EXHIBIT 4.1
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LEUCADIA NATIONAL CORPORATION
and
JPMORGAN CHASE BANK, as Trustee
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INDENTURE
Dated as of August 13, 2003
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$225,000,000
7% Senior Notes due 2013
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1)................................................. 6.10
(a)(2)................................................. 6.10
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(a)(5)................................................. 6.08
(b).................................................... 6.08; 6.10
(c).................................................... N.A.
311(a).................................................... 6.11
(b).................................................... 6.11
(c).................................................... N.A.
312(a).................................................... 2.05
(b).................................................... 9.03
(c).................................................... 9.03
313(a).................................................... 6.06
(b)(1)................................................. N.A.
(b)(2)................................................. 6.06
(c).................................................... 6.06; 9.02
(d).................................................... 6.06
314(a).................................................... 3.02; 3.03; 9.02
(b).................................................... N.A.
(c)(1)................................................. 9.04
(c)(2)................................................. 9.04
(c)(3)................................................. N.A.
(d).................................................... N.A.
(e).................................................... 9.05
(f).................................................... N.A.
315(a).................................................... 6.01(b)
(b).................................................... 6.05; 9.02
(c).................................................... 6.01(a)
(d).................................................... 6.01(c)
(e).................................................... 5.11
316(a)(last sentence)..................................... 9.06
(a)(1)(A).............................................. 5.05
(a)(1)(B).............................................. 5.02; 5.04; 8.02
(a)(2)................................................. N.A.
(b).................................................... 5.07
317(a)(1)................................................. 5.08
(a)(2)................................................. 5.09
(b).................................................... 2.04
318(a).................................................... 9.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.........................................................1
SECTION 1.02. Other Definitions...................................................8
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...................9
SECTION 1.04. Rules of Construction...............................................9
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating....................................................10
SECTION 2.02. Execution and Authentication.......................................10
SECTION 2.03. Registrar and Paying Agent.........................................11
SECTION 2.04. Paying Agent To Hold Money in Trust................................11
SECTION 2.05. Securityholder Lists...............................................11
SECTION 2.06. Transfer and Exchange..............................................12
SECTION 2.07. Replacement Securities.............................................12
SECTION 2.08. Outstanding Securities.............................................12
SECTION 2.09. Temporary Securities...............................................13
SECTION 2.10. Cancellation.......................................................13
SECTION 2.11. Defaulted Interest.................................................13
SECTION 2.12. Book-Entry Provisions for Global Securities........................13
SECTION 2.13. Transfer and Exchange of Securities................................15
ARTICLE THREE
COVENANTS
SECTION 3.01. Payment of Securities..............................................24
SECTION 3.02. SEC Reports........................................................24
SECTION 3.03. Compliance Certificate.............................................25
SECTION 3.04. Maintenance of Office or Agency....................................25
SECTION 3.05. Corporate Existence................................................26
SECTION 3.06. Waiver of Stay, Extension or Usury Laws............................26
SECTION 3.07. Transactions with Affiliates.......................................26
SECTION 3.08. Change of Control..................................................27
SECTION 3.09. Limitation on Incurrence of Additional Indebtedness by the
Company and on the Incurrence of Additional Indebtedness
and Issuance of Preferred Stock by Its Subsidiaries.............29
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Page
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SECTION 3.10. Limitation on Liens................................................29
SECTION 3.11. Limitation on Sale and Lease-Back Transactions.....................31
SECTION 3.12. Limitation on Funded Debt of Material Subsidiaries.................32
ARTICLE FOUR
SUCCESSOR CORPORATION
SECTION 4.01. When Company May Merge, etc........................................33
SECTION 4.02. Successor Corporation Substituted..................................33
ARTICLE FIVE
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default..................................................34
SECTION 5.02. Acceleration.......................................................35
SECTION 5.03. Other Remedies.....................................................36
SECTION 5.04. Waiver of Past Defaults............................................36
SECTION 5.05. Control by Majority................................................36
SECTION 5.06. Limitation on Remedies.............................................36
SECTION 5.07. Rights of Holders To Receive Payment...............................37
SECTION 5.08. Collection Suit by Trustee.........................................37
SECTION 5.09. Trustee May File Proofs of Claim...................................37
SECTION 5.10. Priorities.........................................................38
SECTION 5.11. Undertaking for Costs..............................................38
ARTICLE SIX
TRUSTEE
SECTION 6.01. Duties of Trustee..................................................38
SECTION 6.02. Rights of Trustee..................................................39
SECTION 6.03. Individual Rights of Trustee.......................................40
SECTION 6.04. Trustee's Disclaimer...............................................41
SECTION 6.05. Notice of Defaults.................................................41
SECTION 6.06. Reports by Trustee to Holders......................................41
SECTION 6.07. Compensation and Indemnity.........................................41
SECTION 6.08. Replacement of Trustee.............................................42
SECTION 6.09. Successor Trustee by Merger, etc...................................43
SECTION 6.10. Eligibility; Disqualification......................................43
SECTION 6.11. Preferential Collection of Claims Against Company..................43
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ARTICLE SEVEN
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's Obligations...............................44
SECTION 7.02. Application of Trust Money.........................................45
SECTION 7.03. Repayment to Company...............................................45
SECTION 7.04. Reinstatement......................................................45
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.........................................45
SECTION 8.02. With Consent of Holders............................................46
SECTION 8.03. Compliance with Trust Indenture Act................................47
SECTION 8.04. Revocation and Effect of Consents..................................47
SECTION 8.05. Notation on or Exchange of Securities..............................48
SECTION 8.06. Trustee Protected..................................................48
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. Trust Indenture Act Controls.......................................48
SECTION 9.02. Notices............................................................48
SECTION 9.03. Communication by Holders with Other Holders........................49
SECTION 9.04. Certificate and Opinion as to Conditions Precedent.................49
SECTION 9.05. Statements Required in Certificate or Opinion......................50
SECTION 9.06. When Treasury Securities Disregarded...............................50
SECTION 9.07. Rules by Trustee and Agents........................................50
SECTION 9.08. Legal Holidays.....................................................50
SECTION 9.09. Governing Law......................................................51
SECTION 9.10. No Adverse Interpretation of Other Agreements......................51
SECTION 9.11. No Recourse Against Others.........................................51
SECTION 9.12. Successors.........................................................51
SECTION 9.13. Duplicate Originals................................................51
SECTION 9.14. Separability.......................................................51
SIGNATURES........................................................................S-1
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Page
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EXHIBIT A-1 - FORM OF RESTRICTED SECURITY.......................................A-1-1
EXHIBIT A-2 - FORM OF UNRESTRICTED SECURITY.....................................A-2-1
EXHIBIT B - FORM OF PRIVATE PLACEMENT LEGEND......................................B-1
EXHIBIT C - FORM OF GLOBAL SECURITY LEGEND........................................C-1
EXHIBIT D - FORM OF REGULATION S TEMPORARY GLOBAL SECURITY LEGEND.................D-1
EXHIBIT E - FORM OF CERTIFICATE OF TRANSFER.......................................E-1
EXHIBIT F - FORM OF CERTIFICATE OF EXCHANGE.......................................F-1
EXHIBIT G - FORM OF CERTIFICATE FROM ACQUIRING ACCREDITED INVESTOR................G-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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INDENTURE dated as of August 13, 2003 between Leucadia National
Corporation, a New York corporation (the "Company"), and JPMorgan Chase Bank, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Company's 7% Senior
Notes due August 15, 2013 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accredited Investor" means an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act.
"Acquired Indebtedness" means Indebtedness of a Person either (i)
existing at the time such Person becomes a Subsidiary, (ii) assumed in
connection with the acquisition of assets of such Person or (iii) any
refinancing or replacement by such Person of such Indebtedness; provided that
the aggregate amount of such Indebtedness then outstanding is not increased.
Acquired Indebtedness shall not include (x) any such Indebtedness created in
anticipation of such Person becoming a Subsidiary (other than a refinancing or
replacement of Indebtedness of such Person, which original Indebtedness was not
incurred in anticipation of such Person becoming a Subsidiary) or (y) any
Indebtedness that is recourse to the Company or any Subsidiary or any of their
respective assets, other than to such Person and its Subsidiaries and their
respective assets.
"Affiliate" of the Company means (i) any Related Person and (ii) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Attributable Debt" means, as of any particular time, the present
value, discounted at a rate per annum equal to the interest rate borne by the
Securities, of the rental payments (not including amounts payable by the lessee
for maintenance, property taxes and insurance) due during the remaining term of
any lease (including any period for which such lease has been extended or may,
at the option of the lessor, be extended).
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"Board of Directors" means the Board of Directors of the Company or
any committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"business day" means any day on which the New York Stock Exchange is
open for trading and which is not a Legal Holiday.
"Capitalized Lease Obligations" means the discounted present value of
the rental obligations of any Person under any lease of any property (whether
real, personal or mixed) which, in accordance with GAAP, is required to be
capitalized on the balance sheet of such Person.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of capital
stock, including each class of common stock and preferred stock of such Person.
"Clearstream" means Clearstream Banking, S.A., and its successors.
"Common Shares" means the Common Shares, par value $1.00 per share, of
the Company.
"Company" means Leucadia National Corporation, a New York corporation,
until a successor replaces such Person in accordance with the terms of this
Indenture, and thereafter means such successor.
"Consolidated Debt" means, on any date, the sum of (i) total
Indebtedness of the Company and its Subsidiaries, at such date, determined in
accordance with GAAP on a consolidated basis, and (ii) the aggregate liquidation
preference of all Preferred Stock of Subsidiaries of the Company, at such date,
other than Preferred Stock to the extent held by the Company and its
Subsidiaries; provided that Consolidated Debt shall not include Permitted
Indebtedness.
"Consolidated Net Worth" means, as of any date, the sum of the Capital
Stock and additional paid-in capital plus retained earnings (or minus
accumulated deficit) of the Company as of such date determined on a consolidated
basis in accordance with GAAP.
"Consolidated Tangible Net Worth" with respect to the Company means,
as of any date, the total shareholders' equity of the Company determined in
accordance with GAAP less any and all goodwill and other intangible assets
reflected on the consolidated balance sheet of the Company as of such date.
Deferred policy acquisition costs ("DPAC"), that portion of the value of
insurance in force resulting from an acquisition and equivalent to the amount of
DPAC
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of the acquired entity outstanding immediately prior to such acquisition and
deferred taxes shall not be deemed goodwill or other intangible assets for
purposes of determining Consolidated Tangible Net Worth.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means, with respect to the Global Securities, The
Depository Trust Company or another Person designated as depository by the
Company, which Person must be a clearing agency registered under the Exchange
Act.
