Delaware
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95-4719745
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging Growth Company
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Exact Name of Additional
Registrant*
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Jurisdiction of
Formation
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I.R.S. Employer Identification
Number
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Jefferies Group Capital Finance Inc.
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Delaware
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81-1265442
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*
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The address and telephone number of the Additional Registrant’s principal executive officer and its agent for service are the same as set forth for Jefferies Group LLC on the cover of this Registration Statement.
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the initial offering of debt securities and warrants issuable by Jefferies Group LLC, together with Jefferies Group Capital Finance Inc., as co-issuers;
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the offering of such securities by the holders thereof; and
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market-making or other transactions as principal by one or more affiliates of the registrants from time to time in (1) the securities described above after they are initially offered and sold, and (2) the securities of one or more of the same classes that were initially registered under registration statements previously filed by Jefferies Group LLC (formerly Jefferies Group, Inc.) and/or Jefferies Group Capital Finance Inc. and that were initially offered and sold prior to the date of the prospectus contained herein (but are now registered hereunder with respect to ongoing market-making or other transactions as principal by such affiliates).
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Page
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debt securities and
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warrants.
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Jefferies Group’s Annual Report on Form 10-K for the year ended November 30, 2021, filed on January 28, 2022; and
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solely with regard to the securities covered by this prospectus that were initially offered and sold under previously filed registration statements of either or both Issuers and that from time to time may be reoffered and resold in market-making transactions under this prospectus, the information in the prospectus supplements and pricing supplements relating to those securities that were previously filed by an Issuer in connection with their initial offer and sale (except to the extent that any such information has been modified or superseded by other information included or incorporated by reference in this prospectus).
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securities of one or more issuers;
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currencies;
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commodities;
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indices;
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any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event or circumstance; and/or
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baskets of the items described above.
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the title;
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whether the debt is senior or subordinated;
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the total principal amount offered;
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the percentage of the principal amount at which the debt securities will be sold and, if applicable, the method of determining the price;
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the maturity date or dates;
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whether the debt securities are fixed rate debt securities or floating rate debt securities;
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if the debt securities are fixed rate debt securities, the yearly rate at which the debt security will bear interest, if any, and the interest payment dates;
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if the debt security is an original issue discount debt security, the yield to maturity;
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if the debt securities are floating rate debt securities, the interest rate basis; any applicable index currency or maturity, spread or spread multiplier or initial, maximum or minimum rate; the interest reset, determination, calculation and payment dates; and the day count used to calculate interest payments for any period; the business day convention; and the calculation agent;
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the date or dates from which any interest will accrue, or how such date or dates will be determined, and the interest payment dates and any related record dates;
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if other than in U.S. dollars, the currency or currency unit in which payment will be made;
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any provisions for the payment of additional amounts for taxes;
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the denominations in which the currency or currency unit of the securities will be issuable if other than denominations of $1,000 and integral multiples thereof;
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the terms and conditions on which the debt securities may be redeemed at our option;
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any of our obligations to redeem, purchase or repay the debt securities at the option of a holder upon the happening of any event and the terms and conditions of redemption, purchase or repayment;
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the names and duties of any co-trustees, depositaries, authenticating agents, calculation agents, paying agents, transfer agents or registrars for the debt securities;
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any material provisions of the applicable indenture described in this prospectus that do not apply to the debt securities; and
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any other specific terms of the debt securities.
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either (1) such Issuer is the continuing corporation, or (2) the successor corporation, if other than such Issuer, is a domestic corporation, partnership or trust and expressly assumes by supplemental indenture the obligations evidenced by the securities issued pursuant to the indenture;
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immediately after the transaction, there would not be any default in the performance of any covenant or condition of the indentures;
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if as a result of such consolidation or merger or conversion or such conveyance, an Issuer’s assets or properties would become subject to a pledge, lien or other similar encumbrance which would not be permitted under the indentures, such Issuer or its successor takes steps as necessary to effectively secure the securities equally and ratably with (or prior to) all indebtedness secured thereby; and
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we have delivered an officers’ certificate and an opinion of counsel to the trustee as required under the indentures (Section 8.01).
