times, each Preferred Share, including each VMTP Preferred
Share, entitling the holder thereof to one vote. Subject to paragraph (b) of
this Section 4, the holders of outstanding Common Shares and Preferred Shares,
including VMTP Preferred Shares, voting together as a single class, shall elect
the balance of the directors.
(b)
Voting for Additional Directors.
(i)
Voting Period. During any period in which any one or more of the
conditions described in subparagraphs (A) or (B) of this paragraph (b)(i) shall
exist (such period being referred to herein as a “Voting Period”), the
number of directors constituting the Board of Directors shall be automatically
increased by the smallest number that, when added to the two directors elected
exclusively by the holders of Preferred Shares, including VMTP Preferred
Shares, would constitute a majority of the Board of Directors as so increased by
such smallest number; and the holders of Preferred Shares, including VMTP
Preferred Shares, shall be entitled, voting together as a single class on a
one-vote-per-share basis (to the exclusion of the holders of all other
securities and classes of stock of the Corporation), to elect such smallest
number of additional directors, together with the two directors that such
holders are in any event entitled to elect. A Voting Period shall commence:
(A)
if at the close of business on any Dividend Payment Date accumulated
dividends (whether or not earned or declared) on any outstanding Preferred
Shares, including VMTP Preferred Shares, equal to at least two full years’
dividends shall be due and unpaid and sufficient cash or specified securities
shall not have been deposited with the Redemption and Paying Agent for the
payment of such accumulated dividends; or
(B)
if at any time holders of Preferred Shares are entitled under the 1940
Act to elect a majority of the directors of the Corporation.
Upon the
termination of a Voting Period, the voting rights described in this paragraph
(b)(i) shall cease, subject always, however, to the revesting of such voting rights in the holders of Preferred Shares
upon the further occurrence of any of the events described in this paragraph (b)(i).
(ii)
Notice of Special Meeting. As soon as reasonably practicable
after the accrual of any right of the holders of Preferred Shares to elect
additional directors as described in paragraph (b)(i) of this Section 4, the
Corporation may call a special meeting of such holders, such call to be made by
notice as provided in the bylaws of the Corporation, such meeting to be held
not less than ten (10) nor more than sixty (60) days after the date of mailing
of such notice. If a special meeting is not called by the Corporation, it may
be called by any such holder on like notice. The record date for determining
the holders entitled to notice of and to vote at such special meeting shall be
not less than ten (10) days nor more than sixty (60) prior to the date of such
special meeting. At any such special meeting and at each meeting of holders of
Preferred Shares held during a Voting Period at which directors are to be
elected, such holders, voting together as a class (to the exclusion of the
holders of all other securities and classes of stock of the Corporation), shall
be entitled to elect the number of directors prescribed in paragraph (b)(i) of
this Section 4 on a one-vote-per-share basis.
(iii)
Terms of Office of Existing Directors. The terms of office of all
persons who are directors of the Corporation at the time of a special meeting
of Holders and holders of other Preferred Shares to elect directors shall
continue, notwithstanding the election at such meeting by the Holders and such
other holders of other Preferred Shares of the number of directors that they
are entitled to elect, and the persons so elected by the Holders and such other
holders of other Preferred Shares, together with the two incumbent directors
elected by the Holders and such other holders of other Preferred Shares and the
remaining incumbent directors elected by the holders of the Common Shares and
Preferred Shares, shall constitute the duly elected directors of the
Corporation.
(iv)
Terms of Office of Certain Directors to Terminate Upon Termination of
Voting Period. Simultaneously with the termination of a Voting Period, the
terms of office of the additional directors elected by the Holders and holders
of other Preferred Shares pursuant to paragraph (b)(i) of this Section 4 shall
terminate, the remaining directors shall constitute the directors of the
Corporation and the voting rights of the Holders and such other holders to
elect additional directors pursuant to paragraph (b)(i) of this Section 4 shall
cease, subject to the provisions of the last sentence of paragraph (b)(i) of
this Section 4.
(c)
1940 Act Matters. The affirmative vote of the holders of a
“majority of the outstanding Preferred Shares,” including the VMTP Preferred
Shares, Outstanding at the time, voting as a separate class, shall be required
to approve (A) any conversion of the Corporation from a closed-end to an
open-end investment company, (B) any plan of reorganization (as such term is
used in the 1940 Act) adversely affecting such shares and (C) any action
requiring a vote of security holders of the Corporation under Section 13(a) of
the 1940 Act.
For purposes of the foregoing,
“majority of the outstanding Preferred Shares” means (i) 67% or more of such
shares present at a meeting, if the Holders of more than 50% of such shares are
present or represented by proxy, or (ii) more than 50% of such shares,
whichever is less. In the event a vote of Holders of VMTP Preferred Shares is
required pursuant to the provisions of Section 13(a)
of the 1940 Act, the Corporation shall, not later than ten (10) Business Days
prior to the date on which such vote is to be taken, notify Moody’s (if Moody’s
is then rating the VMTP Preferred Shares at the request of the Corporation),
Fitch (if Fitch is then rating the VMTP Preferred Shares at the request of the
Corporation) and Other Rating Agency (if any Other Rating Agency is then rating
the VMTP Preferred Shares at the request of the Corporation) that such vote is .to be taken and the nature of the action with
respect to which such vote is to be taken.
(d)
Exclusive Right to Vote on Certain Charter Matters. Notwithstanding
the foregoing, and except as otherwise required by the Charter or Applicable
Law, (i) Holders of Outstanding VMTP Preferred Shares will be entitled as a
Series, to the exclusion of the holders of all other securities, including
other Preferred Shares, Common Shares and other classes of capital stock of the
Corporation, to vote on matters adversely affecting VMTP Preferred Shares that
do not adversely affect any of the rights of holders of such other securities,
including other Preferred Shares, Common Shares and other classes of capital
stock and (ii) Holders of Outstanding VMTP Preferred Shares will not be
entitled to vote on matters adversely affecting any other Preferred Shares,
Common Shares and other classes of capital stock that do not adversely affect
any of the rights of Holders of the VMTP Preferred Shares.
(e)
Voting Rights Set Forth Herein are Sole Voting Rights. Unless
otherwise required by law, the Holders of VMTP Preferred Shares shall not have
any relative rights or preferences or other special rights other than those
specifically set forth herein.
(f)
No Preemptive Rights or Cumulative Voting. The Holders of
VMTP Preferred Shares shall have no preemptive rights or rights to cumulative
voting.
(g)
Voting for Directors Sole Remedy for Corporation’s Failure to Pay
Dividends. In the event that the Corporation fails to pay any dividends
on the VMTP Preferred Shares, the exclusive remedy of the Holders shall be the
right to vote for directors pursuant to the provisions of this Section 4.
(h)
Holders Entitled to Vote. For purposes of determining any
rights of the Holders to vote on any matter, whether such right is created by
these Articles Supplementary, by the other provisions of the Charter, by
statute or otherwise by Applicable Law, no Holder shall be entitled to vote any
VMTP Preferred Shares and no VMTP Preferred Shares shall be deemed to be
“Outstanding” for the purpose of voting or determining the number of VMTP
Preferred Shares required to constitute a quorum if, prior to or concurrently
with the time of determination of VMTP Preferred Shares entitled to vote or
VMTP Preferred Shares deemed Outstanding for quorum purposes, as the case may
be, the requisite Notice of Redemption with respect to such VMTP Preferred
Shares shall have been provided as set forth in paragraph (c) of Section 10 of
these Articles Supplementary and Deposit Securities in an amount equal to the
Redemption Price for the redemption of such VMTP Preferred Shares shall have
been deposited in trust with the Redemption and Paying Agent for that purpose. VMTP
Preferred Shares held (legally or beneficially) by the Corporation or any
affiliate of the Corporation or otherwise controlled by the Corporation shall
not have any voting rights or be deemed to be Outstanding for voting or for
calculating the voting percentage required on any other matter or other
purposes.
(i)
Grant of Irrevocable Proxy. To the fullest extent permitted by
Applicable Law, each Holder may in its discretion grant an irrevocable proxy.
5.
Amendments.
(a) Except as may be otherwise
expressly provided in respect of a particular provision of these Articles
Supplementary or as otherwise required by Applicable Law, these Articles
Supplementary may be amended only upon the affirmative vote or written consent
of (1) a majority of the Board of Directors and (2) the Holders of a majority
of the Outstanding VMTP Preferred Shares.
(b)
Notwithstanding Section 5(a) of these Articles Supplementary, except as
may be otherwise expressly provided by Sections 5(f), 5(g) or 5(h) of these
Articles Supplementary or as otherwise required by Applicable Law, so long as
any VMTP Preferred Shares are Outstanding, (x) the definitions of “Eligible
Assets” (including Appendix A hereto) and “Minimum Asset Coverage” and (y)
Sections l(b), 6(a), 6(b), 6(c), 6(d), paragraphs (A) through (D) of 10(b)(ii),
13(h) and 13(i) of these Articles Supplementary may be amended only upon the
affirmative vote or written consent of (1) a majority of the Board of Directors
and (2) the Holders of 66 2/3% of the Outstanding VMTP Preferred Shares. No
amendment to paragraphs (A) through (D) of Section 10(b)(ii) of these Articles
Supplementary shall be effective unless the Corporation has received written confirmation
from each Rating Agency, as applicable, then rating the VMTP Preferred Shares
at the request of the Corporation, that such amendment will not adversely
affect the rating then assigned by such Rating Agency to the VMTP Preferred
Shares.