"Euroclear" means Euroclear Bank S.A./N.V., and its successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Securities" means the Securities issued in exchange for an
equal principal amount of (1) Initial Securities and (2) Series A Securities,
pursuant to the exchange offer registered under the Securities Act in accordance
with the terms of the Registration Rights Agreement.
"Funded Debt" means Indebtedness which by its terms matures at, or can
be extended or renewed at the option of the obligor to, a date more than twelve
months after the date of the creation of such Indebtedness, including, without
limitation, revolving credit loans.
"GAAP" or "generally accepted accounting principles" means United
States generally accepted accounting principles as in effect on December 31,
1992.
"Global Security Legend" means the legend substantially in the form
set forth in Exhibit C.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" of any Person means (i) any liability of such Person
(a) for borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a Purchase Money Obligation or deferred payment obligation) given in
connection with the acquisition of any property or assets (other than inventory
or similar property acquired in the ordinary course of business), including
securities, (c) for the payment of a Capitalized Lease Obligation of such Person
or (d) with respect to the reimbursement of any letter of credit, banker's
acceptance or similar credit transaction (other than trade letters of credit
issued in the ordinary course of business; provided, that the failure to make
prompt reimbursement of any trade letter of credit shall be deemed to be the
incurrence of Indebtedness); and (ii) any guarantee by such Person of any
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liability of others described in clause (i) above or any obligation of such
Person with respect to any liability of others described in clause (i) above.
Indebtedness shall not include deposits at the Company's banking and lending
Subsidiaries.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Independent Director" means any director of the Company who is
neither (i) an executive officer or an employee of the Company or of any of its
Subsidiaries or Affiliates or (ii) a Related Person.
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
"Initial Securities" means the Securities issued on the date of this
Indenture.
"Investment Grade" is defined as BBB- or higher by S&P or Baa3 or
higher by Moody's or the equivalent of such ratings by Moody's or S&P.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement or other security interest
or encumbrance of any kind (including any agreement to give any security
interest).
"Material Subsidiary" means (i) any Subsidiary of the Company which at
December 31, 1992 was a "significant subsidiary" under Regulation S-X
promulgated by the SEC or any successor to such Subsidiary and (ii) any other
Subsidiary of the Company; provided, that the Company's investments in and
advances to such Subsidiary at the date of determination thereof, without giving
effect to any write downs in such investments or advances taken within the prior
12 months, represent 20% or more of the Company's Consolidated Tangible Net
Worth as of such time; provided, however, that this clause (ii) shall not
include any Subsidiary if, at the time that it became a Subsidiary, the Company
contemplated commencing a voluntary case or proceeding under the Bankruptcy Law
with respect to such Subsidiary.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
its rating business.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Obligations" means any principal, interest, penalties, fees,
indemnities and other obligations and liabilities payable under the
documentation governing the applicable Indebtedness.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer or the Treasurer of the Company.
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"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and the Secretary, Assistant Secretary or Assistant Treasurer of
the Company. One of the Officers giving an Officers' Certificate pursuant to
Section 3.03 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Indebtedness" means (i) any Indebtedness of the Company and
its Subsidiaries outstanding on June 5, 2003 or any refinancing or replacement
thereof; provided, that the aggregate amount of such Indebtedness is not
increased, (ii) Acquired Indebtedness, (iii) Preferred Stock of Subsidiaries
held by the Company or its Subsidiaries (it being understood that the sale of
such Preferred Stock by the Company or such Subsidiary to any Person other than
the Company or a Subsidiary of the Company or such Subsidiary no longer being a
Subsidiary shall be deemed the issuance of Preferred Stock for purposes of
Section 3.09) and (iv) intercompany Indebtedness.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" means certificated Securities in registered
form.
"Preferred Stock" of an entity means the Capital Stock of that entity
which is preferred as to the payment of dividends or the distribution of assets
on any voluntary or involuntary liquidation, over the shares of any other class
or series of Capital Stock of said entity.
"principal" of a debt security means the principal amount of the
security plus the premium, if any, on the security.
"Principal Property" means all property, assets or revenue of the
Company and of each Material Subsidiary now owned or hereafter acquired and all
shares of stock and Indebtedness of any Material Subsidiary now owned or
hereafter acquired.
"Private Placement Legend" means the legend substantially in the form
set forth in Exhibit B.
"Purchase Money Obligations" means Indebtedness evidenced by a note,
debenture, bond or other security or investment (whether or not secured by any
Lien or other security interest) issued to or assumed in favor of a vendor as
all or part of the purchase price of property acquired by the Company or any
Subsidiary; provided, however, that such term shall not include
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any account payable or any other Indebtedness incurred, created or assumed in
the ordinary course of business in connection with the obtaining of material,
products or services.
"Qualified Institutional Buyer" means a "qualified institutional
buyer" as defined in Rule 144A promulgated under the Securities Act.
"Registration Rights Agreement" means the registration rights
agreement dated August 13, 2003 between the Company and the Initial Purchaser
relating to the Securities, as amended or supplemented from time to time.
"Regulation S Global Security" means the Regulation S Temporary Global
Security or the Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means one or more permanent
Regulation S Securities in registered, global form without interest coupons,
issued in a denomination equal to the outstanding principal amount of the
Regulation S Temporary Global Security upon expiration of the Restricted Period.
"Regulation S Temporary Global Security" means one or more temporary
Regulation S Securities in registered, global form without interest coupons,
issued in denominations equal to the outstanding principal amount of Regulation
S Securities initially sold.
"Regulation S Temporary Global Security Legend" means the legend
substantially in the form of Exhibit D.
"Related Person" means any Person who directly or indirectly holds 10%
or more of any class of Capital Stock of the Company as determined pursuant to
Rule 13d-3 under the Exchange Act.
"Restricted Global Security" means a Global Security that is a
Restricted Security.
"Restricted Period" means the 40-day "restricted period" as defined in
Regulation S under the Securities Act.
"Restricted Physical Security" means a Physical Security that is a
Restricted Security.
"Restricted Security" means a Security that is a "restricted security"
as defined in Rule 144(a)(3) promulgated under the Securities Act; provided that
the Trustee shall be entitled to request and conclusively rely upon an Opinion
of Counsel with respect to whether any Security is a Restricted Security.
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"Sale and Lease-Back Transaction" means an arrangement with any Person
providing for the leasing by the Company or any Subsidiary of any property,
title to which property has been or is to be sold or transferred by the Company
or such Subsidiary to such Person; provided, however, that the term "Sale and
Lease-Back Transaction" shall not include any arrangement with the United States
of America, any of its territories or possessions, or any State thereof, or any
department, agency, instrumentality or political subdivision of any thereof.
"S&P" means Standard & Poor's Ratings Group, Inc. or any successor to
its rating business.
"SEC" means the Securities and Exchange Commission.
"Securities" means the securities, as amended or supplemented from
time to time, that are issued and outstanding under this Indenture, treated as a
single class of securities, including the Initial Securities and the Exchange
Securities.
"Series A Securities" means the $200,000,000 aggregate principal
amount of 7% Senior Notes due 2013 issued under an Indenture dated as of June 5,
2003 between the Company and JPMorgan Chase Bank, as Trustee.
"Subsidiary" means a corporation or business trust a majority of whose
Voting Stock is owned by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code 'SS''SS'
77aaa-77bbbb) as in effect on June 5, 2003; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "TIA" means to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Trust Officer" means any officer or assistant officer within the
corporate trust department of the Trustee with direct responsibilities for the
administration of this Indenture.
"United States" means the United States of America.
"Unrestricted Global Security" means a Global Security that is not a
Restricted Security.
"Unrestricted Physical Security" means a Physical Security that is not
a Restricted Security.
"Unrestricted Security" means a Security that is not a Restricted
Security.
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"U.S. Legal Tender" means such coin or currency of the United States
as at the time of payment shall be legal tender for the payment of public and
private debts.
"U.S. Person" means a "U.S. person" as defined in Rule 902(k)
promulgated under the Securities Act.
"Voting Stock" with respect to any Person, means Capital Stock of such
Person having general voting power under ordinary circumstances to elect
directors to the board of directors of such Person, but shall not include any
Capital Stock that has or would have such voting power solely by reason of the
happening of any contingency.
"Wholly-Owned Subsidiary" means any Subsidiary in which the Company or
a Subsidiary owns all of the Capital Stock, other than directors' qualifying
shares.
SECTION 1.02. Other Definitions.
Defined
Term in Section
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"Agent Members".................................................... 2.12
"Bankruptcy Law"................................................... 5.01
"Change of Control"................................................ 3.08
"Change of Control Notice"......................................... 3.08
"Change of Control Payment Date"................................... 3.08
"Custodian"........................................................ 5.01
"Disposition"...................................................... 3.08
"Event of Default"................................................. 5.01
"Global Securities"................................................ 2.12
"Legal Holiday".................................................... 9.08
"Market Price"..................................................... 3.08
"Market Value"..................................................... 3.08
"Paying Agent"..................................................... 2.03
"Recipient"........................................................ 3.08
"Registrar"........................................................ 2.03
"Regulation S Securities".......................................... 2.01
"Rule 144A Global Security"........................................ 2.12
"Rule 144A Securities"............................................. 2.01
"Rule 501 Global Security"......................................... 2.12
"Rule 501 Securities".............................................. 2.01
"Trading Day"...................................................... 3.08
"U.S. Government Obligations"...................................... 7.01
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms, if used in this Indenture, have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine genders;
(6) provisions apply to successive events and transactions; and
(7) "herein", "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the certificate of authentication shall be
substantially in the form of Exhibit A-1 (in the case of the Restricted
Securities) and Exhibit A-2 (in the case of Unrestricted Securities). The
provisions of Exhibit A-1 and Exhibit A-2 are part of this Indenture. The
Securities may have notations, legends and endorsements required by law, stock
exchange rule or usage. Without limiting the generality of the foregoing,
Securities offered and sold in reliance on Rule 144A under the Securities Act
("Rule 144A Securities"), Securities offered and sold to Accredited Investors
("Rule 501 Securities"), Securities offered and sold in offshore transactions in
reliance on Regulation S under the Securities Act ("Regulation S Securities")
and all other Restricted Securities shall bear the Private Placement Legend. The
Company shall approve the form of the Securities and any notation, legend or
endorsement on them. Each Security shall be dated the date of its
authentication.
SECTION 2.02. Execution and Authentication.
One Officer and the Secretary or an Assistant Secretary of the Company
shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee or an authenticating agent shall authenticate Securities
for original issue in the aggregate principal amount of up to $225,000,000, upon
a written order of the Company signed by two Officers or by an Officer and the
Secretary or an Assistant Secretary of the Company. The aggregate principal
amount of Securities outstanding at any time may not exceed $225,000,000 except
as provided in Section 2.07.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so except on original issuance. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
its Affiliates.
