--------------------------------------------------------------------------------
LEUCADIA NATIONAL CORPORATION
and
JPMORGAN CHASE BANK, as Trustee
---------------------------
INDENTURE
Dated as of June 5, 2003
---------------------------
$200,000,000
7% Senior Notes due 2013
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
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
---------------------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
i
TABLE OF CONTENTS
Page
ARTICLE One
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................................................1
SECTION 1.02. Other Definitions.............................................................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.............................................6
SECTION 1.04. Rules of Construction.........................................................................6
ARTICLE Two
THE SECURITIES
SECTION 2.01. Form and Dating...............................................................................6
SECTION 2.02. Execution and Authentication..................................................................6
SECTION 2.03. Registrar and Paying Agent....................................................................6
SECTION 2.04. Paying Agent To Hold Money in Trust...........................................................6
SECTION 2.05. Securityholder Lists..........................................................................6
SECTION 2.06. Transfer and Exchange.........................................................................6
SECTION 2.07. Replacement Securities........................................................................6
SECTION 2.08. Outstanding Securities........................................................................6
SECTION 2.09. Temporary Securities..........................................................................6
SECTION 2.10. Cancellation..................................................................................6
SECTION 2.11. Defaulted Interest............................................................................6
SECTION 2.12. Book-Entry Provisions for Global Securities...................................................6
SECTION 2.13. Transfer and Exchange of Securities...........................................................6
ARTICLE Three
COVENANTS
SECTION 3.01. Payment of Securities.........................................................................6
SECTION 3.02. SEC Reports...................................................................................6
SECTION 3.03. Compliance Certificate........................................................................6
SECTION 3.04. Maintenance of Office or Agency...............................................................6
SECTION 3.05. Corporate Existence...........................................................................6
SECTION 3.06. Waiver of Stay, Extension or Usury Laws.......................................................6
SECTION 3.07. Transactions with Affiliates..................................................................6
SECTION 3.08. Change of Control.............................................................................6
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..............................................................................6
ii
SECTION 3.10. Limitation on Liens...........................................................................6
SECTION 3.11. Limitation on Sale and Lease-Back Transactions................................................6
SECTION 3.12. Limitation on Funded Debt of Material Subsidiaries............................................6
ARTICLE Four
SUCCESSOR CORPORATION
SECTION 4.01. When Company May Merge, etc...................................................................6
SECTION 4.02. Successor Corporation Substituted.............................................................6
ARTICLE Five
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default.............................................................................6
SECTION 5.02. Acceleration..................................................................................6
SECTION 5.03. Other Remedies................................................................................6
SECTION 5.04. Waiver of Past Defaults.......................................................................6
SECTION 5.05. Control by Majority...........................................................................6
SECTION 5.06. Limitation on Remedies........................................................................6
SECTION 5.07. Rights of Holders To Receive Payment..........................................................6
SECTION 5.08. Collection Suit by Trustee....................................................................6
SECTION 5.09. Trustee May File Proofs of Claim..............................................................6
SECTION 5.10. Priorities....................................................................................6
SECTION 5.11. Undertaking for Costs.........................................................................6
ARTICLE Six
TRUSTEE
SECTION 6.01. Duties of Trustee.............................................................................6
SECTION 6.02. Rights of Trustee.............................................................................6
SECTION 6.03. Individual Rights of Trustee..................................................................6
SECTION 6.04. Trustee's Disclaimer..........................................................................6
SECTION 6.05. Notice of Defaults............................................................................6
SECTION 6.06. Reports by Trustee to Holders.................................................................6
SECTION 6.07. Compensation and Indemnity....................................................................6
SECTION 6.08. Replacement of Trustee........................................................................6
SECTION 6.09. Successor Trustee by Merger, etc..............................................................6
SECTION 6.10. Eligibility; Disqualification.................................................................6
SECTION 6.11. Preferential Collection of Claims Against Company.............................................6
iii
ARTICLE Seven
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's Obligations..........................................................6
SECTION 7.02. Application of Trust Money....................................................................6
SECTION 7.03. Repayment to Company..........................................................................6
SECTION 7.04. Reinstatement.................................................................................6
ARTICLE Eight
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders....................................................................6
SECTION 8.02. With Consent of Holders.......................................................................6
SECTION 8.03. Compliance with Trust Indenture Act...........................................................6
SECTION 8.04. Revocation and Effect of Consents.............................................................6
SECTION 8.05. Notation on or Exchange of Securities.........................................................6
SECTION 8.06. Trustee Protected.............................................................................6
ARTICLE Nine
MISCELLANEOUS
SECTION 9.01. Trust Indenture Act Controls..................................................................6
SECTION 9.02. Notices.......................................................................................6
SECTION 9.03. Communication by Holders with Other Holders...................................................6
SECTION 9.04. Certificate and Opinion as to Conditions Precedent............................................6
SECTION 9.05. Statements Required in Certificate or Opinion.................................................6
SECTION 9.06. When Treasury Securities Disregarded..........................................................6
SECTION 9.07. Rules by Trustee and Agents...................................................................6
SECTION 9.08. Legal Holidays................................................................................6
SECTION 9.09. Governing Law.................................................................................6
SECTION 9.10. No Adverse Interpretation of Other Agreements.................................................6
SECTION 9.11. No Recourse Against Others....................................................................6
SECTION 9.12. Successors....................................................................................6
SECTION 9.13. Duplicate Originals...........................................................................6
SECTION 9.14. Separability..................................................................................6
SIGNATURES...............................................................................................................S-1
iv
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
----------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
v
INDENTURE dated as of June 5, 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).
"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 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.
2