(c)
Notwithstanding Sections 5(a) and 5(b) of these Articles Supplementary,
except as may be otherwise expressly provided by Sections 5(f), 5(g) or 5(h) of
these Articles Supplementary or as otherwise required by Applicable Law, the
provisions of these Articles Supplementary set forth under (x) the caption
“Designation” (but only with respect to any VMTP Preferred Shares already
issued and Outstanding), (y) Sections l(a) (but only with respect to any VMTP
Preferred Shares already issued and Outstanding), 2(a), 2(b), 2(c), 2(d),
2(e)(i), 2(e)(ii), 2(k), 3(b), 8, 10(a)(i), 10(b)(i), 10(h), 11(a), 11(b) or 11(c)
of these Articles Supplementary and (z) the definitions “Additional Amount”,
“Applicable Base Rate”, “Applicable Rate”, “Dividend Payment Date”, “Dividend
Period”, “Effective Leverage Ratio”, “Failure to Deposit”, “Gross-up Payment”,
“Liquidation Preference”, “Maximum Rate”, “Outstanding”, “Rate Determination Date”,
“Ratings Spread”, “Redemption Premium”, “Redemption Price”, “Subsequent Rate
Period” or “Term Redemption Date” (i) (A) may be amended so as to adversely
affect the amount, timing, priority or taxability of any dividend, redemption
or other payment or distribution due to the Holders or (B) may amend the
definition of “Effective Leverage Ratio” or the calculation thereof, in each
case, only upon the affirmative vote or written consent of (1) a majority of
the Board of Directors and (2) the Total Holders and (ii) may be otherwise
amended upon the affirmative vote or written consent of (1) a majority of the
Board of Directors and (2) the holders of 66 2/3% of the Outstanding VMTP
Preferred Shares.
(d)
If any action set forth above in Sections 5(a) to 5(c) would adversely
affect the rights of one or more Series (the “Affected Series”) of VMTP
Preferred Shares in a manner different from any other Series of VMTP Preferred
Shares, except as may be otherwise expressly provided as to a particular
provision of these Articles Supplementary or as otherwise required by
Applicable Law, the affirmative vote or consent of
Holders of the corresponding percentage of the Affected Series Outstanding (as
set forth in Section 5(a), (b) or (c)), shall also be required.
(e)
Any amendment that amends a provision of these Articles Supplementary,
the Charter or the VMTP Preferred Shares that requires the vote or consent of
Holders of a percentage greater than a Majority shall require such specified
percentage to approve any such proposed amendment.
(f)
Notwithstanding paragraphs (a) through (e) above or anything expressed
or implied to the contrary in these Articles Supplementary, but subject to
Applicable Law, a majority of the Board of Directors may, by resolution duly
adopted, without stockholder approval, but with at least 20 Business Days prior
written notice to the Holders, amend or supplement these Articles Supplementary
(1) to the extent not adverse to any Holder, to supply any omission, or cure, correct or supplement any
ambiguous, defective or inconsistent provision hereof; provided that if Holders
of at least 66 2/3% of the VMTP Preferred Shares Outstanding, indicate in
writing that they are adversely affected thereby not later than five (5)
Business Days prior to the effective date of any such amendment or supplement,
the Corporation either shall not make any such amendment or supplement or may
seek arbitration with respect to such matter (at the expense of the Corporation),
or (2) to reflect any amendments or supplements hereto which the Board of
Directors is expressly entitled to adopt pursuant to the terms of these
Articles Supplementary without stockholder approval, including without
limitation, (i) amendments pursuant to Section 5(g) of these Articles
Supplementary, (ii) amendments the Board of Directors deem necessary to conform
these Articles Supplementary to the requirements of Applicable Law or the
requirements of the Internal Revenue Code, (iii) amendments to effect or
implement any plan of reorganization among the Corporation and any registered
investment companies under the 1940 Act that has been approved by the requisite
vote of the Corporation’s shareholders, or (iv) to designate additional Series of
VMTP Preferred Shares (and terms relating thereto) to the extent permitted by
these Articles Supplementary, the VMTP Preferred Shares or the Charter. Any
arbitration commenced pursuant to clause 1 of the immediately preceding
sentence shall be conducted in New York, New York and in accordance with the
American Arbitration Association rules.
(g)
Notwithstanding anything expressed or implied to the contrary in these
Articles Supplementary, the Board of Directors may, subject to this Section
5(g), at any time, terminate the services of a Rating Agency then providing a
rating for VMTP Preferred Shares of such Series with or without replacement, in
either case, without the approval of Holders of VMTP Preferred Shares of such
Series or other stockholders of the Corporation.
(i)
Notwithstanding anything herein to the contrary, the Board of Directors,
without the approval of Holders of VMTP Preferred Shares or other stockholders
of the Corporation, may terminate the services of any Rating Agency then
providing a rating for a Series of VMTP Preferred Shares and replace it with
another Rating Agency, provided that the Corporation provides seven (7) days’
notice by Electronic Means to Holders of VMTP Preferred Shares of such Series
prior to terminating the services of a Rating Agency and replacing it with
another Rating Agency. In the event a Rating Agency ceases to furnish a
preferred stock rating or the Corporation terminates a Rating Agency with
replacement in accordance with this clause (i), the Corporation shall no longer
be required to comply with the Rating Agency Provisions of the Rating Agency so
terminated and, as applicable,
the Corporation shall
be required to thereafter comply with the Rating Agency Provisions of each
Rating Agency then providing a rating for the VMTP Preferred Shares of such
Series at the request of the Corporation.
(ii)
(A) Notwithstanding anything herein to the contrary, the Board of
Directors, without the approval of Holders of VMTP Preferred Shares or other
stockholders of the Corporation, may terminate the services of any Rating
Agency then providing a rating for a Series of VMTP Preferred Shares without
replacement, provided that (I) the Corporation has given the Redemption and Paying
Agent, such terminated Rating Agency, and Holders of VMTP Preferred Shares of
such Series at least forty-five (45) calendar days’ advance written notice of
such termination of services, (II) the Corporation is in compliance with the
Rating Agency Provisions of such terminated Rating Agency at the time the
notice required in clause (I) hereof is given and at the time of the
termination of services, and (III) the VMTP Preferred Shares of such Series
continue to be rated by at least one NRSRO at and after the time of the
termination of services.
(B)
On the date that the notice is given as described in the preceding
clause (A) and on the date that the services of the applicable Rating Agency is
terminated, the Corporation shall provide the Redemption and Paying Agent and
such terminated Rating Agency with an officers’ certificate as to the
compliance with the provisions of the preceding clause (A), and, on such later
date and thereafter, the Corporation shall no longer be required to comply with
the Rating Agency Provisions of the Rating Agency whose services were
terminated.
(iii)
Notwithstanding anything herein to the contrary, but subject to
this Section 5(g), the Rating Agency Guidelines, as they may be amended from
time to time by the respective Rating Agency, will be reflected in a written
document and may be amended by the respective Rating Agency without the vote, consent or approval of the Corporation,
the Board of Directors or any holder of Preferred Shares, including any Series of
VMTP Preferred Shares, or any other stockholder of the Corporation. The Board
of Directors, without the vote or consent of any
holder of Preferred Shares, including any Series of VMTP Preferred Shares, or
any other stockholder of the Corporation, may from time to time take such
actions as may be reasonably required in connection with obtaining, maintaining
or changing the rating of any Rating Agency that is then rating the VMTP
Preferred Shares at the request of the Corporation, and any such action will not
be deemed to affect the preferences, rights or powers of Preferred Shares,
including VMTP Preferred Shares, or the Holders thereof, provided that the
Board of Directors receives written confirmation from such Rating Agency, as
applicable, then rating the VMTP Preferred Shares at the request of the
Corporation (with such confirmation in no event being required to be obtained
from a particular Rating Agency with respect to definitions or other provisions
relevant only to and adopted in connection with another Rating Agency’s rating
of any Series of VMTP Preferred Shares) that any such action would not
adversely affect the rating then assigned by such Rating Agency.
(h)
Notwithstanding the foregoing, nothing in this Section 5 is intended in
any way to limit the ability of the Board of Directors to, subject to
Applicable Law, amend or alter any
provisions of these
Articles Supplementary at any time that there are no VMTP Preferred Shares
Outstanding.
6.
Minimum Asset Coverage and Other Financial Requirements.
(a)
Minimum Asset Coverage. The Corporation shall maintain, as of
the last Business Day of each week in which any VMTP Preferred Share is
Outstanding, the Minimum Asset Coverage.
(b)
Effective Leverage Ratio. The Corporation shall maintain an
Effective Leverage Ratio of not greater than 45% (other than solely by reason
of fluctuations in the market value of its portfolio securities). In the event
that the Corporation’s Effective Leverage Ratio exceeds 45% (whether by reason
of fluctuations in the market value of its portfolio securities or otherwise),
the Corporation shall cause the Effective Leverage Ratio to be 45% or lower
within ten (10) Business Days (“Effective Leverage Ratio Cure Period”).
(c)
Eligible Assets. The Corporation shall make investments only
in the Eligible Assets in accordance with the Corporation’s investment
objectives and investment policies.
(d)
Credit Quality. Under normal market conditions, the
Corporation shall invest at least 75% of its Managed Assets in Municipal
Obligations rated, at the time of investment, in one of the four highest rating
categories by at least one NRSRO or, if unrated, determined to be of comparable
quality by the Investment Adviser.
(e)
Liens. The Corporation shall not create or incur or suffer to
be incurred or to exist any lien on any funds, accounts or other property held
under the Charter, except as permitted by the Charter or as arising by
operation of law and except for (i) any lien of the Custodian or any other
Person with respect to the payment of fees or repayment for advances or
otherwise, (ii) any lien arising in connection with any overdrafts incurred by
the Corporation in connection with custody accounts that it maintains, (iii)
any lien that may be incurred in connection with the Corporation’s use of
tender option bonds, (iv) any lien arising in connection with futures,
forwards, swaps and other derivative transactions, and (v) any lien that may be
incurred in connection with the Corporation’s proposed redemption or repurchase
of all of the Outstanding VMTP Preferred Shares (provided that the Corporation
delivers to the Redemption and Paying Agent sufficient Deposit Securities for
the purpose of redeeming the VMTP Preferred Shares, issues a Notice of
Redemption for the VMTP Preferred Shares and redeems such VMTP Preferred Shares
in accordance with the terms of these Articles Supplementary) as soon as
practicable after the incurrence of such lien.
7.
Basic Maintenance Amount.