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The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. Such agency agreement shall provide for
reasonable compensation for such services. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent and shall furnish the
Trustee with an executed counterpart of any such agency agreement. If the
Company fails to maintain or act as Registrar or Paying Agent, the Trustee shall
act as such and shall be duly compensated therefor.
The Registrar or a co-registrar and a Paying Agent shall be maintained
by the Company in the Borough of Manhattan, The City of New York. The Company
initially designates the Trustee as the Registrar and Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
At or prior to 10:00 A.M., New York City time, on each due date of the
principal and interest on any Security, the Company shall deposit with the
Paying Agent immediately available funds sufficient to pay such principal and
interest becoming due. The Company shall require each Paying Agent other than
the Trustee to hold in trust for the benefit of Securityholders or the Trustee
all money held by such Paying Agent for the payment of principal or interest on
the Securities, and shall notify the Trustee of any Default by the Company in
making any such payment. While any such Default continues, the Trustee may
require the Paying Agent to pay all money held by it to the Trustee. Except as
provided in the immediately preceding sentence, the Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon doing
so, such Paying Agent (other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company acts as Paying Agent, it shall
segregate and hold as separate trust funds all money held by it as Paying Agent.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the name and addresses of
Securityholders and shall otherwise
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comply with TIA 'SS' 312(a). If the Trustee is not the Registrar, the Company
shall furnish or cause to be furnished to the Trustee on or before each
semiannual interest payment date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders, and the
Company shall otherwise comply with TIA 'SS' 312(a).
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.12 and 2.13, when a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of the Registrar
are met. Subject to Sections 2.12 and 2.13, when Securities are presented to the
Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the requirements of the Registrar are met. The
Company shall cooperate with the Registrar in meeting its requirements. To
permit registrations of transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar's request. The Company or the Trustee may charge a
reasonable fee for any registration of transfer or exchange and may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto, but not for any exchange pursuant to
Sections 2.09 or 8.05.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of the Trustee are met. An indemnity bond may be
required by the Trustee or the Company that is sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The Company or
the Trustee may charge for its expenses in replacing a Security.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding.
Subject to Section 9.06, a Security does not cease to be outstanding because the
Company or one of its Subsidiaries or Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If any Paying Agent (other than the Company or a Subsidiary) holds on
a redemption date or maturity date money received by the Paying Agent pursuant
to this Indenture and
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sufficient to pay the principal and interest on Securities payable on that date,
then on and after that date such Securities cease to be outstanding and interest
on them ceases to accrue.
SECTION 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate the temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities
surrendered to it.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment or cancellation and shall dispose of
cancelled Securities in accordance with its customary procedures unless the
Company directs in writing their return to the Company. The Company may not
issue new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest plus any interest payable on the defaulted
interest to the Persons who are Securityholders on a subsequent special record
date. The Company shall fix the record date and payment date. At least 10 days
before the record date, the Company shall mail to each Securityholder a notice
that states the record date, the payment date, and the amount of defaulted
interest to be paid. The Company may pay defaulted interest in any other lawful
manner.
SECTION 2.12. Book-Entry Provisions for Global Securities.
(a) Rule 144A Securities initially shall be represented by one or more
Securities in registered, global form without interest coupons (collectively,
the "Rule 144A Global Security"). Rule 501 Securities initially shall be
represented by one or more Securities in registered, global form without
interest coupons (collectively, the "Rule 501 Global Security"). Regulation S
Securities initially shall be represented by the Regulation S Temporary Global
Security. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Security shall be exchanged for
beneficial interests in Regulation S Permanent Global Security pursuant to the
applicable rules and procedures of the Depositary, Euroclear and Clearstream
that apply to such transfer. Simultaneously with the authentication of
Regula-
-14-
tion S Permanent Global Security, the Trustee shall cancel the Regulation S
Temporary Global Security.
The term "Global Securities" means the Rule 144A Global Security, the
Rule 501 Global Security and the Regulation S Global Security. All Global
Securities shall bear the Global Security Legend. The Global Securities
initially shall (i) be registered in the name of the Depository or the nominee
of the Depository, in each case for credit to an account of an Agent Member,
(ii) be delivered to the Trustee as custodian for the Depository and (iii) bear
the Private Placement Legend. The Regulation S Temporary Global Security shall
bear the Regulation S Temporary Global Security Legend.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository or under the Global
Securities. The Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global
Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities only in accordance with the
applicable rules and procedures of the Depository and the provisions of Section
2.13. In addition, a Global Security shall be exchangeable for Physical
Securities only if (i) the Depository (x) notifies the Company that it is
unwilling or unable to continue as depository for such Global Security or (y)
has ceased to be a clearing agency registered under the Exchange Act, and in
either case the Company fails to appoint a successor depositary within 90 days
of such notice, (ii) the Company, at its option, notifies the Trustee in writing
that it is electing to issue Physical Securities or (iii) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security. In all cases, Physical Securities delivered in exchange for any Global
Security or beneficial interests therein shall be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depository in accordance with its customary procedures.
(c) In connection with the transfer of a Global Security as an
entirety to beneficial owners pursuant to subsection (b) of this Section 2.12,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depository in writing in
exchange for its beneficial interest in such Global Security, an equal aggregate
principal amount of Physical Securities of authorized denominations.
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(d) Any Restricted Physical Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.13 shall, except as
otherwise provided in Section 2.13, bear the Private Placement Legend.
(e) Notwithstanding the foregoing, until the termination of the
Restricted Period, a beneficial interest in the Regulation S Temporary Global
Security may be held only through Euroclear or Clearstream unless delivery is
made in accordance with the applicable provisions of Section 2.13.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 2.13. Transfer and Exchange of Securities.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except as set forth in Section 2.12(b). Global
Securities shall not be exchanged by the Company for Physical Securities except
under the circumstances described in Section 2.12(b). Global Securities may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.09. Beneficial interests in a Global Security may be transferred and exchanged
as provided in Section 2.13(b), 2.13(f) or 2.13(h) below.
(b) Transfer and Exchange of Beneficial Interests in Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depository, in accordance with the
provisions of this Indenture and the applicable rules and procedures of the
Depository. Beneficial interests in Restricted Global Securities shall be
subject to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Beneficial interests in Global Securities
shall be transferred or exchanged only for beneficial interests in Global
Securities. Transfers and exchanges of beneficial interests in the Global
Securities also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Security.
Beneficial interests in any Restricted Global Security may be transferred
to Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Security in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Security may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than the Initial Purchaser). A beneficial interest in an
Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Secu-
-16-
rity. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section
2.13(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities. In connection with all transfers and exchanges of
beneficial interests in any Global Security that is not subject to Section
2.13(b)(i), the transferor of such beneficial interest must deliver to the
Registrar (1) a written order from an Agent Member given to the Depository
in accordance with the applicable rules and procedures of the Depository
directing the Depository to credit or cause to be credited a beneficial
interest in another Global Security in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the applicable rules and procedures of the Depository
containing information regarding the Agent Member account to be credited
with such increase. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and the Securities or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Security or Global Securities pursuant to Section 2.13(f).
(iii) Transfer of Beneficial Interests to Another Restricted Global
Security. A beneficial interest in a Restricted Global Security may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of Section 2.13(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in a Rule 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit E,
including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in a Rule 501 Global Security, then the transferor
must deliver a certificate in the form of Exhibit E, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, if applicable; and
(C) if the transferee will take delivery in the form of a
beneficial interest in a Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit E,
including the certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Security for Beneficial Interests in an Unrestricted Global
Security. A beneficial interest in a Restricted Global Security may be
exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of
Section 2.13(b)(ii) above and:
-17-
(A) such exchange or transfer is effected pursuant to the
exchange offer registered under the Securities Act in accordance with
the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
letter of transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3) a
Person who is an "affiliate" (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the shelf registration
statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
shelf registration statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit
F, including the certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit E, including
the certifications in item (4) thereof,
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the applicable rules and procedures of the
Depositary, so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer or exchange is effected pursuant to this subparagraph
(iv) at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an written order of
the Company in accordance with Section 2.02, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate principal amount
equal to the aggregate principal amount of beneficial interests transferred
or exchanged pursuant to this subparagraph (iv).
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(v) Transfer and Exchange of Beneficial Interests in an Unrestricted
Global Security for Beneficial Interests in a Restricted Global Security.
Beneficial interests in an Unrestricted Global Security cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Security.
(c) Transfer and Exchange of Beneficial Interests in Global Securities
for Physical Securities. A beneficial interest in a Global Security may not be
exchanged for a Physical Security except under the circumstances described in
Section 2.12(b). A beneficial interest in a Global Security may not be
transferred to a Person who takes delivery thereof in the form of a Physical
Security except under the circumstances described in Section 2.12(b).
(d) Transfer and Exchange of Physical Securities for Beneficial
Interests in Global Securities. Physical Securities may be transferred or
exchanged for beneficial interests in Global Securities if the transfer or
exchange complies with either subparagraph (i), (ii) or (iii) below, as
applicable:
(i) Restricted Physical Securities to Beneficial Interests in
Restricted Global Securities. If any Holder of a Restricted Physical
Security proposes to exchange such Restricted Physical Security for a
beneficial interest in a Restricted Global Security or to transfer such
Restricted Physical Security to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Security, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Physical Security proposes
to exchange such Restricted Physical Security for a beneficial
interest in a Restricted Global Security, a certificate from such
Holder in the form of Exhibit F, including the certifications in item
(2)(a) thereof;
(B) if such Restricted Physical Security is being transferred to
a Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit E,
including the certifications in item (1) thereof;
(C) if such Restricted Physical Security is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit E, including the certifications in item (2)
thereof;
(D) if such Restricted Physical Security is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit E, including the
certifications in item (3)(a) thereof;
-19-
(E) if such Restricted Physical Security is being transferred to
an Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit E, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable; or
(F) if such Restricted Physical Security is being transferred to
the Company or a Subsidiary thereof, a certificate to the effect set
forth in Exhibit E, including the certifications in item (3)(b)
thereof,
the Trustee shall cancel the Restricted Physical Security, and increase or
cause to be increased the aggregate principal amount of the appropriate
Restricted Global Security.
(ii) Restricted Physical Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of a Restricted Physical Security
may exchange such Restricted Physical Security for a beneficial interest in
an Unrestricted Global Security or transfer such Restricted Physical
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to the
exchange offer registered under the Securities Act in accordance with
the Registration Rights Agreement and the Holder of the beneficial
interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
letter of transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities or (3) a
Person who is an "affiliate" (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the shelf registration
statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
shelf registration statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Physical Security
proposes to exchange such Restricted Physical Security for a
beneficial interest in an Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit F, including
the certifications in item (1)(b) thereof; or
(2) if the Holder of such Restricted Physical Securities
proposes to transfer such Restricted Physical Security to a
Person who shall
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take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit E, including the certifications in item (4)
thereof,
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the applicable rules and procedures of the
Depositary, so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of this subparagraph (ii), the Trustee
shall cancel the Restricted Physical Security and increase or cause to be
increased the aggregate principal amount of the Unrestricted Global
Security. If any such transfer or exchange is effected pursuant to this
subparagraph (ii) at a time when an Unrestricted Global Security has not
yet been issued, the Company shall issue and, upon receipt of an written
order of the Company in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the aggregate principal amount of Restricted
Physical Securities transferred or exchanged pursuant to this subparagraph
(ii).