"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 Initial 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 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.
3
"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.
"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.
4
"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 the date of this Indenture 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
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.
5
"Registration Rights Agreement" means the registration
rights agreement dated June 5, 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.
"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.
6
"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.
"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.
Codess.ss.77aaa-77bbbb) as in effect on the date of this Indenture; 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.
"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.
7
"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
---- ----------
"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
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.
8
"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.
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
9
("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 $200,000,000,
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 $200,000,000 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.
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.
10
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 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
11
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 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.
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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 Regulation 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
13
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.
(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.
14
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 Security.
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
15
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:
(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
16
(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).
(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:
17
(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;
(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
18
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 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
19
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 provisions 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;
20
(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
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
21
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.
(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.
22
(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 accordingly, 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.
23
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 requirements 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,
24
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 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.
25
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
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.
26
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
(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
27
(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 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.
28
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 the
date of this Indenture 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 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 the
date of this Indenture existing at the time such Principal Property
is acquired;
29
(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 the
date of this Indenture;
(6) Liens on any Principal Property constituting
unimproved real property constructed or improved by the Company or
any Material Subsidiary after the date of this Indenture 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;
(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,
30
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 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
31
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 the date of
this Indenture, (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 the
date of this Indenture, (B) guarantees which, on the date of this Indenture, 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.
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
32
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.
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;
33
(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:
(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,
34
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.
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.
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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
(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
36
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.
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.
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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, 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.
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(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, personally 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.
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(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.
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.
40
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 xx.xx. 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 disbursements, 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.
41
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.
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.
42
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 TIAss. 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 TIAss. 311(a), excluding any
creditor relationship listed in TIAss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
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.
43
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.
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
44
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:
(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
45
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.
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.
46
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.
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.
47
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
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
48
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 ss. 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 ss. 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:
(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;
49
(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 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.
50
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.
51
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: /s/ Xxxxxx X. Orlando
------------------------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President and Chief Financial Officer
JPMORGAN CHASE BANK, as Trustee
By: /s/ X. Xxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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. 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 June 5, 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 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 June 5, 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 xx.xx. 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 $200,000,000 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 of any
A-1-4
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 June 5, 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. 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 June 5, 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 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 June 5, 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 xx.xx. 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 $200,000,000 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
A-2-4
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-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
B-1
SUCH OFFER, SALE OR 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 BENEIFICIAL 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 June
5, 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 effected pursuant to and in accordance with Rule 903 or
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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 Act and the Transfer complies with the
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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 restrictions
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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:
------------------------------------
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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 June
5, 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 June
5, 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 compliance with the Securities
G-1
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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