(a)
So long as VMTP Preferred Shares are Outstanding, the Corporation shall
maintain, on each Valuation Date, and shall verify to its satisfaction that it
is maintaining on such Valuation Date, (i) Moody’s Eligible Assets having an
aggregate Discounted Value equal to or greater than the Basic Maintenance
Amount (if Moody’s is then rating the VMTP Preferred Shares at the request of
the Corporation), (ii) Fitch Eligible Assets having an aggregate Discounted
Value equal to or greater than the Basic Maintenance Amount (if Fitch is then
rating the VMTP Preferred Shares at the request of the Corporation), and (iii)
Other Rating Agency Eligible Assets having an
aggregate
Discounted Value equal to or greater than the Basic Maintenance Amount (if any
Other Rating Agency is then rating the VMTP Preferred Shares at the request of
the Corporation).
(b)
The Corporation shall deliver to each Rating Agency which is then rating
VMTP Preferred Shares at the request of the Corporation and any other party
specified in the Rating Agency Guidelines all certificates that are set forth
in the respective Rating Agency Guidelines regarding Minimum Asset Coverage,
Basic Maintenance Amount and/or related calculations at such times and
containing such information as set forth in the respective Rating Agency
Guidelines (each, a “Rating Agency Certificate”). A failure by the
Corporation to deliver a Rating Agency Certificate with respect to the Basic
Maintenance Amount shall be deemed to be delivery of a Rating Agency
Certificate indicating the Discounted Value for all assets of the Corporation
is less than the Basic Maintenance Amount, as of the relevant Valuation Date; provided,
however, that the Corporation shall have the ability to cure such
failure to deliver a Rating Agency Certificate within one day of receipt of
notice from such Rating Agency that the Corporation failed to deliver such
Rating Agency Certificate.
8.
Restrictions on Dividends and Other Distributions.
(a)
Dividends on Preferred Shares Other Than VMTP Preferred Shares.
Except as set forth in the next sentence, no dividends shall be declared or
paid or set apart for payment on the shares of any class or series of stock of
the Corporation ranking, as to the payment of dividends, on a parity with VMTP
Preferred Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid on the shares of each Series of VMTP
Preferred Shares through their most recent Dividend Payment Date. When
dividends are not paid in full upon the VMTP Preferred Shares through their
most recent Dividend Payment Date or upon the shares of any other class or
series of stock of the Corporation ranking on a parity as to the payment of
dividends with VMTP Preferred Shares through their most recent respective
dividend payment dates, all dividends declared upon VMTP Preferred Shares and
any other such class or series of stock ranking on a parity as to the payment
of dividends with VMTP Preferred Shares shall be declared pro rata so
that the amount of dividends declared per share on VMTP Preferred Shares and
such other class or series of stock shall in all cases bear to each other the
same ratio that accumulated dividends per share on the VMTP Preferred Shares
and such other class or Series of stock bear to each other (for purposes of
this sentence, the amount of dividends declared per VMTP Preferred Share shall
be based on the Applicable Rate for such VMTP Preferred Share effective during
the Dividend Periods during which dividends were not paid in full).
(b)
Dividends and Other Distributions With Respect to Common Shares Under
the 1940 Act. The Board of Directors shall not declare any dividend
(except a dividend payable in Common Shares), or declare any other
distribution, upon the Common Shares, or purchase Common Shares, unless in
every such case the Preferred Shares have, at the time of any such declaration
or purchase, an asset coverage (as defined in and determined pursuant to the
1940 Act) of at least 200% (or such other asset coverage as may in the future
be specified in or under the 1940 Act as the minimum asset coverage for senior
securities which are shares or stock of a closed-end investment company as a
condition of declaring dividends on its common shares or stock) after deducting
the amount of such dividend, distribution or purchase price, as the case may
be.
(c)
Other Restrictions on Dividends and Other Distributions. For
so long as any VMTP Preferred Share is Outstanding, and except as set forth in
paragraph (a) of this Section 8 and paragraph (c) of Section 11 of these
Articles Supplementary, (A) the Corporation shall not declare, pay or set apart
for payment any dividend or other distribution (other than a dividend or
distribution paid in shares of, or in options, warrants or rights to subscribe
for or purchase, Common Shares or other shares, if any, ranking junior to the
VMTP Preferred Shares as to the payment of dividends and the distribution of
assets upon dissolution, liquidation or winding up) in respect of the Common
Shares or any other shares of the Corporation ranking junior to or on a parity
with the VMTP Preferred Shares as to the payment of
dividends or the distribution of assets upon dissolution, liquidation or
winding up, or call for redemption, redeem, purchase or otherwise acquire for
consideration any Common Shares or any other such junior shares (except by conversion
into or exchange for shares of the Corporation ranking junior to the VMTP
Preferred Shares as to the payment of dividends and the distribution of assets
upon dissolution, liquidation or winding up), or any such parity shares (except
by conversion into or exchange for shares of the Corporation ranking junior to
or on a parity with VMTP Preferred Shares as to the payment of dividends and
the distribution of assets upon dissolution, liquidation or winding up), unless
(i) full cumulative dividends on shares of each Series of VMTP Preferred Shares
through its most recently ended Dividend Period shall have been paid or shall
have been declared and sufficient funds for the payment thereof deposited with
the Redemption and Paying Agent and (ii) the Corporation has redeemed the full number
of VMTP Preferred Shares required to be redeemed by any provision for mandatory
redemption pertaining thereto, and (B) the Corporation shall not declare, pay
or set apart for payment any dividend or other distribution (other than a
dividend or distribution paid in shares of, or in options, warrants or rights
to subscribe for or purchase, Common Shares or other shares, if any, ranking
junior to VMTP Preferred Shares as to the payment of dividends and the
distribution of assets upon dissolution, liquidation or winding up) in respect
of Common Shares or any other shares of the Corporation ranking junior to VMTP
Preferred Shares as to the payment of dividends or the distribution of assets
upon dissolution, liquidation or winding up, or call for redemption, redeem,
purchase or otherwise acquire for consideration any Common Shares or any other
such junior shares (except by conversion into or exchange for shares of the
Corporation ranking junior to VMTP Preferred Shares as to the payment of
dividends and the distribution of assets upon dissolution, liquidation or
winding up), unless immediately after such transaction the Discounted Value of
Moody’s Eligible Assets (if Moody’s is then rating the VMTP Preferred Shares at
the request of the Corporation), Fitch Eligible Assets (if Fitch is then rating
the VMTP Preferred Shares at the request of the Corporation) and Other Rating
Agency Eligible Assets (if any Other Rating Agency is then rating the VMTP
Preferred Shares at the request of the Corporation) would each at least equal
the Basic Maintenance Amount.
9.
Rating Agency Restrictions. For so long as any VMTP
Preferred Shares are Outstanding and any Rating Agency is then rating the VMTP
Preferred Shares at the request of the Corporation, the Corporation will not
engage in certain proscribed transactions set forth in the Rating Agency Guidelines,
unless it has received written confirmation from each such Rating Agency that
proscribes the applicable transaction in its Rating Agency Guidelines that any
such action would not impair the rating then assigned by such Rating Agency to
a Series of VMTP Preferred Shares.
10.
Redemption.
(a)
Optional Redemption.
(i)
Subject to the provisions of subparagraph (iii) of this paragraph (a),
VMTP Preferred Shares of any Series may be redeemed, at the option of the
Corporation, at any time, as a whole or from time to time in part, out of funds
legally available therefor under Applicable Law and otherwise in accordance
with Applicable Law, at the Redemption Price; provided, however,
that (A) VMTP Preferred Shares may not be redeemed in part if after such
partial redemption fewer than 50 VMTP Preferred Shares of such Series would
remain Outstanding; and (B) VMTP Preferred Shares are not redeemable by the
Corporation during the Initial Rate Period.
(ii)
If fewer than all of the Outstanding VMTP Preferred Shares of a Series
are to be redeemed pursuant to subparagraph (i) of this paragraph (a), the
number of VMTP Preferred Shares of such Series to be redeemed shall be selected
either pro rata from the Holders of VMTP Preferred Shares of such Series in
proportion to the number of VMTP Preferred Shares of such Series held by such
Holders or by lot or other fair method as determined by the Corporation’s Board
of Directors. The Corporation’s Board of Directors will have the full power and
authority to prescribe the terms and conditions upon which VMTP Preferred
Shares will be redeemed from time to time.
(iii)
The Corporation may not on any date send a Notice of Redemption pursuant
to paragraph (c) of this Section 10 in respect of a redemption contemplated to
be effected pursuant to this paragraph (a) unless on
such date (A) the Corporation has available Deposit Securities with maturity or
tender dates not later than the day preceding the
applicable Redemption Date and having a Market Value not less than the amount
(including any applicable Redemption Premium) due to Holders of VMTP Preferred
Shares by reason of the redemption of such VMTP Preferred Shares on such
Redemption Date and (B) the Discounted Value of Moody’s Eligible Assets (if
Moody’s is then rating the VMTP Preferred Shares at the request of the
Corporation), the Discounted Value of Fitch Eligible Assets (if Fitch is then
rating the VMTP Preferred Shares at the request of the Corporation) and the
Discounted Value of Other Rating Agency Eligible Assets (if any Other Rating
Agency is then rating the VMTP Preferred Shares at the request of the
Corporation) each at least equals the Basic Maintenance Amount, and would at
least equal the Basic Maintenance Amount immediately subsequent to such
redemption if such redemption were to occur on such date. For purposes of
determining in clause (B) of the preceding sentence whether the Discounted
Value of Moody’s Eligible Assets at least equals the Basic Maintenance Amount,
the Moody’s Discount Factors applicable to Moody’s Eligible Assets shall be
determined by reference to the first Exposure Period (as defined in the Moody’s
Guidelines) longer than the Exposure Period then applicable to the Corporation,
as described in the definition of Moody’s Discount Factor herein.
(b)
Term/Mandatory Redemption.
(i)
(A) Term Redemption. The Corporation shall redeem, out of
funds legally available therefor and otherwise in accordance with Applicable
Law, all Outstanding VMTP Preferred Shares on the Term Redemption Date at the
Redemption Price; provided, however, the Corporation shall have
the right, exercisable at any time no earlier than 9 months prior to the Term
Redemption Date, to request that the Total Holders extend the term of the Term
Redemption Date for an additional period as may be agreed
upon
by the Corporation and the Total Holders, which request may be conditioned upon
terms and conditions that are different from the terms and conditions herein.