(iii) Unrestricted Physical Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of an Unrestricted Physical
Security may exchange such Unrestricted Physical Security for a beneficial
interest in an Unrestricted Global Security or transfer such Unrestricted
Physical Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Physical Security and increase or cause
to be increased the aggregate principal amount of one of the Unrestricted
Global Securities. If any such transfer or exchange is effected pursuant to
this subparagraph (iii) at a time when an Unrestricted Global Security has
not yet been issued, the Company shall issue and, upon receipt of an
written order of the Company in accordance with Section 2.02, the Trustee
shall authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the aggregate principal amount of
Unrestricted Physical Securities transferred or exchanged pursuant to this
subparagraph (iii).
(iv) Unrestricted Physical Securities to Beneficial Interests in
Restricted Global Securities. An Unrestricted Physical Security cannot be
exchanged for, or transferred to a Person who takes delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(e) Transfer and Exchange of Physical Securities for Physical
Securities. Upon request by a Holder of Physical Securities and such Holder's
compliance with the provi-
-21-
sions of this Section 2.13(e), the Registrar shall register the transfer or
exchange of Physical Securities. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Physical Securities duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.13(e).
(i) Restricted Physical Securities to Restricted Physical Securities.
A Restricted Physical Security may be transferred to and registered in the
name of a Person who takes delivery thereof in the form of a Restricted
Physical Security if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit E, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit E, including the certifications in
item (2) thereof;
(C) if the transfer will be made pursuant to an exemption from
the registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set
forth in Exhibit E, including the certifications in item (3)(a)
thereof;
(D) if the transfer will be made to an Accredited Investor in
reliance on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (A) through
(C) above, a certificate to the effect set forth in Exhibit E,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable; and
(E) if such transfer will be made to the Company or a Subsidiary
thereof, a certificate to the effect set forth in Exhibit E, including
the certifications in item (3)(b) thereof.
(ii) Restricted Physical Securities to Unrestricted Physical
Securities. Any Restricted Physical Security may be exchanged by the Holder
thereof for an Unrestricted Physical Security or transferred to a Person
who takes delivery thereof in the form of an Unrestricted Physical Security
if:
(A) such exchange or transfer is effected pursuant to the
exchange offer registered under the Securities Act in accordance with
the Registration Rights
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Agreement and the Holder of the beneficial interest to be transferred,
in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable letter of transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who is an
"affiliate" (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the shelf registration
statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a broker-dealer pursuant to the
shelf registration statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Physical Security
proposes to exchange such Restricted Physical Security for an
Unrestricted Physical Security, a certificate from such Holder in
the form of Exhibit F, including the certifications in item
(1)(c) thereof; or
(2) if the Holder of such Restricted Physical Security
proposes to transfer such Securities to a Person who shall take
delivery thereof in the form of an Unrestricted Physical
Security, a certificate from such Holder in the form of Exhibit
E, including the certifications in item (4) thereof,
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) Unrestricted Physical Securities to Unrestricted Physical
Securities. A Holder of an Unrestricted Physical Security may transfer such
Unrestricted Physical Securities to a Person who takes delivery thereof in
the form of an Unrestricted Physical Security at any time. Upon receipt of
a request to register such a transfer, the Registrar shall register the
Unrestricted Physical Securities pursuant to the instructions from the
Holder thereof.
(iv) Unrestricted Physical Securities to Restricted Physical
Securities. An Unrestricted Physical Security cannot be exchanged for, or
transferred to a Person who takes delivery thereof in the form of, a
Restricted Physical Security.
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(f) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Physical Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.10. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Security
or for Physical Securities, the principal amount of Securities represented by
such Global Security shall be reduced accordingly and an endorsement shall be
made on such Global Security by the Trustee or by the Depository at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(g) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Registrar
to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act or (ii) such Security has been sold pursuant to an effective
registration statement under the Securities Act and the Registrar has received
an Officers' Certificate from the Company to such effect.
(h) Exchange Offer. Upon the occurrence of the exchange offer
registered under the Securities Act in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of a written order of the
Company in accordance with Section 2.02, the Trustee shall authenticate (i) one
or more Unrestricted Global Securities in an aggregate principal amount equal to
the principal amount of the beneficial interests in the Restricted Global
Securities that are (A) tendered for acceptance by Persons that certify in the
applicable letter(s) of transmittal that (1) they are not broker-dealers, (2)
they are not participating in a distribution of the Exchange Securities and (3)
they are not "affiliates" (as defined in Rule 144 under the Securities Act) of
the Company and (B) accepted for exchange in such exchange offer and (ii)
Unrestricted Physical Securities in an aggregate principal amount equal to the
principal amount of the Restricted Physical Securities that are (A) tendered for
acceptance by Persons that certify in the applicable letter(s) of transmittal
that (1) they are not broker-dealers, (2) they are not participating in a
distribution of the Exchange Securities and (3) they are not "affiliates" (as
defined in Rule 144 under the Securities Act) of the Company and (B) accepted
for exchange in such exchange offer. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Securities to be reduced accord-
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ingly, and the Company shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of Physical Securities so
tendered and accepted Physical Securities in the appropriate principal amount.
(i) General. All Global Securities and Physical Securities issued upon
any registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Securities or Physical Securities surrendered upon such registration of transfer
or exchange.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.12 or this Section 2.13. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable notice to the Registrar.
ARTICLE THREE
COVENANTS
SECTION 3.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities. An installment of
principal or interest shall be considered paid on the date it is due if the
Trustee or Paying Agent holds such installment in immediately available funds at
9:00 A.M., New York City time, on the date such installment is due. Principal
and interest on Global Securities shall be payable to the Depository or its
nominee, as the case may be, as the sole registered owner and the sole Holder of
the Securities represented thereby.
The Company shall pay interest on overdue principal at the rate borne
by the Securities; it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
SECTION 3.02. SEC Reports.
(a) The Company shall file with the Trustee within 15 days after it
files them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the
Company is not subject to the requirements of such Section 13 or 15(d) of the
Exchange Act, the Company shall continue to file with the Trustee on the same
timely basis such reports, information and other documents as it would file if
it were subject to the require-
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ments of Section 13 or 15(d) of the Exchange Act. The Company also shall comply
with the other provisions of TIA 'SS' 314(a).
(b) So long as any of the Securities remain outstanding, the Company
shall cause each annual, quarterly and other financial report mailed or
otherwise furnished by it generally to stockholders to be filed with the Trustee
and mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar, in each case at the time of such mailing
or furnishing to stockholders. If the Company is not required to furnish annual
or quarterly reports to its stockholders pursuant to the Exchange Act, the
Company shall cause its financial statements, including any notes thereto and,
with respect to annual reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion and Analysis of
Financial Condition and Results of Operations," comparable to that which would
have been required to appear in annual or quarterly reports filed under Section
13 or 15(d) of the Exchange Act, to be so filed with the Trustee within 120 days
after the end of each of the Company's fiscal years and within 60 days after the
end of each of the first three quarters of each such fiscal year and, after the
date such reports are so required to be filed with the Trustee, to be furnished
to any Holder upon such Holder's request.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Securityholders under this Section 3.02. Delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such reports shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
SECTION 3.03. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company (which as of the date of this Indenture is
December 31) an Officers' Certificate stating whether or not the signers know of
any Default or Event of Default. If they do know of such a Default or Event of
Default, the certificate shall describe the Default or Event of Default and
efforts to remedy the same. The Company shall notify the Trustee within 10 days
following the occurrence thereof of any acceleration which is an Event of
Default within the meaning of Section 5.01(4).
SECTION 3.04. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If
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at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 9.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 3.05. Corporate Existence.
Subject to Article Four, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Material
Subsidiary in accordance with the respective organizational documents of each
Material Subsidiary and the rights (charter and statutory) and material
franchises of the Company and the Material Subsidiaries; provided that the
Company shall not be required to preserve any such right or franchise, or the
corporate existence of any Material Subsidiary, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not, and will not be,
adverse in any material respect to the Holders.
SECTION 3.06. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 3.07. Transactions with Affiliates.
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, enter into any transaction or series of related
transactions with any Affiliate (other than with the Company or a Wholly-Owned
Subsidiary), including, without limitation, any loan, advance or investment or
any purchase, sale, lease or exchange of property or the rendering of any
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service, unless such transaction or series of transactions is in good faith and
at arm's length and on terms which are at least as favorable as those available
in a comparable transaction from an unrelated Person. Any such transaction that
involves in excess of $10,000,000 shall be approved by a majority of the
Independent Directors on the Board of Directors of the Company; or, in the event
that at the time of any such transaction or series of related transactions there
are no Independent Directors serving on the Board of Directors of the Company,
such transaction or series of related transactions shall be approved by a
nationally recognized expert with experience in appraising the terms and
conditions of the type of transaction for which approval is required.
SECTION 3.08. Change of Control.
(a) In the event of any Change of Control, each Holder shall have the
right, at such Holder's option, to require the Company to purchase all or any
portion (in integral multiples of $1,000) of such Holder's Securities on the
date (the "Change of Control Payment Date") which is 20 business days after the
date the Change of Control Notice as defined below is mailed (or such later date
as is required by applicable law) at 101% of the principal amount (excluding
premium) thereof, plus accrued interest to the Change of Control Payment Date;
provided that the Company shall not be obligated to purchase any of such
Securities unless Holders of at least 10% of the Securities outstanding at the
Change of Control Payment Date (other than Securities held by the Company and
its Affiliates) shall have tendered their Securities for repurchase. In
addition, in the event of any Change of Control, the Company will not, and will
not permit any Subsidiaries to, purchase or redeem any Indebtedness ranking
junior to the Securities pursuant to any analogous provisions prior to the
Change of Control Payment Date.
(b) The Company or, at the written request and expense of the Company,
the Trustee shall send, by first-class mail, postage prepaid, to all Holders,
within five business days after the occurrence of each Change of Control, a
notice of the occurrence of such Change of Control (the "Change of Control
Notice") specifying a date by which a Holder must notify the Company of such
Holder's intention to exercise the repurchase right and describing the procedure
that such Holder must follow to exercise such right. The Company is required to
deliver a copy of such notice to the Trustee and to cause a copy of such notice
to be published in a daily newspaper of national circulation.
Each Change of Control Notice shall state:
(1) the Change of Control Payment Date;
(2) the date by which the repurchase right must be exercised;
(3) the price at which the repurchase is to be made, if the repurchase
right is exercised; and
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(4) a description of the procedure which the Holder must follow to
exercise a repurchase right.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right. The Company shall comply with all
applicable Federal and state securities laws in connection with each Change of
Control Notice.
(c) To exercise the repurchase right, the Holder shall deliver, on or
before the fifth calendar day prior to the Change of Control Payment Date,
written notice to the Company (or an agent designated by the Company for such
purpose) of the Holder's exercise of such right, together with (i) the Security
or Securities with respect to which the right is being exercised, duly endorsed
for transfer, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, and (ii) if the Change of Control Payment
Date falls between any record date for the payment of interest on the Securities
and the next succeeding interest payment date, an amount equal to the interest
which the Holder is entitled to receive on such interest payment date.
(d) A "Change of Control" shall be deemed to occur if (i) the Company
has any other Indebtedness outstanding (other than Indebtedness under a bank
credit agreement or similar bank financing) which provides for a Change of
Control (as defined in the instrument governing such Indebtedness) if Xxx X.
Xxxxxxx or Xxxxxx X. Xxxxxxxxx ceases to beneficially own, in the aggregate, a
certain percentage of the outstanding Common Shares, which percentage ownership
requirement is in excess of 10%, and a Change of Control (as defined in the
instrument governing such Indebtedness) occurs under such Indebtedness or (ii)
at any time when the Company does not have any other Indebtedness outstanding of
the type referred to in clause (i), Xxx X. Xxxxxxx and/or Xxxxxx X. Xxxxxxxxx,
individually or in the aggregate, sell, transfer or otherwise dispose of (a
"Disposition"), after the date hereof, Common Shares so that, after giving
effect thereto, the sole beneficial ownership of outstanding Common Shares by
Xx. Xxxxxxx and/or Xx. Xxxxxxxxx would, in the aggregate, fall below 10% of the
then outstanding Common Shares; provided that no Change of Control shall be
deemed to have occurred under clause (ii) if the Securities are rated by both
Xxxxx'x and S&P as Investment Grade both at the time of such Disposition and for
a period of 90 days from the date of such Disposition (it being understood that,
with respect to the foregoing proviso, a Change of Control shall be deemed to
occur on the first date during such 90-day period when the Securities are no
longer rated as Investment Grade by either Xxxxx'x or S&P). The term "Common
Shares" shall include any securities issued as dividends or distributions on the
Common Shares. For purposes hereof, "sole beneficial ownership" of Common Shares
shall be deemed to include (i) all Common Shares received after June 15, 1992
from Xx. Xxxxxxx or Xx. Xxxxxxxxx by any member of their respective immediate
families or by any trust for the benefit of either of them or any member of
their respective immediate families (a "Recipient"), which Common Shares remain
held by a Recipient during the lifetime of Xx. Xxxxxxx or Xx. Xxxxxxxxx (unless
sold, transferred or disposed of by such Recipient during the lifetime of Xx.
Xxxxxxx or Xx. Xxxxxxxxx, as the case may be, in
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which case such Disposition by such Recipient shall constitute a Disposition by
Xx. Xxxxxxx or Xx. Xxxxxxxxx, as the case may be) and (ii) after the death of
Xx. Xxxxxxx and/or Xx. Xxxxxxxxx, all Common Shares owned as of the date of
death by the decedent, and any Recipient of the decedent, regardless of whether
such Recipient continues to own such Common Shares after the date of death. In
determining the number of outstanding Common Shares then held by Messrs. Cumming
and Xxxxxxxxx and the total number of outstanding Common Shares, there shall be
excluded Common Shares issued by the Company after December 31, 1991, or the
conversion into or exchange for, after December 31, 1991, Common Shares or
securities convertible into or exchangeable for Common Shares.
SECTION 3.09. Limitation on Incurrence of Additional Indebtedness
by the Company and on the Incurrence of Additional
Indebtedness and Issuance of Preferred Stock by Its
Subsidiaries.
(a) The Company shall not, and shall not permit any Subsidiary to,
create, incur, assume or guarantee the payment of any Indebtedness, and shall
not permit any of its Subsidiaries to issue any Preferred Stock, if, at the time
of such event and after giving effect thereto on a pro forma basis, the
Company's ratio of Consolidated Debt to Consolidated Tangible Net Worth, as of
the most recent date for which consolidated financial statements are available
and adjusted for the incurrence of all Indebtedness and the issuance of all
Preferred Stock by Subsidiaries (other than Permitted Indebtedness) since that
date, would be greater than 1.75 to 1.
(b) Paragraph (a) of this Section 3.09 shall not preclude the
incurrence of Permitted Indebtedness.
SECTION 3.10. Limitation on Liens.
(a) The Company will not, nor will it permit any Material Subsidiary
to, (i) issue, assume or guarantee any Indebtedness, if such Indebtedness is
secured by a Lien upon, or (ii) directly or indirectly secure any outstanding
Indebtedness of the Company or any Material Subsidiary by a Lien upon, any
Principal Property now owned or hereafter acquired, without in any such case
effectively providing, concurrently with the issuance, assumption or guarantee
of any such Indebtedness, or the granting of security with respect to any such
outstanding Indebtedness, that the Securities (together with, if the Company
shall so determine, any other Indebtedness of or guarantee by the Company or any
Material Subsidiary ranking equally with the Securities then existing or
thereafter created) shall be secured equally and ratably with (or prior to) such
Indebtedness; provided, however, that the foregoing restriction shall not apply
to:
(1) Liens on any Principal Property acquired after June 5, 2003 which
are created or assumed contemporaneously with, or within 90 days after,
such acquisition solely for the purpose of securing Indebtedness
(including, but not limited to, deferred purchase price obligations)
representing, or incurred to finance, refinance or refund, the purchase
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price or acquisition cost of the Principal Property subject thereto;
provided that (a) the principal amount of the Indebtedness secured by such
Lien does not exceed 100% of such purchase price or acquisition cost and
(b) such Lien does not extend to or cover any Principal Property other than
such Principal Property and any improvements thereon or rights appurtenant
thereto acquired in such transaction;
(2) Liens on any Principal Property acquired after June 5, 2003
existing at the time such Principal Property is acquired;
(3) Liens on any Principal Property or shares of stock or Indebtedness
acquired from or through a corporation which is merged with or into the
Company or a Material Subsidiary;
(4) Liens in favor of the Company or any Subsidiary;
(5) Liens on any Principal Property in existence on June 5, 2003;
(6) Liens on any Principal Property constituting unimproved real
property constructed or improved by the Company or any Material Subsidiary
after June 5, 2003 which are created or assumed contemporaneously with, or
within 90 days after, such construction or improvement solely for the
purpose of securing Indebtedness (including, but not limited to, deferred
purchase price obligations) representing, or incurred to finance, refinance
or refund, the cost of such construction or improvement; provided that (a)
the principal amount of the Indebtedness secured by such Lien does not
exceed 100% of such cost and (b) such Lien does not extend to or cover any
Principal Property other than such unimproved real property and any
improvements thereon or rights appurtenant thereto constructed or improved
in such transaction;
(7) Liens in favor of, or required by, any governmental authority;
(8) pledges or deposits securing Indebtedness incurred in connection
with workers' compensation, unemployment insurance and other social
security legislation and deposits securing Indebtedness to insurance
carriers under insurance or self-insurance arrangements or other pledges or
deposits in the ordinary course of the insurance business of a Material
Subsidiary of the Company that is a licensed insurance company, including,
without limitation, those relating to the insurance or reinsurance
operations of such Material Subsidiaries and those relating to the
requirement to create "separate accounts";
(9) Liens securing Indebtedness incurred in connection with taxes not
yet due or which are being contested in good faith by appropriate
proceedings; provided that adequate reserves with respect thereto are
maintained on the books of the Company or its Subsidiaries, as the case may
be, in conformity with GAAP;
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(10) Liens securing any extension, renewal, substitution or
replacement (or successive extensions, renewals, substitutions or
replacements) of Indebtedness of the Company or any Material Subsidiary
which is outstanding on March 31, 1993; provided, however, that the
principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at March 31, 1993; and
(11) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), in whole
or in part, of any Lien referred to in the foregoing clauses (1) through
(10), inclusive; provided, however, that such extension, renewal,
substitution or replacement shall be limited to all or part of the
Principal Property which secured the Lien so extended, renewed, substituted
or replaced (plus improvements on such Principal Property).
(b) Notwithstanding the provisions of subsection (a) of this Section
3.10, the Company or any Material Subsidiary may (without equally and ratably
securing the Securities) issue, assume or guarantee secured Indebtedness which
would otherwise be subject to the foregoing Lien restrictions in an aggregate
amount which, together with all other such secured Indebtedness of the Company
and its Material Subsidiaries (that is, not including secured Indebtedness of
the Company and its Material Subsidiaries permitted in accordance with Section
3.10(a)) and all Attributable Debt in respect of Sale and Lease-Back
Transactions existing at such time (other than Sale and Lease-Back Transactions
permitted in accordance with Section 3.11(a)), does not at the time exceed 15%
of total shareholders' equity in the Company and its consolidated Subsidiaries,
as shown on the audited consolidated balance sheet contained in the latest
annual report to shareholders of the Company.
SECTION 3.11. Limitation on Sale and Lease-Back Transactions.
(a) The Company will not, nor will it permit any Material Subsidiary
to, enter into any Sale and Lease-Back Transaction unless the proceeds of such
sale or transfer are at least equal to the fair value (as determined by the
Board of Directors) of the Principal Property to be leased pursuant to such Sale
and Lease-Back Transaction and either (i) the Company or such Material
Subsidiary would be entitled to incur Indebtedness secured by a Lien on such
Principal Property permitted by Section 3.10, (ii) such Sale and Lease-Back
Transaction is entered into between or among the Company and a Subsidiary or
between or among Subsidiaries, (iii) the lease in such Sale and Lease-Back
Transaction is for a period, including renewal rights, of not in excess of three
years, and the Company or such Material Subsidiary that is a party to such lease
intends that its use of such Principal Property will be discontinued on or
before the expiration of such period, or (iv) the Company covenants that it will
apply, or cause such Material Subsidiary to apply, an amount equal to the fair
value (as determined by the Board of Directors) of the Principal Property so
leased to (1) the retirement (other than any mandatory retirement), within 60
days of the effective date of any such Sale and Lease-Back Transaction, of
Funded Debt of
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the Company or of such Material Subsidiary or (2) the purchase of property that
will constitute Principal Property.