Each Holder shall, no later than the deadline specified in such request, which
shall not be less than thirty (30) days
after such Holder’s receipt of such request unless otherwise agreed to by such
Holder, notify the Corporation of its acceptance or rejection of such request,
which acceptance by any such Holder may be a Conditional Acceptance conditioned
upon terms and conditions which are different from the terms and conditions
herein or the terms and conditions proposed by the Corporation in making an
extension request. If any Holder fails to notify the Corporation of its
acceptance or rejection of the Corporation’s request for extension by the
deadline specified in such request, the Corporation may either deem such
failure to respond as a rejection of such request or extend the deadline for
such request with respect to such Holder, provided, however, in all cases any
acceptance by a Holder of a request to extend, if any, shall be made pursuant
to an affirmative written acceptance by the Total Holders. If the Total Holders
(or any thereof) provide a Conditional Acceptance, then the Corporation shall,
no later than the deadline specified in the Conditional Acceptance, which shall
not be less than thirty (30) days after the
Corporation’s receipt of the Conditional Acceptance unless otherwise agreed to
by the Corporation, notify the Total Holders of its acceptance or rejection of
the terms and conditions specified in the Conditional Acceptance. If the
Corporation fails to notify the Total Holders by the deadline specified in the
Conditional Acceptance, the Total Holders may either deem such failure to
respond as a rejection of the terms and conditions specified in the Conditional
Acceptance or extend the deadline for such response by the Corporation,
provided, however, in all cases any acceptance by a Holder of a request to
extend, if any, shall be made pursuant to an affirmative written acceptance by
the Total Holders. Each Holder may grant or deny any request for extension of
the Term Redemption Date in its sole and absolute discretion.
(B)
Basic Maintenance Amount, Minimum Asset Coverage and Effective
Leverage Ratio Mandatory Redemption. The Corporation also shall redeem, out
of funds legally available therefor under Applicable Law and otherwise in
accordance with Applicable Law, at the Redemption Price, certain of the VMTP
Preferred Shares, if the Corporation fails to have either Moody’s Eligible
Assets (if Moody’s is then rating the VMTP Preferred Shares at the request of
the Corporation) with a Discounted Value, Fitch Eligible Assets (if Fitch is
then rating the VMTP Preferred Shares at the request of the Corporation) with a
Discounted Value, or Other Rating Agency Eligible Assets (if any Other Rating
Agency is then rating the VMTP Preferred Shares at the request of the
Corporation) with a Discounted Value greater than or equal to the Basic
Maintenance Amount, fails to maintain the Minimum Asset Coverage in accordance
with these Articles Supplementary or fails to maintain the Effective Leverage
Ratio in accordance with paragraph (b) of Section 6 of these Articles
Supplementary, and such failure is not cured on or before the applicable Cure
Date. If a redemption pursuant to this Section 10(b)(i)(B) is to occur, the
Corporation shall cause a Notice of Redemption to be sent to Holders in
accordance with Section 10(c) and cause to be deposited Deposit Securities or
other sufficient funds, out of funds legally available therefor under
Applicable Law and otherwise in accordance with Applicable Law, in trust with
the Redemption and Paying Agent or other applicable paying agent, in each case
in accordance with the terms of the VMTP Preferred Shares to be redeemed. The
number of VMTP Preferred Shares to be
redeemed shall
be equal to the lesser of (A) the sum of (x) the minimum number of VMTP
Preferred Shares, together with all other Preferred Shares subject to
redemption or retirement, the redemption of which, if deemed to have occurred
immediately prior to the opening of business on the applicable Cure Date, would
result in the Corporation’s having each of Moody’s Eligible Assets (if Moody’s
is then rating the VMTP Preferred Shares at the request of the Corporation)
with a Discounted Value, Fitch Eligible Assets (if Fitch is then rating the
VMTP Preferred Shares at the request of the Corporation) with a Discounted
Value and Other Rating Agency Eligible Assets (if any Other Rating Agency is
then rating the VMTP Preferred Shares at the request of the Corporation) with a
Discounted Value greater than or equal to the Basic Maintenance Amount,
maintaining the Minimum Asset Coverage or satisfying the Effective Leverage
Ratio, as the case may be, on the applicable Cure Date and (y) the number of
additional VMTP Preferred Shares of the Corporation may elect to simultaneously
redeem (provided, however, that if there is no such minimum
number of VMTP Preferred Shares and other Preferred Shares the redemption or
retirement of which would have such result, all VMTP Preferred Shares and
Preferred Shares then outstanding shall be redeemed), and (B) the maximum
number of VMTP Preferred Shares, together with all other Preferred Shares
subject to redemption or retirement, that can be redeemed out of funds legally
available therefor under Applicable Law and otherwise in accordance with the
Charter and Applicable Law. In determining the VMTP Preferred Shares required
to be redeemed in accordance with the foregoing, the Corporation shall allocate
the number required to be redeemed to satisfy the Basic Maintenance Amount, the
Minimum Asset Coverage or the Effective Leverage Ratio, as the case may be, pro
rata, by lot or other fair method as determined by the Corporation’s Board
of Directors, among VMTP Preferred Shares and other Preferred Shares (and,
then, pro rata, by lot or other fair method as determined by the
Corporation’s Board of Directors, among each Series of VMTP Preferred Shares)
subject to redemption or retirement. The Corporation shall effect such
redemption on the date fixed by the Corporation therefor, which date shall not
be earlier than ten (10) Business Days nor later than sixty (60) days after the
applicable Cure Date, except that if the Corporation does not have funds
legally available under Applicable Law for the redemption of all of the
required number of VMTP Preferred Shares and other Preferred Shares which are
subject to redemption or retirement or the Corporation otherwise is unable as a
result of Applicable Law to effect such redemption on or prior to sixty (60) days
after the applicable Cure Date, the Corporation shall redeem those VMTP
Preferred Shares and other Preferred Shares which it was unable to redeem on
the earliest practicable date on which it is able to effect such redemption. If
fewer than all of the Outstanding VMTP Preferred Shares are to be redeemed
pursuant to this paragraph (b), the number of VMTP Preferred Shares to be
redeemed shall be redeemed pro rata, by lot or other fair method as determined
by the Corporation’s Board of Directors from the Holders of the VMTP Preferred
Shares in proportion to the number of VMTP Preferred Shares held by such
Holders.
(ii)
(A) On or prior to the Liquidity Account Initial Date with
respect to any Series of VMTP Preferred Shares, the Corporation shall cause the
Custodian to segregate, by means of appropriate identification on its books and
records or otherwise in accordance with the Custodian’s normal procedures, from
the other assets of the Corporation (a “Liquidity Account”) Liquidity
Account Investments with a Market Value equal to at least 110% of the Term
Redemption Amount with respect to such Series. The “Term
Redemption
Amount” for any Series of VMTP Preferred Shares shall be equal to the Redemption
Price to be paid on the Term Redemption Date for such Series, based on the
number of shares of such Series then Outstanding, assuming for this purpose
that the Applicable Rate for such Series in effect
at the time of the creation of the Liquidity Account for such Series will be
the Daily SOFR as in effect at such time of
creation until the Term Redemption Date for such Series. If, on any date after
the Liquidity Account Initial Date, the aggregate Market Value of the Liquidity
Account Investments included in the Liquidity Account for a Series of VMTP
Preferred Shares as of the close of business on any Business Day is less than
110% of the Term Redemption Amount with respect to such Series, then the
Corporation shall cause the Custodian and the Investment Adviser to segregate
additional or substitute assets of the Corporation as Liquidity Account
Investments, so that the aggregate Market Value of the Liquidity Account
Investments included in the Liquidity Account for such Series is at least equal
to 110% of the Term Redemption Amount with respect to such Series not later
than the close of business on the next succeeding Business Day. With respect to
assets of the Corporation segregated as Liquidity Account Investments, the
Investment Adviser, on behalf of the Corporation, shall be entitled to instruct
the Custodian on any date to release any Liquidity Account Investments from
such segregation and to substitute therefor other Liquidity Account
Investments, so long as (x) the assets of the Corporation segregated as
Liquidity Account Investments at the close of business on such date have a
Market Value equal to at least 110% of the Term Redemption Amount with respect
to such Series and (y) the assets of the Corporation designated and segregated
as Deposit Securities at the close of business on such date have a Market Value
equal to at least the Liquidity Requirement (if any) determined in accordance
with paragraph (B) below with respect to such Series for such date. The
Corporation shall cause the Custodian not to permit any lien, security interest
or encumbrance to be created or permitted to exist on or in respect of any
Liquidity Account Investments included in the Liquidity Account for any Series
of VMTP Preferred Shares, other than liens, security interests or encumbrances
arising by operation of law and any lien of the Custodian with respect to the
payment of its fees or repayment for its advances. Notwithstanding anything
expressed or implied herein to the contrary, the assets of the Liquidity
Account shall continue to be assets of the Corporation subject to the interests
of all creditors and stockholders of the Corporation.
(B)
The Market Value of the Deposit Securities held in the Liquidity Account
for a Series of VMTP Preferred Shares, from and after the fifteenth (15th)
day of the calendar month (or if such day is not a Business Day, the next
succeeding Business Day) that is the number of months preceding the month of
the Term Redemption Date for such Series specified in the table set forth
below, shall not be less than the percentage of the Term Redemption Amount for
such Series set forth below opposite such number of months (the “Liquidity
Requirement”), but in all cases subject to the cure provisions of paragraph
(C) below:
Number of Months
Preceding
|
Value of Deposit Securities
as Percentage of Term Redemption Amount
|
5
|
20%
|
4
|
40%
|
3
|
60%
|
2
|
80%
|
1
|
100%
|
|
|
(C)
If the aggregate Market Value of the Deposit Securities included in the
Liquidity Account for a Series of VMTP Preferred Shares as of the close of
business on any Business Day is less than the Liquidity Requirement in respect
of such Series for such Business Day, then the Corporation shall cause the
segregation of additional or substitute Deposit Securities in respect of the
Liquidity Account for such Series, so that the aggregate Market Value of the
Deposit Securities included in the Liquidity Account for such Series is at
least equal to the Liquidity Requirement for such Series not later than the
close of business on the next succeeding Business Day. With respect to Deposit
Securities included in the Liquidity Account, the Investment Adviser, on behalf
of the Corporation, shall be entitled to instruct the Custodian on any date to
release any Deposit Securities from the Liquidity Account and to substitute
therefor other Deposit Securities, so long as the aggregate Market Value of the
Deposit Securities included in the Liquidity Account for such Series is at
least equal to the Liquidity Requirement for such Series not later than the
close of business on the next succeeding Business Day.