(b) Notwithstanding the provisions of the preceding paragraph (a), the
Company or any Material Subsidiary may enter into any Sale and Lease-Back
Transaction which would otherwise be subject to the foregoing restrictions if
the amount of the Attributable Debt in respect of such Sale and Lease-Back
Transaction, together with all secured Indebtedness of the Company and its
Material Subsidiaries (other than secured Indebtedness of the Company and its
Material Subsidiaries permitted in accordance with Section 3.10(a)) and all
other Attributable Debt in respect of Sale and Lease-Back Transactions existing
at such time (other than Sale and Lease-Back Transactions permitted in
accordance with Section 3.11(a)), does not at the time exceed 15% of total
shareholders' equity in the Company and its consolidated Subsidiaries, as shown
on the audited consolidated balance sheet contained in the latest annual report
to shareholders of the Company.
SECTION 3.12. Limitation on Funded Debt of Material Subsidiaries.
(a) The Company will not permit any Material Subsidiary to (i) create,
incur, assume or suffer to exist any Funded Debt other than (A) Funded Debt
secured by a Lien on Principal Property which is permitted under the provisions
of Section 3.10, (B) Funded Debt owed to the Company or any Subsidiary, (C)
Funded Debt of a corporation which is merged with or into the Company or a
Material Subsidiary, (D) Funded Debt in existence on June 5, 2003, (E) Funded
Debt created in connection with, or with a view to, compliance by a Material
Subsidiary with the requirements of any program adopted by any federal, state or
local governmental authority and applicable to such Material Subsidiary and
providing financial or tax benefits to such Material Subsidiary which are not
available directly to the Company and (F) Funded Debt that is Acquired
Indebtedness; or (ii) guarantee, directly or indirectly, through any arrangement
which is substantially the equivalent of a guarantee, the payment of any Funded
Debt except for (A) guarantees in existence on June 5, 2003, (B) guarantees
which, on June 5, 2003, a Material Subsidiary is obligated to give, and (C)
guarantees of Funded Debt permitted under the provisions of subsection
3.12(a)(i).
(b) Notwithstanding the provisions of subsection (a) of this Section
3.12, any Material Subsidiary may create, incur, assume or guarantee the payment
of Funded Debt in addition to that permitted by subsection (a) of this Section
3.12, and extend, renew, substitute or replace, in whole or in part, such Funded
Debt; provided that at the time of such creation, incurrence, assumption,
guarantee, extension, renewal, substitution or replacement, and after giving
effect thereto, the aggregate principal amount of all Funded Debt of Material
Subsidiaries does not exceed 15% of Consolidated Tangible Net Worth.
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ARTICLE FOUR
SUCCESSOR CORPORATION
SECTION 4.01. When Company May Merge, etc.
The Company shall not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its assets (it
being understood that a sale of less than 90% of the Company's total assets
shall not be deemed a sale of substantially all of the Company's assets), in one
transaction or a series of related transactions, to any Person unless:
(1) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, lease, conveyance or
other disposition shall have been made, is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
(2) the corporation formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, lease,
conveyance or other disposition shall have been made, assumes by
supplemental indenture in a form satisfactory to the Trustee all the
obligations of the Company under the Securities and this Indenture;
(3) immediately before and immediately after such transaction no
Default or Event of Default exists; and
(4) the Company or any corporation formed by or surviving any such
consolidation or merger, or to which such sale, lease, conveyance or other
disposition shall have been made, shall immediately thereafter have a
Consolidated Net Worth (after purchase accounting adjustments) at least
equal to the Consolidated Net Worth of the Company immediately preceding
such transaction.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 4.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 4.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such sale, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation had been named as the
Company herein.
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ARTICLE FIVE
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal (including
premium, if any) of any Security when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities or this Indenture and such default continues for the period
and after the notice specified below;
(4) (A) the Company or any Material Subsidiary defaults in the payment
when due of principal of, interest on, or other amounts payable in respect
of any of its respective Indebtedness (other than the Securities) in the
aggregate principal or like amount of $15,000,000 or more, or (B) the
Company or any Material Subsidiary fails to perform or comply with any of
its other agreements in respect of any of its respective Indebtedness
(other than the Securities) in the aggregate principal or like amount of
$15,000,000 or more and such Indebtedness shall be or shall have been
declared to be due and payable immediately and such acceleration shall not
have been rescinded or annulled;
(5) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors,
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
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(A) is for relief (with respect to the petition commencing such
case) against the Company or any Material Subsidiary in an involuntary
case or proceeding,
(B) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of its respective property,
or
(C) orders the liquidation of the Company or any Material
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) of this Section 5.01 is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the Securities notify the Company and the Trustee of the Default and the Company
does not cure the Default within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default."
SECTION 5.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company specified in clause (5) or (6) of Section 5.01) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Securities then outstanding by notice to
the Company and the Trustee, may declare the principal (including premium, if
any) of, and the accrued interest on, all of the Securities then outstanding due
and payable immediately. Upon such declaration such principal (including
premium, if any) and interest shall be due and immediately payable.
If an Event of Default with respect to the Company specified in clause
(5) or (6) of Section 5.01 occurs, all unpaid principal of, premium, if any, and
accrued interest on the Securities then outstanding shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
Notwithstanding anything to the contrary in the preceding two
paragraphs, the Holders of a majority in principal amount of the Securities then
outstanding by notice to the Trustee may rescind an acceleration and its
consequences if all existing Events of Default have been cured or waived and if
the rescission would not conflict with any judgment or decree. When a Default or
Event of Default is cured or waived, it ceases to exist.
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SECTION 5.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal or interest on the Securities or to enforce the performance
of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.04. Waiver of Past Defaults.
Subject to Sections 5.02, 5.07 and 8.02, the Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default or
Event of Default in payment of principal (including premium, if any) of, or
interest on, any Security.
SECTION 5.05. Control by Majority.
The Holders of a majority in principal amount of the Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, that is unduly prejudicial to the rights of another
Securityholder, as such, or that would involve the Trustee in personal
liability.
SECTION 5.06. Limitation on Remedies.
Except as provided in Section 5.07, a Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) no direction inconsistent with the request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Securities.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over other
Securityholders.
SECTION 5.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security as set forth in this Indenture to receive payment of
principal (including premium) of and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to bring suit for the enforcement of the right to
convert the Security shall not be impaired or affected without the consent of
the Holder.
SECTION 5.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in Section 5.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation and expenses of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 6.07.
SECTION 5.09. Trustee May File Proofs of Claim.
(a) The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company, its creditors or its property.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
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SECTION 5.10. Priorities.
If the Trustee collects any money pursuant to this Article Five, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 5.10.
SECTION 5.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 5.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 5.07, or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities.
ARTICLE SIX
TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth (or incorporated by reference) in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein,
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upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee shall examine such
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph (c) does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 5.05, and the Trustee shall be entitled from time to
time to request such a direction.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall be under no obligation and may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 6.02. Rights of Trustee.
Subject to Section 6.01:
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person.
The Trustee may rely on and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, per-
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sonally or by agent or attorney, to the extent reasonably required by such
inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such certificate or opinion.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty, and the Trustee shall not
be answerable for other than its negligence or willful misconduct.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities, unless either (i) a Trust
Officer shall have actual knowledge of such Default or Event of Default or
(ii) written notice of such Default or Event of Default shall have been
given to the Trustee by the Company or by any Holder of the Securities.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred by it in compliance with such request, order or direction.
(h) Except as otherwise specifically provided herein, (i) all
references to the Trustee shall be deemed to refer to the Trustee in its
capacity as Trustee and in its capacity as Agent, and (ii) every provision
of this Indenture relating to the conduct or affecting the liability or
offering protection, immunity or indemnity to the Trustee shall be deemed
to apply with the same force and effect to the Trustee acting in its
capacity as Agent.
SECTION 6.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 6.10 and 6.11.
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SECTION 6.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
SECTION 6.05. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder pursuant to Section 9.02
a notice of the Default within 90 days after it occurs. Except in the case of a
Default in any payment on any Security, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
SECTION 6.06. Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with May 15, 2004, the
Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA 'SS' 313(a), but only if such report is required in
any year under TIA 'SS' 313(a). The Trustee also shall comply with TIA
'SS''SS' 313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Company shall notify the Trustee in writing if the Securities become
listed on any national securities exchange or of any delisting thereof.
SECTION 6.07. Compensation and Indemnity.
The Company shall pay the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred by it. Such expenses
may include the reasonable compensation and expenses of the Trustee's agents and
counsel.
The Trustee shall not be under any obligation to institute any suit,
or take any remedial action under this Indenture, or to enter any appearance or
in any way defend any suit in which it may be a defendant, or to take any steps
in the execution of the trusts created hereby or thereby or in the enforcement
of any rights and powers under this Indenture, until it shall be indemnified to
its satisfaction against any and all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture, including compensation for services, costs, expenses, outlays,
counsel fees and other disburse-
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ments, and against all liability not due to its negligence or willful
misconduct. The Company shall indemnify the Trustee against any loss or
liability incurred by it in connection with the acceptance and administration of
the trust and its duties hereunder as Trustee, Registrar and/or Paying Agent,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity; however, unless the position of the Company is
prejudiced by such failure, the failure of the Trustee to promptly notify the
Company shall not limit its right to indemnification. The Company shall defend
each such claim and the Trustee shall cooperate in the defense. The Trustee may
retain separate counsel and the Company shall reimburse the Trustee for the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to that of the Holders of the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay principal and interest on particular Securities.
When the Trustee incurs expenses or renders services after the
occurrence of any Event of Default specified in Section 5.01(5) or (6), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The obligations of the Company under this Section 6.07 shall survive
the registration or removal of the Trustee and the termination, satisfaction or
discharge of this Indenture.
SECTION 6.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting as Trustee hereunder.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 6.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee. Any successor Trustee shall comply
with TIA 'SS' 310(a)(5).
SECTION 6.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided such corporation or association shall be otherwise eligible and
qualified under this Article Six.
SECTION 6.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall also comply with TIA
'SS' 310(b).
SECTION 6.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA 'SS' 311(a), excluding any
creditor relationship listed in TIA 'SS' 311(b). A Trustee who has resigned
or been removed shall be subject to TIA 'SS' 311(a) to the extent indicated
therein.
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ARTICLE SEVEN
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under the Securities
and this Indenture if:
(a) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities which have been replaced or paid) have
been delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
(b) (1) the Securities mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to
the Trustee for giving the notice of redemption, and
(2) the Company irrevocably deposits in trust with the Trustee
immediately available funds or U.S. Government Obligations sufficient to
pay principal and interest on the Securities to maturity or redemption, as
the case may be.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
3.01, 3.04, 6.07 and 6.08 shall survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Section 6.07 shall survive.
Upon receipt, in the case of clause (a) or (b) above in this Section
7.01, by the Trustee of an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon request shall acknowledge in writing the discharge of the Company's
obligations under the Securities and this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay principal or
interest on the Securities, the U.S. Government Obligations shall be payable as
to principal or interest on or before such payment date in such amounts as will
provide the necessary money. U.S. Government Obligations shall not be callable
at the issuer's option.
The term "U.S. Government Obligations" means direct obligations of the
United States for the payment of which the full faith and credit of the United
States is pledged.
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SECTION 7.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 7.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the
Securities.
SECTION 7.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed for
two years; provided, however, that the Trustee or such Paying Agent before being
required to make any such repayment may at the expense of the Company cause to
be published once in a newspaper of general circulation in The City of New York
or mail to each such Holder notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be paid to the Company.
SECTION 7.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 7.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 7.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 7.01; provided, however,
that if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.
Subject to Section 5.07, the Company, when authorized by a resolution
of its Board of Directors, may amend or supplement this Indenture or the
Securities without notice to or consent of any Securityholder:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 4.01;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or
(5) to make any change that would provide any additional benefit or
rights to the Securityholders or that does not adversely affect the rights
of any Securityholder.
Notwithstanding the above, the Trustee and the Company may not make
any change that adversely affects the legal rights of any Securityholders
hereunder.
SECTION 8.02. With Consent of Holders.
Subject to Section 5.07, the Company, when authorized by a resolution
of its Board of Directors, may amend or supplement this Indenture or the
Securities with the written consent of the Holders of at least a majority in
principal amount of the Securities then outstanding, and the Holders of a
majority in principal amount of the Securities may waive compliance by the
Company with any provision of this Indenture or the Securities. However, without
the consent of each Securityholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 5.04, may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or change or extend the time for payment of
principal of (including premium, if any) or interest on any Security;
(3) reduce the principal of (including premium, if any) or change the
fixed maturity of any Security;
(4) waive a default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in this Section, Section 5.04 or Section 5.07.
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Notwithstanding the above and Section 5.07, the Holders of a majority
in principal amount of the Securities then outstanding may waive compliance by
the Company with Section 3.08 of this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. Any amendment, waiver or consent shall be deemed effective
upon receipt by the Trustee of the necessary consents and shall not require
execution of any supplemental indenture to be effective.
After an amendment or waiver under this Section 8.02 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment, waiver, consent or supplemental indenture. Except as otherwise
provided in this Section 8.02, the Holders of a majority in aggregate principal
amount of the Securities then outstanding may waive compliance in a particular
instance by the Company with any provisions of this Indenture or the Securities.
SECTION 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
until an amendment or waiver becomes effective, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security. For
such revocation to be effective, the Trustee must receive the notice of
revocation before the date the amendment, supplement or waiver becomes
effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder unless it makes a change described in any of clauses
(1) through (6) of Section 8.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
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SECTION 8.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 8.06. Trustee Protected.
The Trustee shall sign any amendment or supplement or waiver
authorized pursuant to this Article Eight if the amendment or supplement or
waiver does not adversely affect the rights of the Trustee. If it does adversely
affect the rights of the Trustee, the Trustee may but need not sign it. In
signing such amendment or supplement or waiver the Trustee shall be entitled to
receive, and (subject to Article Six) shall be fully protected in relying upon,
in addition to the documents required by Section 9.04, an Opinion of Counsel
stating that such amendment or supplement or waiver is authorized or permitted
by and complies with this Indenture. The Company may not sign an amendment or
supplement until the Board of Directors approves it.
ARTICLE NINE
MISCELLANEOUS
SECTION 9.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 9.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile or mailed by certified or registered mail
(return receipt requested) addressed as follows:
If to the Company:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
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With a copy to:
Xxxx Xxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Trustee:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Institutional Trust Services
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to him by first-class mail at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it. If the
Company mails notices or communications to Securityholders, it shall mail a copy
to the Trustee and each Agent at the same time. All notices or communications
shall be in writing.
SECTION 9.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 9.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
-50-
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 9.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such covenant or condition has been complied with.
SECTION 9.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by any Affiliate shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which a Responsible Officer
of the Trustee knows are so owned shall be so disregarded.
SECTION 9.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for its
functions.
SECTION 9.08. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banks and
trust companies in The City of New York or Chicago are not required by law or
executive order to be
-51-
open. If a payment date is a Legal Holiday at a place of payment, payment may be
made at the place on the next succeeding day that is not a Legal Holiday,
without additional interest.
SECTION 9.09. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of laws.
SECTION 9.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 9.11. No Recourse Against Others.
All liability described in paragraph 14 of the Securities of any
director, officer, employee or stockholder, as such, of the Company is waived
and released.
SECTION 9.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 9.13. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
instrument.
SECTION 9.14. Separability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
LEUCADIA NATIONAL CORPORATION
By:
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By:
--------------------------------
Name:
Title:
S-1
EXHIBIT A-1
[Form of Restricted Security]
[Insert Global Security Legend, if applicable]
[Insert Regulation S Temporary Global Security Legend, if applicable]
[Insert Private Placement Legend]
7% SENIOR NOTE DUE AUGUST 15, 2013
No. $
CUSIP:
LEUCADIA NATIONAL CORPORATION
(a New York corporation)
promises to pay to ________________________ or registered assigns the principal
sum of ____________________ Dollars on August 15, 2013.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated:
LEUCADIA NATIONAL CORPORATION
-----------------------------------
Chief Financial Officer
Attest:
-------------------------------
Secretary
A-1-1
Certificate of Authentication
This is one of the Securities
referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, as Trustee
By:
---------------------------
Authorized Officer
A-1-2
LEUCADIA NATIONAL CORPORATION
7% Senior Note Due August 15, 2013
1. Interest.
Leucadia National Corporation (the "Company") promises to pay interest
on the principal amount of this Security at the rate per annum shown above. The
Company will pay interest semiannually on February 15 and August 15 of each
year, commencing August 15, 2003. Interest on the Securities will accrue from
the most recent date to which interest has been paid (or, if no interest has
been paid, from August 13, 2003). Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 1 or August 1 (or if no interest has been paid, at
the close of business on August 13, 2003) next preceding the interest payment
date even though Securities are cancelled after the record date and on or before
the interest payment date. Holders must surrender Securities to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay interest by
check payable in such money. It may mail an interest check to a Holder's
registered address.
3. Paying Agent and Registrar.
Initially, JPMorgan Chase Bank will act as Paying Agent and Registrar.
The Company may change any Paying Agent, Registrar or co-registrar without prior
notice. The Company or any of its Subsidiaries (as defined in the Indenture) may
act in any such capacity.
4. Indenture.
The Company issued the Securities under an Indenture dated as of
August 13, 2003 (the "Indenture") between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
'SS''SS' 77aaa-77bbbb) as in effect on the date of the Indenture. The Securities
are subject to all such terms and Securityholders are referred to the Indenture
and the TIA for a statement of such terms. The Securities are general unsecured
obligations of the Company limited to $225,000,000 aggregate principal amount,
except as otherwise provided in the Indenture.
A-1-3
5. Change of Control.
In the event of a Change of Control of the Company, each Holder shall
have the right, at such Holder's option, to require the Company to buy all or
any portion of such Holder's Securities, at 101% of the principal amount
thereof, plus accrued interest to the date of purchase.
6. Restrictive Covenants.
The Indenture imposes certain limitations on, among other things, the
ability of the Company to merge or consolidate with any other Person or sell,
lease or otherwise transfer all or substantially all of its properties or
assets, the ability of the Company and the Subsidiaries to incur additional
Indebtedness and to enter into certain transactions with Affiliates, the ability
of the Company and its Material Subsidiaries to create certain liens and enter
into certain sale-leaseback transactions, and the ability of the Material
Subsidiaries of the Company to incur certain Indebtedness, in each case subject
to certain limitations described in the Indenture.
7. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register any transfer or exchange of Securities selected for
redemption. Also, it need not register any transfer or exchange of Securities
for a period of 30 days before a selection of Securities is to be redeemed.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes and neither the Company, the Trustee nor any Agent shall be
affected by notice to the contrary.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, Securityholders entitled to the money must
look to the Company for payment unless an abandoned property law designates
another person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities, and any past default or noncompliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities. Without the consent
A-1-4
of any Securityholder, the Company may amend or supplement the Indenture or the
Securities to cure any ambiguity, defect or inconsistency or to provide for
uncertificated Securities in addition to certificated Securities or to make any
change that does not adversely affect the rights of any Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor corporation
will be released from those obligations.
12. Defaults and Remedies.
The terms of the Securities include the Events of Default as set forth
in Section 5.01 of the Indenture. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company, all outstanding Securities
shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Company must
furnish annual compliance certificates to the Trustee.
13. Trustee Dealings with Company.
JPMorgan Chase Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
15. Authentication.
This Security shall not be valid until the Trustee or an
authenticating agent signs the certificate of authentication on the other side
of this Security.
A-1-5
16. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
17. Registration Rights.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement dated as of August 13, 2005 between the
Company and the Initial Purchaser.
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to: Secretary, Leucadia National Corporation,
000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-1-6
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________
____________________________________________
(Insert assignee's soc. sec. or tax ID no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
_______________________________________________________________________________
_______________________________________________________________________________
Your Signature:
---------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Security)
Date: ____________________
A-1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.08 of the Indenture, check the box:
Section 3.08 [_]
If you want to have only part of this Security purchased by the
Company pursuant to Section 3.08 of the Indenture, state the amount (in integral
multiples of $1,000):
$
Date: ____________________ Signature:
-----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
-----------------------------------------------------------
X-0-0
XXXXXXX X-0
[Form of Unrestricted Security]
[Insert Global Security Legend, if applicable]
7% SENIOR NOTE DUE AUGUST 15, 2013
No. $
CUSIP:
LEUCADIA NATIONAL CORPORATION
(a New York corporation)
promises to pay to ________________________ or registered assigns the principal
sum of ____________________ Dollars on August 15, 2013.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated:
LEUCADIA NATIONAL CORPORATION
-----------------------------
Chief Financial Officer
Attest:
-----------------------------
Secretary
A-2-1
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, as Trustee
By:
----------------------------
Authorized Officer
A-2-2
LEUCADIA NATIONAL CORPORATION
7% Senior Note Due August 15, 2013
1. Interest.
Leucadia National Corporation (the "Company") promises to pay interest
on the principal amount of this Security at the rate per annum shown above. The
Company will pay interest semiannually on February 15 and August 15 of each
year, commencing August 15, 2003. Interest on the Securities will accrue from
the most recent date to which interest has been paid (or, if no interest has
been paid, from August 13, 2003). Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the February 1 or August 1 (or if no interest has been paid, at
the close of business on August 13, 2003) next preceding the interest payment
date even though Securities are cancelled after the record date and on or before
the interest payment date. Holders must surrender Securities to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay interest by
check payable in such money. It may mail an interest check to a Holder's
registered address.