(D)
The Deposit Securities included in the Liquidity Account for a Series of
VMTP Preferred Shares may be liquidated by the Corporation, in its discretion,
and the proceeds applied towards payment of the Term Redemption Amount for such
Series. Upon the deposit by the Corporation on the Term Redemption Date with
the Redemption and Paying Agent of the proceeds from the liquidation of the
Deposit Securities having an initial combined Market Value sufficient to effect
the redemption of the VMTP Preferred Shares of a Series on the Term Redemption
Date for such Series, the requirement of the Corporation to maintain a
Liquidity Account for such Series as contemplated by this Section 10(b)(ii)
shall lapse and be of no further force and effect.
(c)
Notice of Redemption. If the Corporation shall determine or
be required to redeem, in whole or in part, VMTP Preferred Shares pursuant to
paragraph (a) or (b)(i) of this Section 10, the Corporation will send a notice
of redemption (the “Notice of Redemption”), by Electronic Means (or by
first class mail, postage prepaid, in the case where the VMTP Preferred Shares
are in physical form) to Holders thereof, or request the Redemption and Paying
Agent, on behalf of the Corporation to promptly do so by Electronic Means (or
by first class mail, postage prepaid, in the case where the VMTP Preferred
Shares are in physical form) so long as the Notice of Redemption is furnished
by the Corporation to the Redemption and Paying Agent in electronic format at
least five (5) Business Days prior to the date a Notice of Redemption is
required to be delivered to the Holders, unless a shorter period of time shall
be acceptable to the Redemption and Paying Agent. A Notice of Redemption shall
be sent to Holders not less than ten (10) days prior to the date fixed for
redemption in such Notice of Redemption (the “Redemption Date”). Each
such Notice of Redemption shall state: (i) the
Redemption Date; (ii) the number of VMTP Preferred Shares to be redeemed and
the Series thereof; (iii) the CUSIP number for VMTP Preferred Shares of such
Series; (iv) the Redemption Price; (v) the place or places where the
certificate(s), if any, for such shares (properly endorsed or assigned for
transfer, if the Board of Directors requires and the Notice of Redemption
states) are to be surrendered for payment of the Redemption Price; (vi) that
dividends on the VMTP Preferred Shares to be redeemed will cease to accumulate
from and after such Redemption Date; and (vii) the provisions of these Articles
Supplementary under which such redemption is made. If fewer than all VMTP
Preferred Shares held by any Holder are to be redeemed, the Notice of
Redemption delivered to such Holder shall also specify the number of VMTP
Preferred Shares to be redeemed from such Holder. The Corporation may provide
in any Notice of Redemption relating to (i) an optional redemption contemplated
to be effected pursuant to Section 10(a) of these Articles Supplementary or
(ii) any redemption of VMTP Preferred Shares not required to be redeemed
pursuant to Section 10(b)(i) of these Articles Supplementary in accordance with
the terms therein that such redemption is subject to one or more conditions
precedent not otherwise expressly stated herein and that the Corporation shall
not be required to effect such redemption unless each such condition has been
satisfied at the time or times and in the manner specified in such Notice of
Redemption. No defect in the Notice of Redemption or delivery thereof shall
affect the validity of redemption proceedings, except as required by Applicable
Law.
(d)
No Redemption Under Certain Circumstances. Notwithstanding
the provisions of paragraphs (a) or (b) of this Section 10, if any dividends on
VMTP Preferred Shares of a Series (whether or not earned or declared) are in
arrears, no VMTP Preferred Shares of such Series shall be redeemed unless all
Outstanding VMTP Preferred Shares of such Series are simultaneously redeemed,
and the Corporation shall not otherwise purchase or acquire any VMTP Preferred
Shares of such Series; provided, however, that the foregoing
shall not prevent the purchase or acquisition of Outstanding VMTP Preferred
Shares of such Series pursuant to the successful completion of an otherwise
lawful purchase or exchange offer made on the same terms to Holders of all
Outstanding VMTP Preferred Shares of such Series.
(e)
Absence of Funds Available for Redemption. To the extent that
any redemption for which Notice of Redemption has been provided is not made by
reason of the absence of legally available funds therefor in accordance with
the Charter and Applicable Law, such redemption shall be made as soon as
practicable to the extent such funds become available. Failure to redeem VMTP
Preferred Shares shall be deemed to exist at any time after the date specified
for redemption in a Notice of Redemption when the Corporation shall have
failed, for any reason whatsoever, to deposit in trust with the Redemption and
Paying Agent the Redemption Price with respect to any shares for which such
Notice of Redemption has been sent; provided, however, that the
foregoing shall not apply in the case of the Corporation’s failure to deposit
in trust with the Redemption and Paying Agent the Redemption Price with respect
to any shares where (1) the Notice of Redemption relating to such redemption, provided,
that such redemption was subject to one or more conditions precedent and (2) any
such condition precedent shall not have been satisfied at the time or times and
in the manner specified in such Notice of Redemption. Notwithstanding the fact
that the Corporation may not have redeemed VMTP Preferred Shares for which a
Notice of Redemption has been provided, dividends may be declared and paid on
VMTP Preferred Shares and shall include those VMTP Preferred Shares for which a
Notice of Redemption has been provided.
(f)
Redemption and Paying Agent as Trustee of Redemption Payments by Corporation.
All moneys paid to the Redemption and Paying Agent for payment of the
Redemption Price of VMTP Preferred Shares called for redemption shall be held
in trust by the Redemption and Paying Agent for the benefit of Holders of
shares so to be redeemed. The Corporation’s obligation to pay the Redemption
Price of VMTP Preferred Shares called for redemption in accordance with these
Articles Supplementary shall be satisfied upon payment of such Redemption Price
by the Redemption and Paying Agent to the Securities Depository on the relevant
Redemption Date.
(g)
Shares for Which Notice of Redemption Has Been Given Are No Longer
Outstanding. Provided a Notice of Redemption has been provided pursuant
to paragraph (c) of this Section 10, the Corporation shall irrevocably (except
to the extent set forth below in this paragraph (g)) deposit with the
Redemption and Paying Agent, no later than 12:00 noon, New York City time, on a
Business Day not less than ten (10) Business Days preceding the Redemption Date
specified in such notice, Deposit Securities in an aggregate amount equal to
the Redemption Price to be paid on the Redemption Date in respect of any VMTP
Preferred Shares that are subject to such Notice of Redemption. Provided a
Notice of Redemption has been provided pursuant to paragraph (c) of this
Section 10, upon the deposit with the Redemption and Paying Agent of Deposit
Securities in an amount sufficient to redeem the VMTP Preferred Shares that are
the subject of such notice, dividends on such VMTP Preferred Shares shall cease
to accumulate as of the Redemption Date and such VMTP Preferred Shares shall no
longer be deemed to be Outstanding for any purpose, and all rights of the
Holders of the VMTP Preferred Shares so called for redemption shall cease and
terminate, except the right of such Holders to receive the Redemption Price,
but without any interest or other additional amount, except as provided in
paragraph (e)(i) of Section 2 and in Section 3 of these Articles Supplementary.
Upon surrender in accordance with the Notice of Redemption of the certificates
for any VMTP Preferred Shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors shall so require and the Notice of
Redemption shall so state), the Redemption Price shall be paid by the
Redemption and Paying Agent to the Holders of VMTP Preferred Shares subject to
redemption. In the case that fewer than all of the shares represented by any
such certificate are redeemed, a new certificate shall be issued, representing
the unredeemed shares, without cost to the Holder thereof. The Corporation
shall be entitled to receive from the Redemption and Paying Agent, promptly
after the date fixed for redemption, any cash or other Deposit Securities
deposited with the Redemption and Paying Agent in excess of (i) the aggregate
Redemption Price of the VMTP Preferred Shares called for redemption on such
date and (ii) all other amounts to which Holders of VMTP Preferred Shares
called for redemption may be entitled pursuant to these Articles Supplementary.
Any funds so deposited that are unclaimed at the end of 90 days from such
Redemption Date shall, to the extent permitted by law, be repaid to the
Corporation, after which time the Holders of VMTP Preferred Shares so called
for redemption may look only to the Corporation for payment of the Redemption
Price and all other amounts to which they may be entitled pursuant to these
Articles Supplementary. The Corporation shall be entitled to receive, from time
to time after the date fixed for redemption, any interest on the funds so
deposited.
(h)
Compliance With Applicable Law. In effecting any redemption
pursuant to this Section 10, the Corporation shall use its best efforts to
comply with all applicable conditions precedent to effecting such redemption
under any Applicable Law, and shall effect no redemption except in accordance
with Applicable Law.
(i)
Only Whole VMTP Preferred Shares May Be Redeemed. In the case of
any redemption pursuant to this Section 10, only whole VMTP Preferred Shares
shall be redeemed.
(j)
Modification of Redemption Procedures. Notwithstanding the
foregoing provisions of this Section 10, the Corporation may, in its sole
discretion, modify the procedures set forth above with respect to notification
of redemption for the VMTP Preferred Shares, provided that such modification
does not materially and adversely affect the Holders of the VMTP Preferred
Shares or cause the Corporation to violate any law, rule or regulation, or
shall in any way alter the obligations of the Redemption and Paying Agent
without the Redemption and Paying Agent’s prior written consent. Furthermore,
if in the sole discretion of the Board of Directors, after consultation with
counsel, modification of the foregoing redemption provisions (x) are
permissible under the rules and regulations or interpretations of the SEC and
under other Applicable Law and (y) would not cause a material risk as to the
treatment of the VMTP Preferred Shares as equity for U.S. federal income tax
purposes, the Board of Directors, without stockholder approval, by resolution
may modify such redemption procedures.
11.
Liquidation Rights.
(a)
Ranking. The VMTP Preferred Shares shall rank on a parity
with each other, with shares of any other Series of VMTP Preferred Shares and
with shares of any other series of Preferred Shares as to the distribution of
assets upon dissolution, liquidation or winding up of the affairs of the Corporation.