3. Paying Agent and Registrar.
JPMorgan Chase Bank will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without prior
notice. The Company or any of its Subsidiaries (as defined in the Indenture) may
act in any such capacity.
4. Indenture.
The Company issued the Securities under an Indenture dated as of
August 13, 2003 (the "Indenture") between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
'SS''SS' 77aaa-77bbbb) as in effect on the date of the Indenture. The Securities
are subject to all such terms and Securityholders are referred to the Indenture
and the TIA for a statement of such terms. The Securities are general unsecured
obligations of the Company limited to $225,000,000 aggregate principal amount,
except as otherwise provided in the Indenture.
A-2-3
5. Change of Control.
In the event of a Change of Control of the Company, each Holder shall
have the right, at such Holder's option, to require the Company to buy all or
any portion of such Holder's Securities, at 101% of the principal amount
thereof, plus accrued interest to the date of purchase.
6. Restrictive Covenants.
The Indenture imposes certain limitations on, among other things, the
ability of the Company to merge or consolidate with any other Person or sell,
lease or otherwise transfer all or substantially all of its properties or
assets, the ability of the Company and the Subsidiaries to incur additional
Indebtedness and to enter into certain transactions with Affiliates, the ability
of the Company and its Material Subsidiaries to create certain liens and enter
into certain sale-leaseback transactions, and the ability of the Material
Subsidiaries of the Company to incur certain Indebtedness, in each case subject
to certain limitations described in the Indenture.
7. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register any transfer or exchange of Securities selected for
redemption. Also, it need not register any transfer or exchange of Securities
for a period of 30 days before a selection of Securities is to be redeemed.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes and neither the Company, the Trustee nor any Agent shall be
affected by notice to the contrary.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, Securityholders entitled to the money must
look to the Company for payment unless an abandoned property law designates
another person.
10. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities, and any past default or noncompliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities. Without the consent of any
Securityholder, the Company may amend or supplement the Indenture or the
Securities to
A-2-4
cure any ambiguity, defect or inconsistency or to provide for uncertificated
Securities in addition to certificated Securities or to make any change that
does not adversely affect the rights of any Securityholder.
11. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor corporation
will be released from those obligations.
12. Defaults and Remedies.
The terms of the Securities include the Events of Default as set forth
in Section 5.01 of the Indenture. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company, all outstanding Securities
shall become due and payable immediately without further action or notice.
Holders may not enforce the Indenture or the Securities except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Company must
furnish annual compliance certificates to the Trustee.
13. Trustee Dealings with Company.
JPMorgan Chase Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
15. Authentication.
This Security shall not be valid until the Trustee or an
authenticating agent signs the certificate of authentication on the other side
of this Security.
A-2-5
16. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Securityholder upon written request
and without charge a copy of the Indenture. Requests may be made to: Secretary,
Leucadia National Corporation, 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-2-6
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
____________________________________________
____________________________________________
(Insert assignee's soc. sec. or tax ID no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
_______________________________________________________________________________
_______________________________________________________________________________
Your Signature:
---------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Security)
Date: ____________________
A-2-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 3.08 of the Indenture, check the box:
Section 3.08 [_]
If you want to have only part of this Security purchased by the
Company pursuant to Section 3.08 of the Indenture, state the amount (in integral
multiples of $1,000):
$
Date: ____________________ Signature:
-----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
-----------------------------------------------------------
A-2-8
EXHIBIT B
[Form of Private Placement Legend]
Any Restricted Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required) in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE
WHICH IS TWO YEARS (OR SUCH OTHER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER
RULE 144(k) UNDER THE SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED
SECURITIES BY NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) OUTSIDE OF THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (E) TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR
B-1
TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING IN THE INDENTURE GOVERNING THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE
SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION.
B-2
EXHIBIT C
[Form of Global Security Legend]
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required) in
substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
[Form of Regulation S Temporary Global Security Legend]
Any Regulation S Temporary Global Security authenticated and delivered
hereunder shall bear a legend (which would be in addition to any other legends
required) in substantially the following form:
THIS SECURITY IS A REGULATION S TEMPORARY GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE. TRANSFERS OF BENEFICIAL INTERESTS IN THIS REGULATION S TEMPORARY
GLOBAL SECURITY MAY NOT BE MADE TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON (OTHER THAN THE INITIAL PURCHASER). THE CONDITIONS AND
PROCEDURES GOVERNING TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS HEREIN ARE
SET FORTH IN THE INDENTURE.
D-1
EXHIBIT E
[Form of Certificate of Transfer]
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Registrar address block]
Re: 7% Senior Notes due 2013
(CUSIP _____________)
Reference is hereby made to the Indenture, dated as of August 13, 2003
(the "Indenture"), between Leucadia National Corporation, as issuer (the
"Company"), and JPMorgan Chase Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
______________ (the "Transferor") owns and proposes to transfer the
Security[ies] or interest in such Security[ies] specified in Annex A hereto, in
the principal amount of ___________ in such Security[ies] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in a Rule
144A Global Security or a Physical Security pursuant to Rule 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Physical Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Physical Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Physical Security will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Rule 144A Global Security and/or
the Physical Security and in the Indenture and the Securities Act.
2. [_] Check if Transferee will take delivery of a beneficial interest in a
Regulation S Global Security or a Physical Security pursuant to Regulation S.
The Transfer is being ef-
E-1
fected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than the Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Physical Security will be subject to the restrictions on
Transfer enumerated in the Private Placement Legend printed on the Regulation S
Global Security and/or the Physical Security and in the Indenture and the
Securities Act.
3. [_] Check and complete if Transferee will take delivery of a beneficial
interest in the Global Security or a Physical Security pursuant to any provision
of the Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Securities and Restricted Physical
Securities and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a Subsidiary
thereof;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Accredited Investor and
pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities
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Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Security or Restricted Physical
Securities and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee
in the form of Exhibit G to the Indenture and (2) if such Transfer is in
respect of a principal amount of Securities at the time of transfer of less
than $250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Physical Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Global Security
and/or the Physical Securities and in the Indenture and the Securities Act.
4. [_] Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Security or an Unrestricted Physical Security.
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Physical
Security will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities, on
Restricted Physical Securities and in the Indenture.
(b) [_] Check if Transfer is pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Physical Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Physical Securities and in the
Indenture.
(c) [_] Check if Transfer is pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Physical Security will not be subject to the
E-3
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities or Restricted Physical Securities and in the
Indenture.
(d) [_] Check if Transfer is pursuant to an Effective Registration
Statement. (i) The Transfer is being effected pursuant to and in compliance with
an effective registration statement under the Securities Act and any applicable
blue sky securities laws of any State of the United States and in compliance
with the prospectus delivery requirements of the Securities Act and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Physical Security will not be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities or Restricted Physical
Securities and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated: ________________
E-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) [_] a beneficial interest in a:
(i) [_] Rule 144A Global Security (CUSIP ______), or
(ii) [_] Rule 501 Global Security (CUSIP _______); or
(iii) [_] Regulation S Global Security (CUSIP ______), or
(b) [_] a Restricted Physical Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] Rule 144A Global Security (CUSIP _______), or
(ii) [_] Rule 501 Global Security (CUSIP _______); or
(iii) [_] Regulation S Global Security (CUSIP ______), or
(iv) [_] Unrestricted Global Security (CUSIP ______), or
(b) [_] a Restricted Physical Security; or
(c) [_] an Unrestricted Physical Security,
in accordance with the terms of the Indenture.
E-5
EXHIBIT F
[Form of Certificate of Exchange]
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Registrar address block]
Re: 7% Senior Notes due 2013
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of August 13, 2003
(the "Indenture"), between Leucadia National Corporation, as issuer (the
"Company"), and JPMorgan Chase Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
____________ (the "Owner") owns and proposes to exchange the
Security[ies] or interest in such Security[ies] specified herein, in the
principal amount of ____________ in such Security[ies] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Physical Securities or Beneficial Interests in a
Restricted Global Security for Unrestricted Physical Securities or Beneficial
Interests in an Unrestricted Global Security
(a) [_] Check if Exchange is from beneficial interest in a Restricted
Global Security to beneficial interest in an Unrestricted Global Security. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Security for a beneficial interest in an Unrestricted Global Security in
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Securities and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Security is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(b) [_] Check if Exchange is from Restricted Physical Security to
beneficial interest in an Unrestricted Global Security. In connection with the
Owner's Exchange of a Restricted Physical Security for a beneficial interest in
an Unrestricted Global Security, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own
F-1
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Physical Securities and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) [_] Check if Exchange is from Restricted Physical Security to
Unrestricted Physical Security. In connection with the Owner's Exchange of a
Restricted Physical Security for an Unrestricted Physical Security, the Owner
hereby certifies (i) the Unrestricted Physical Security is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted Physical
Securities and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Physical Security is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Physical Securities for Restricted Physical Securities
or Beneficial Interests in Restricted Global Securities.
(a) [_] Check if Exchange is from Restricted Physical Security to
beneficial interest in a Restricted Global Security. In connection with the
Exchange of the Owner's Restricted Physical Security for a beneficial interest
in the [CHECK ONE] __ Rule 144A Global Security, ___ Rule 501 Global Security,
__ Regulation S Global Security with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Securities
and pursuant to and in accordance with the Securities Act, and in compliance
with any applicable blue sky securities laws of any state of the United States.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.
F-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
________________________________________
[Insert Name of Owner]
By:
------------------------------------
Name:
Title:
Dated: ________________
F-3
EXHIBIT G
[Form of Certificate from Acquiring Accredited Investor]
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Registrar address block]
Re: 7% Senior Notes due 2013
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of August 13, 2003
(the "Indenture"), between Leucadia National Corporation, as issuer (the
"Company"), and JPMorgan Chase Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Security, or
(b) [_] a Physical Security,
we confirm that:
1. We understand that any subsequent transfer of the Securities or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Securities or any
interest therein, we will do so only (A) to the Company or any Subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (c) to an "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is
in respect of a principal amount of Securities, at the time of transfer, of less
than $250,000, an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such transfer is in com-
G-1
pliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Physical Security or beneficial interest
in a Global Security from us in a transaction meeting the requirements of
clauses (A) through (E) of this paragraph a notice advising such purchaser that
resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Securities or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Securities purchased
by us will bear a legend to the foregoing effect.
4. We are an "accredited investor" (as defined in Rule 501(a) of
Regulation D under the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment.
5. We are acquiring the Securities or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an "accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
________________________________________
[Insert Name of Accredited Investor]
By:
------------------------------------
Name:
Title:
Dated: ________________
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