(b)
Distributions Upon Liquidation. Upon the dissolution,
liquidation or winding up of the affairs of the Corporation, whether voluntary
or involuntary, the Holders of VMTP Preferred Shares then Outstanding shall be
entitled to receive and to be paid out of the assets of the Corporation legally
available for distribution to its stockholders under Applicable Law and
otherwise in accordance with Applicable Law, before any payment or distribution
shall be made on the Common Shares or on any other class of shares of the
Corporation ranking junior to the VMTP Preferred Shares upon dissolution,
liquidation or winding up, an amount equal to the Liquidation Preference with
respect to such shares plus an amount equal to all dividends thereon
(whether or not declared) accumulated but unpaid to (but not including) the
date of final distribution in same day funds, together with any payments
required to be made pursuant to Section 3 of these Articles Supplementary in
connection with the liquidation of the Corporation. After the payment to the
Holders of the VMTP Preferred Shares of the full preferential amounts provided
for in this paragraph (b), the Holders of VMTP Preferred Shares as such shall
have no right or claim to any of the remaining assets of the Corporation.
(c)
Pro Rata Distributions. In the event the assets of the
Corporation available for distribution to the Holders of VMTP Preferred Shares
upon any dissolution, liquidation or winding up of the affairs of the
Corporation, whether voluntary or involuntary, shall be insufficient to pay in
full all amounts to which such Holders are entitled pursuant to paragraph (b)
of this Section 11, no such distribution shall be made on account of any shares
of any other class or series of Preferred Shares ranking on a parity with the
VMTP Preferred Shares with respect to the distribution of assets upon such
dissolution, liquidation or winding up unless proportionate distributive
amounts shall be paid on account of the VMTP Preferred Shares, ratably, in
proportion to the full
distributable amounts for which
holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up.
(d)
Rights of Junior Shares. Subject to the rights of the holders
of shares of any series or class or classes of shares ranking on a parity with
the VMTP Preferred Shares with respect to the distribution of assets upon
dissolution, liquidation or winding up of the affairs of the Corporation, after
payment shall have been made in full to the Holders of the VMTP Preferred
Shares as provided in paragraph (b) of this Section 11, but not prior thereto,
any other series or class or classes of shares ranking junior to the VMTP
Preferred Shares with respect to the distribution of assets upon dissolution,
liquidation or winding up of the affairs of the Corporation shall, subject to
the respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the Holders
of the VMTP Preferred Shares shall not be entitled to share therein.
(e)
Certain Events Not Constituting Liquidation. Neither the sale
of all or substantially all the property or business of the Corporation, nor
the merger, consolidation or reorganization of the Corporation into or with any
business or statutory trust, corporation or other entity nor the merger,
consolidation or reorganization of any business or statutory trust, corporation
or other entity into or with the Corporation shall be a dissolution,
liquidation or winding up, whether voluntary or involuntary, for the purposes
of this Section 11.
12.
Transfers.
(a)
Unless otherwise approved in writing by the Corporation, a Beneficial
Owner or Holder may sell, transfer or otherwise dispose of VMTP Preferred
Shares only in whole shares and only to persons it reasonably believes are (i)
QIBs that are either registered closed-end management investment companies, the
shares of which are traded on a national securities exchange (“Closed-End
Funds”), banks, insurance companies, companies that are included in the
S&P 500 Index (and their direct or indirect wholly-owned subsidiaries) or
registered open-end management investment companies or (ii) tender option bond
trusts in which all Beneficial Owners are QIBs that are Closed-End Funds,
banks, insurance companies, companies that are included in the S&P 500
Index (and their direct or indirect wholly-owned subsidiaries) or registered
open-end management investment companies, in each case, pursuant to Rule 144A
of the Securities Act or another available exemption from registration under
the Securities Act, in a manner not involving any public offering within the
meaning of Section 4(2) of the Securities Act. Any transfer in violation of the
foregoing restrictions shall be void ab initio and any transferee of
VMTP Preferred Shares transferred in violation of the foregoing restrictions
shall be deemed to agree to hold all payments it received on any such
improperly transferred VMTP Preferred Shares in trust for the benefit of the
transferor of such VMTP Preferred Shares. The foregoing restrictions on
transfer shall not apply to any VMTP Preferred Shares registered under the
Securities Act pursuant to the Registration Rights Agreement or any subsequent
transfer of such VMTP Preferred Shares thereafter.
(b)
If at any time the Corporation is not furnishing information to the SEC
pursuant to Section 13 or 15(d) of the Exchange Act, in order to preserve the
exemption for resales and transfers under Rule 144A of the Securities Act, the
Corporation shall furnish, or cause to be furnished, to Holders of VMTP
Preferred Shares and prospective purchasers of VMTP Preferred
Shares, upon request, information with respect to the
Corporation satisfying the requirements of subsection (d)(4) of Rule 144A of
the Securities Act.
13.
Miscellaneous.
(a)
No Fractional Shares. No fractional VMTP Preferred Shares
shall be issued.
(b)
Status of VMTP Preferred Shares Redeemed, Exchanged or Otherwise
Acquired by the Corporation. VMTP Preferred Shares which are redeemed,
exchanged or otherwise acquired by the Corporation shall return to the status
of authorized and unissued Preferred Shares without designation as to series. Any
VMTP Preferred Shares which are provisionally delivered by the Corporation to
or for the account of an agent of the Corporation or to or for the account of a
purchaser of the VMTP Preferred Shares, but for which final payment is not
received by the Corporation as agreed, shall return to the status of authorized
and unissued VMTP Preferred Shares.
(c)
Treatment of VMTP Preferred Shares as Equity. The Corporation
shall, and each Holder and Beneficial Owner, by virtue of acquiring VMTP
Preferred Shares, is deemed to have agreed to, treat the VMTP Preferred Shares
as equity in the Corporation for U.S. federal, state, local income and other
tax purposes.
(d)
Board May Resolve Ambiguities. Subject to Section 5 of
these Articles Supplementary and to the extent permitted by Applicable Law, the
Board of Directors may interpret and give effect to the provisions of these
Articles Supplementary in good faith so as to resolve any inconsistency or
ambiguity or to remedy any formal defect. Notwithstanding anything expressed or
implied to the contrary in these Articles Supplementary, but subject to Section
5, the Board of Directors may amend these Articles Supplementary with
respect to any Series of VMTP Preferred Shares prior to the issuance of VMTP
Preferred Shares of such Series.
(e)
Headings Not Determinative. The headings contained in these
Articles Supplementary are for convenience of reference only and shall not
affect the meaning or interpretation of these Articles Supplementary.
(f)
Notices. All notices or communications, unless otherwise
specified in the By-laws of the Corporation or these Articles Supplementary,
shall be sufficiently given if in writing and delivered in person, by
Electronic Means or mailed by first-class mail, postage prepaid.
(g)
Redemption and Paying Agent. The Corporation shall use its
commercially reasonable best efforts to engage at all times a Redemption and
Paying Agent to perform the duties specified in these Articles Supplementary.
(h)
Securities Depository. The Corporation shall maintain
settlement of VMTP Preferred Shares in global book entry form through the
Securities Depository.
(i)
Voluntary Bankruptcy. The Corporation shall not file a
voluntary application for relief under federal bankruptcy law or any similar
application under state law for so long as the Corporation is solvent and does
not reasonably foresee becoming insolvent.
(j)
Applicable Law Restrictions and Requirements. Notwithstanding
anything expressed or implied to the contrary in these Articles Supplementary,
all dividends, redemptions and other payments by the Corporation on or in
respect of the VMTP Preferred Shares shall be paid only out of funds legally
available therefor under Applicable Law and otherwise in accordance with
Applicable Law.
(k)
Information. Without limitation of other provisions of these
Articles Supplementary, the Corporation shall deliver, or cause to be delivered
by the Redemption and Paying Agent, to each Holder:
(i)
as promptly as practicable after the preparation and filing thereof with
the Securities and Exchange Commission, each annual and semi-annual report
prepared with respect to the Corporation, which delivery may be made by means
of the electronic availability of any such document on a public website;
(ii)
notice of any change (including being put on Credit Watch or Watchlist),
suspension or termination in or of the ratings on the VMTP Preferred Shares by
any NRSRO then rating the VMTP Preferred Shares at the request of the
Corporation as promptly as practicable upon the occurrence thereof, to the
extent such information is publicly available;
(iii)
notice of any failure to pay in full when due any dividend required to
be paid by Section 2 of these Articles Supplementary that remains uncured for
more than three Business Days as soon as reasonably practicable, but in no
event later than one Business Day after expiration of the grace period;
(iv)
notice of insufficient deposit to provide for a properly noticed
redemption or liquidation as soon as reasonably practicable, but in no event,
later than two Business Days after discovery of insufficient deposits, to the
extent such information is publicly available;
(v)
notice of any failure to comply with (A) a provision of the Rating
Agency Guidelines when failure continues for more than five consecutive
Business Days or (B) the Minimum Asset Coverage that continues for more than
five consecutive Business Days as soon as reasonably practicable after
discovery of such failure, but in no event, later than one Business Day after
the later of (x) the expiration of the grace period or (y) the earlier of (1)
the discovery of such failure and (2) information confirming such failure
becomes publicly available;
(vi)
notice of any change to any investment adviser or sub-adviser of the
Corporation within two Business Days after a resignation or a notice of removal
has been received from or sent to any investment adviser or sub-adviser;
provided, however, that this clause shall not apply to personnel changes of the
investment adviser or sub-adviser, to the extent such information is publicly
available;
(vii)
notice of any proxy solicitation as soon as reasonably practicable, but
in no event, later than five Business Days after mailing thereof by the
Corporation’s proxy agent;
(viii)
notice one Business Day after the occurrence thereof of ( A) the failure
of the Corporation to pay the amount due on any senior securities or other debt
at the time outstanding, and any period of grace or cure with respect thereto
shall have expired; (B) the failure of the Corporation to pay, or admitting in
writing its inability to pay, its debts generally as they become due; or (C)
the failure of the Corporation to pay accumulated dividends on any additional
preferred stock ranking pari passu with the VMTP Preferred Shares, and any
period of grace or cure with respect thereto shall have expired, in each case,
to the extent such information is publicly available;
(ix)
notice of the occurrence of any Increased Rate Event and any subsequent
cure thereof as soon as reasonably practicable, but in no event, later than
five days after knowledge of senior management of the Corporation thereof;
provided that the Corporation shall not be required to disclose the reason for
such Increased Rate Event unless such information is otherwise publicly
available;
(x)
notice of any action, suit, proceeding or investigation formally
commenced or threatened in writing against the Corporation or the Investment
Adviser in any court or before any governmental authority concerning these
Articles Supplementary, the Charter, the VMTP Preferred Shares or any Related
Document, as promptly as practicable, but in no event, later than ten (10) Business
Days after knowledge of senior management of the Corporation thereof, in each
case, to the extent such information is publicly available;
(xi)
notice on each Friday, provided that if a Friday is not a Business Day,
notice shall be given on the next succeeding Business Day, of the Corporation’s
then current Effective Leverage Ratio, Minimum Asset Coverage and balances in
the Term Redemption Liquidity Account as of the close of business on the
immediately preceding Business Day which delivery may be made by means of
posting on a publicly available section of the Corporation’s website;
(xii)
a report of portfolio holdings of the Corporation as of the end of each
month fifteen (15) days after the end of each month; and
(xiii)
when available, publicly available financial statements of the
Corporation’s most recent fiscal year-end and the auditors’ report with respect
thereto, which shall present fairly, in all material respects, the financial
position of the Corporation at such date and for such period, in conformity
with accounting principles generally accepted in the United States of America.
The Corporation shall require the Investment Adviser to
inform the Corporation as soon as reasonably practicable after the Investment
Adviser’s knowledge or discovery of the occurrence of any of the items set
forth in Sections 13(i)(ix) and 13(i)(x) of these Articles Supplementary.
(l)
Tax Status of the Corporation. The Corporation will use its
best efforts to qualify as a Regulated Investment Company within the meaning of
Section 851(a) of the Code and to qualify the dividends made with respect to
the VMTP Preferred Shares as tax-exempt dividends to the extent designated by
the Corporation.
(m)
Maintenance of Existence. At any time the VMTP Preferred Shares
are outstanding, the Corporation shall use its best efforts to maintain its
existence as a corporation under the laws of State of Maryland, with requisite
power to issue the VMTP Preferred Shares and to perform its obligations under
these Articles Supplementary and each other Related Document to which it is a
party.
(n)
Use of Proceeds. The Corporation shall use the gross proceeds
from the sale of VMTP Preferred Shares to the Purchaser pursuant to the
Purchase Agreement to redeem the Corporation’s Series W-7 (Retired) Variable
Rate Muni Term Preferred Shares as set forth in this Section 13(n). The
Corporation shall give a notice of redemption of the fund’s outstanding Series
W-7 (Retired) Variable Rate Muni Term Preferred Shares for redemption of the outstanding
Series W-7 (Retired) Variable Rate Muni Term Preferred Shares at the earliest
practicable date pursuant to the governing documents of the Corporation’s
outstanding Series W-7 (Retired) Variable Rate Muni Term Preferred Shares ,
which date is not to be greater than sixty (60) days from the Closing Date. If
the foregoing requirements of the prior sentence are not complied with the
Corporation shall redeem, out of funds legally available therefor under
Applicable Law and otherwise in accordance with Applicable Law, the VMTP Preferred
Shares as promptly as possible.
(o)
Compliance with Law. At any time the VMTP Preferred Shares
are outstanding, the Corporation shall use commercially reasonable best efforts
to comply with all laws, ordinances, orders, rules and regulations that are
applicable to it if the failure to comply should reasonably be expected to have
a material adverse effect on the Corporation’s ability to comply with its
obligations under these Articles Supplementary, any of the VMTP Preferred
Shares, and the other Related Documents to which it is a party.
(p)
Maintenance of Approvals; Filings, Etc. At any time the VMTP Preferred
Shares are outstanding, the Corporation shall at all times use commercially
reasonable best efforts to maintain in effect, renew and comply with all the
terms and conditions of all consents, filings, licenses, approvals and
authorizations as are required under any Applicable Law for its performance of
its obligations under these Articles Supplementary and the other Related
Documents to which it is a party, except those as to which the failure to do so
should not reasonably be expected to have a material adverse effect on the
Corporation’s ability to comply with its obligations under these Articles
Supplementary, the VMTP Preferred Shares, and the other Related Documents to
which it is a party.
(q)
1940 Act Registration. At any time the VMTP Preferred Shares
are outstanding, the Corporation shall use best efforts to maintain its
registration as a closed-end management investment company under the 1940 Act.
(r)
Compliance with Eligible Assets Definition. At any time the
VMTP Preferred Shares are outstanding, the Corporation shall maintain policies
and procedures that it believes are reasonably designed to ensure compliance
with Section 6(c) of these Articles Supplementary.
(s)
Access to Information Relating to Compliance with Eligible Assets
Definition. The Corporation shall,
upon request, provide a Beneficial Owner and such of its internal and external
auditors and inspectors as a Beneficial Owner may from time to time designate,
with reasonable access to publicly available information and records of the
Corporation relevant to the
Corporation’s compliance
with Section 6(c) of these Articles Supplementary, but only for the purposes of
internal and external audit.
(t)
Purchase by Affiliates. The Corporation shall not, nor shall
it permit, or cause to be permitted, the Investment Adviser, or any account or
entity over which the Corporation or the Investment Adviser exercises
discretionary authority or control or any of their respective affiliates (other
than by the Corporation, in the case of a redemption permitted by these
Articles Supplementary, the VMTP Preferred Shares which are subject to such
redemption, are to be cancelled by the Corporation upon such redemption), to
purchase in the aggregate more than 25% of the Outstanding VMTP Preferred
Shares without the prior written consent of a Majority of the Holders of the
VMTP Preferred Shares Outstanding, and any such purchases shall be void ab initio.
(u)
Audits. The audits of the Corporation’s financial statements
shall be conducted in accordance with the standards of the Public Company
Accounting Oversight Board (United States).
14.
Global Certificate.
Prior to the commencement of a Voting Period, (i) all of
the VMTP Preferred Shares Outstanding from time to time shall be represented by
one or more global certificates registered in the name of the Securities
Depository or its nominee and countersigned by the Redemption and Paying Agent
and (ii) no registration of transfer of VMTP Preferred Shares shall be made on
the books of the Corporation to any Person other than the Securities Depository
or its nominee.
The foregoing restriction on registration of transfer
shall be conspicuously noted on the face or back of the certificates of VMTP
Preferred Shares in such a manner as to comply with the requirements of Section
2-211 of the Maryland General Corporation Law and Section 8-204 of the Uniform
Commercial Code as in effect in the State of Maryland, or any successor
provisions.
IN WITNESS WHEREOF, The
BlackRock MuniHoldings Fund, Inc. has caused these Articles Supplementary to be
signed as of December 20, 2023, in its name and on its behalf by the person
named below who acknowledges that these Articles Supplementary are the act of
the Corporation and, to the best of such person’s knowledge, information and
belief and under penalties for perjury, all matters and facts contained in
these Articles Supplementary are true in all material respects.
BLACKROCK MUNIHOLDINGS FUND, INC.
By: /s/ Jonathan Diorio
Name: Jonathan Diorio
Title: Vice President
ATTEST:
/s/Janey Ahn
Name: Janey Ahn
Title: Secretary
Appendix
A
ELIGIBLE ASSETS
On the Date of Original Issue and at all
times thereafter that the VMTP Preferred Shares
are Outstanding:
1.
“Eligible Assets” are defined to consist only of assets
that conform to the following requirements as of the time of
investment:
A.
Debt obligations. The following
debt obligations which are not in payment default at the time of investment:
i.
“Municipal securities,” defined as obligations of a State, the
District of Columbia, a U.S. territory, or a political subdivision thereof
and including general obligations, limited obligation bonds, revenue
bonds, and obligations that satisfy the requirements of section 142(b)(1) of
the Internal Revenue Code of 1986
issued by or on behalf of any State, the District of Columbia, any U.S.
territory or any political subdivision thereof, including any municipal
corporate instrumentality of 1 or more States, or any public agency or
authority of any State, the District of Columbia, any U.S. territory or any
political subdivision thereof. The
purchase of any municipal security will be based upon the Investment Adviser’s
assessment of an asset’s relative
value in terms of current yield, price, credit quality, and future prospects; and the Investment Adviser will monitor the
creditworthiness of the Corporation’s portfolio investments and analyze
economic, political and demographic trends affecting the markets for such
assets.
ii.
Debt obligations of the United
States.
iii.
Debt obligations issued, insured, or guaranteed by a department
or an agency of the U.S. Government, if the obligation, insurance, or guarantee
commits the full faith and credit of the United States for the repayment of the
obligation.
iv.
Debt obligations of the Washington Metropolitan Area Transit
Authority guaranteed by the Secretary of Transportation under Section 9 of the
National Capital Transportation Act of 1969.
v.
Debt obligations of the Federal
Home Loan Banks.
vi.
Debt obligations, participations or other instruments of or
issued by the Federal National Mortgage Association or the Government National
Mortgage Association.
vii.
Debt obligations which are or ever have been sold by the Federal
Home Loan Mortgage Corporation pursuant to sections 305
or 306 of the Federal Home Loan Mortgage
Corporation Act.
viii.
Debt obligations of any agency named in 12 U.S.C. § 24(Seventh)
as eligible to issue obligations that a national bank may underwrite, deal in,
purchase and sell for the bank’s own account, including qualified Canadian government obligations.
ix.
Debt obligations of issuers other than those specified in (i)
through (viii) above that are rated in one of
the three highest rating categories by two or more NRSROs, or by one
NRSRO if the security has been rated by only one NRSRO, and which have been
determined by the Corporation, based on the Corporation’s internal credit due
diligence, to be securities where the issuer has adequate capacity to meet
financial commitments under the security for
the projected life of the security such that the lack of default on the
security such that the risk of default on the security is low,
and the full and timely repayment of
principal and interest is expected, and that are “marketable”. For these purposes, an obligation is
“marketable” if:
•
it is registered under the Securities Act;
•
it is offered and sold pursuant to Securities and Exchange Commission Rule 144A; 17 CFR 230.144A; or
•
it can be sold with reasonable promptness at a price that corresponds
reasonably to its fair value.
x.
Certificates or other securities evidencing ownership interests
in a municipal bond trust structure (generally referred to as a tender option
bond structure) that invests in (a) debt obligations of the types described
in (i) above or (b) depository receipts reflecting ownership interests in
accounts holding debt obligations of the types described in (i) above.
An asset shall not fail to qualify as an Eligible
Asset solely by virtue of the fact that:
•
it provides for repayment of principal and interest in any form
including fixed and floating rate, zero interest, capital appreciation,
discount, leases, and payment in kind; or
•
it is for long-term or short-term financing purposes.
B.
Derivatives
i.
Interest rate derivatives; or
ii.
Swaps, credit default swaps, futures, forwards, structured notes,
options and swaptions related to Eligible Assets or on an index related to
Eligible Assets.
C.
Other Assets
i.
(A) Shares of other investment companies registered under Section
8 of the Investment Company Act of
1940 (open- or closed-end funds and ETFs) the assets of which consist entirely
of Eligible Assets based on the Investment Adviser’s assessment of the assets
of each such investment company taking into account the investment company’s
most recent publicly available schedule of investments and publicly disclosed
investment policies.
(B)
Notwithstanding Paragraph C.i.(A) above, the Corporation shall be permitted, subject to Applicable Law, to
invest up to five percent (5%) of the Corporation’s Managed Assets as of the
time of investment in securities issued by a
money-market fund (each, an “Eligible Money-Market Fund”) that is (a)
registered under the Investment Company Act of 1940, and (b) affiliated with
the Investment Adviser; provided that if the Investment Advisor represents that
the Eligible Money-Market Fund meets the requirements of Paragraph C.i.(A)
above, the amount of such Managed Assets invested in any such Eligible
Money-Market Fund meeting the requirements of Paragraph C.i.(A) above shall be
excluded from the foregoing five percent (5%) limitation.
ii.
Cash.
iii.
Repurchase agreements on assets described in A above.
iv.
Taxable fixed-income securities issued by an issuer described in Paragraph
1(A) (a “Permitted Issuer”) that are not in default at the time of acquisition, acquired for the purpose of
influencing control over such Permitted Issuer or creditor group of municipal
bonds of such Permitted Issuer (a) the Corporation already owns and (b) which
have deteriorated or are expected shortly to deteriorate, with the expectation
that such investment should enable the Corporation to better maximize the value
of its existing investment in such issuer, provided that the taxable fixed-income securities of such issuer so acquired do
not constitute more than 0.5% of the Corporation’s Managed Assets as of the
time of investment.
2.
The Corporation has instituted policies and procedures that it believes
are sufficient to ensure that the Corporation comply with the representations,
warranties and covenants contained in this Appendix A to the Articles
Supplementary.
3.
The Corporation will, upon request, provide DNT Asset Trust and its
internal and external auditors and inspectors as DNT Asset Trust may from time
to time designate, with all reasonable assistance and access to information and
records of the Corporation relevant to the Corporation’s compliance with and
performance of the representations, warranties and covenants contained in this
Appendix A to the Articles Supplementary, but only for the purposes of internal
and external audit.
BLACKROCK MUNIHOLDINGS FUND, INC.
ARTICLES
OF AMENDMENT
AMENDING
THE ARTICLES SUPPLEMENTARY ESTABLISHING AND FIXING THE RIGHTS AND PREFERENCES
OF
VARIABLE
RATE MUNI TERM PREFERRED SHARES
This is to certify
that:
First: The charter of BlackRock
MuniHoldings Fund, Inc., a Maryland corporation (the “Corporation”), is amended
by these Articles of Amendment, which amend the Articles Supplementary
Establishing and Fixing the Rights and Preferences of Variable Rate Muni Term
Preferred Shares, dated as of December 15, 2011, as amended to date (the
“Articles Supplementary”).
Second: The charter of
the Corporation is hereby amended by deleting “12:00 noon, New York City time,
on a Business Day not less than ten (10) Business Days preceding” in Section
10(g) of the Articles Supplementary.
Third: These Articles
of Amendment shall be effective as of December 6, 2023.
Fourth: The amendment to
the charter of the Corporation as set forth above in these Articles of
Amendment has been duly advised by the board of directors of the Corporation
and approved by the stockholders of the Corporation as and to the extent
required by law and in accordance with the charter of the Corporation.
[Signature
Page Follows]
IN WITNESS WHEREOF, BlackRock MuniHoldings
Fund, Inc. has caused these Articles of Amendment to be signed as of December 4,
2023, in its name and on its behalf by the person named below, who acknowledges
that these Articles of Amendment are the act of the Corporation and, to the
best of such person’s knowledge, information, and belief and under penalties
for perjury, all matters and facts contained in these Articles of Amendment are
true in all material respects.
BLACKROCK MUNIHOLDINGS FUND, INC.
By:
/s/Jonathan Diorio
Name:
Jonathan Diorio
Title: Vice President
ATTEST:
By:
/s/Janey
Ahn
Name: Janey Ahn
Title: Secretary
BLACKROCK MUNIHOLDINGS FUND, INC.
ARTICLES OF
AMENDMENT
BLACKROCK MUNIHOLDINGS
FUND, INC., a Maryland corporation (the “Corporation”), does hereby certify to
the State Department of Assessments and Taxation of the State of Maryland that:
FIRST: Pursuant
to Section 2-605 of the Maryland General Corporation Law (the “MGCL”), the
charter of the Corporation (the “Charter”) is hereby amended by renaming a
series of the Corporation as set forth below:
Current Name of Series
|
New Name of Series
|
Series W-7 VMTP Preferred Shares
|
Series W-7 (Retired) Preferred
Shares
|
SECOND: The
amendment to the Charter that is effected by these Articles of Amendment has
been approved by a majority of the entire board of directors of the Corporation
and is limited to a change expressly authorized by Section 2-605(a)(2) of the
MGCL to be made without action by the stockholders of the Corporation.
THIRD: These Articles of Amendment shall be
effective as of the 20th day of December, 2023.
FOURTH: As
amended hereby, the Charter shall remain in full force and effect.
[Remainder of Page
Intentionally Left Blank]
IN WITNESS WHEREOF, the Corporation has caused these
Articles of Amendment to be signed in its name and on its behalf on this 20th
day of December, 2023, by the President and Chief Executive Officer of the
Corporation who acknowledges that these Articles of Amendment are the act of
the Corporation and that to the best of his knowledge, information, and belief,
and under penalties for perjury, the matters and facts set forth herein are
true in all material respects.
WITNESS: BLACKROCK
MUNIHOLDINGS FUND, INC.
By: /s/Janey Ahn By:
/s/John M. Perlowski______
Janey Ahn John
M. Perlowski
Secretary President
and Chief Executive Officer
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and the
Board of Trustees/Directors of BlackRock Investment Quality Municipal Trust,
Inc., BlackRock Municipal Income Trust, BlackRock Municipal Income Trust II,
BlackRock MuniHoldings Fund, Inc., BlackRock MuniVest Fund, Inc., BlackRock
MuniVest Fund II, Inc., and BlackRock MuniYield Quality Fund II, Inc.:
In
planning and performing our audits of the financial statements of BlackRock
Investment Quality Municipal Trust, Inc., BlackRock Municipal Income Trust,
BlackRock Municipal Income Trust II, BlackRock MuniHoldings Fund, Inc.,
BlackRock MuniVest Fund, Inc., BlackRock MuniVest Fund II, Inc., and BlackRock
MuniYield Quality Fund II, Inc. (the “Funds”), as of and for the year ended July 31,
2024, in accordance with the standards of the Public Company Accounting
Oversight Board (United States) (PCAOB), we considered the Funds’ internal
control over financial reporting, including controls over safeguarding
securities, as a basis for designing our auditing procedures for the purpose of
expressing our opinion on the financial statements and to comply with the
requirements of Form N-CEN, but not for the purpose of expressing an opinion on
the effectiveness of the Funds’ internal control over financial reporting.
Accordingly, we express no such opinion.
The management of the Funds is responsible for
establishing and maintaining effective internal control over financial
reporting. In fulfilling this responsibility, estimates and judgments by
management are required to assess the expected benefits and related costs of
controls. A company's internal control over financial reporting is a process
designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. A company's internal
control over financial reporting includes those policies and procedures that
(1) pertain to the maintenance of records that, in reasonable detail,
accurately and fairly reflect the transactions and dispositions of the assets
of the company; (2) provide reasonable assurance that transactions are recorded
as necessary to permit preparation of financial statements in accordance with
generally accepted accounting principles, and that receipts and expenditures of
the company are being made only in accordance with authorizations of management
and directors of the company; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition
of a company's assets that could have a material effect on the financial
statements.
Because of its inherent limitations, internal control
over financial reporting may not prevent or detect misstatements. Also,
projections of any evaluation of effectiveness to future periods are subject to
the risk that controls may become inadequate because of changes in conditions
or that the degree of compliance with the policies or procedures may
deteriorate.
A deficiency in internal control over financial
reporting exists when the design or operation of a control does not allow
management or employees, in the normal course of performing their assigned
functions, to prevent or detect misstatements on a timely basis. A material
weakness is a deficiency, or a combination of deficiencies, in internal control
over financial reporting, such that there is a reasonable possibility that a
material misstatement of the company’s annual or interim financial statements
will not be prevented or detected on a timely basis.
Our consideration of the Funds’ internal control over
financial reporting was for the limited purpose described in the first
paragraph and would not necessarily disclose all deficiencies in internal
control that might be material weaknesses under standards established by the
PCAOB. However, we noted no deficiencies in the Funds’ internal control over
financial reporting and its operation, including controls over safeguarding
securities, that we consider to be a material weakness, as defined above, as of
July 31, 2024.
This report is intended solely for the information and
use of management and the Board of Trustees/Directors of the Funds and the
Securities and Exchange Commission and is not intended to be and should not be
used by anyone other than these specified parties.
/s/ Deloitte & Touche
LLP
Boston, Massachusetts
September 20, 2024
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