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to evidence the succession of another person to us and the assumption by any such successor of the covenants of us herein and in the securities or to add a Co-Issuer of any series of Securities;
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to add to our covenants for the benefit of the holders of all or any securities of any series (and if such covenants are to be for the benefit of less than all securities of any series, stating that such covenants are expressly being included solely for the benefit of such securities within such series) or to surrender
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to add any additional events of default for the benefit of the holders of all or any securities of any series (and if such additional events of default are to be for the benefit of less than all securities of any series, stating that such additional events of default are expressly being included solely for the benefit of such securities within such series);
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to add to or change any of the provisions of the indentures to such extent as shall be necessary to permit or facilitate the issuance of securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of securities in uncertificated form;
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to add to, change or eliminate any of the provisions of the indentures in respect of all or any securities of any series (and if such addition, change or elimination is to apply with respect to less than all securities of any series, stating that it is expressly being made to apply solely with respect to such securities within such series), provided that any such addition, change or elimination (A) shall neither (i) apply to any security issued prior to the execution of such indentures and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such security with respect to such provision or (B) shall become effective only when there is no such security outstanding;
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to secure the securities pursuant to the requirements of Section 8.01(3), Section 10.05 or otherwise;
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to establish the form or terms of all or any securities of any series as permitted by Sections 2.01 and 3.01;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the securities of one or more series and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11;
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to add to or change any of the provisions of the indenture with respect to any securities that by their terms may be converted into securities or other property other than securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such securities;
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to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under the indentures, provided that such action shall not adversely affect the interests of the holders of any securities in any material respect;
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to comply with any requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”) or the requirements of the Commission in connection with maintaining the qualification of the Indentures under the Trust Indenture Act; or
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to make any change that does not adversely affect the rights of the Holders of Securities of each series affected by such change in any material respect.
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extend the fixed maturity of any such securities;
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reduce the rate or change the time of payment of interest on such securities;
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reduce the principal amount of such securities or the premium, if any, on such securities;
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change any obligation of ours to pay additional amounts;
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reduce the amount of the principal payable on acceleration of any securities issued originally at a discount;
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adversely affect the right of repayment or repurchase at the option of the holder;
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reduce or postpone any sinking fund or similar provision;
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change the currency or currency unit in which any such securities are payable or the right of selection thereof;
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impair the right to sue for the enforcement of any such payment on or after the maturity of such securities;
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reduce the percentage of securities referred to above whose holders need to consent to the modification or a waiver without the consent of such holders; or
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change any obligation of ours to maintain an office or agency (Section 9.02).
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our failure to pay required interest on any debt security of such series for 30 days;
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our failure to pay principal or premium, if any, on any debt security of such series when due;
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our failure to make any required scheduled installment payment on debt securities of such series;
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our failure to perform for 90 days after notice any other covenant in the relevant indenture other than a covenant included in the relevant indenture solely for the benefit of a series of debt securities other than such series; and
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certain events of bankruptcy or insolvency, whether voluntary or not (Section 5.01).
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We must deposit in trust for the benefit of all holders of those debt securities money or a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on those debt securities on their various due dates;
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There must be a change in current United States federal tax law or an Internal Revenue Service ruling that lets us make the above deposit without causing the holders to be taxed on those debt securities any differently than if we did not make the deposit and just repaid those debt securities ourselves. Under current federal tax law, the deposit and our legal release from a debt security would be treated as though we took back the debt security and returned an appropriate share of the cash and notes or bonds deposited in trust. In that event, there may be a recognized gain or loss on the debt security;
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We must deliver to the trustee a legal opinion of our counsel confirming the tax law change described above; and
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In the case of the subordinated debt securities, the following requirements must also be met:
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No event or condition may exist that would prevent us from making payments of principal, premium or interest on those subordinated debt securities on the date of the deposit referred to above or during the 90 days after that date; and
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We must deliver to the trustee an opinion of counsel to the effect that (a) the trust funds will not be subject to any rights of holders of senior indebtedness and (b) after the 90-day period referred to above, the trust funds will not be subject to any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, except that if a court were to rule under any of those laws in any case or proceeding that the trust funds remained our property, then the relevant trustee and the holders of the subordinated debt securities would be entitled to some enumerated rights as secured creditors in the trust funds.
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deposit in trust for the benefit of the holders of those debt securities money or a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on those debt securities on their various due dates; and
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deliver to the trustee a legal opinion of our counsel confirming that under current United States federal income tax law we may make the above deposit without causing the holders to be taxed on those debt securities any differently than if we did not make the deposit and just repaid those debt securities ourselves.
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any tax, assessment or other governmental charge that would not have been imposed but for the existence of any present or former connection between such holder or beneficial owner of such debt security (or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such holder or beneficial owner, if such holder or beneficial owner is an estate, trust, partnership or corporation) and the United States, including, without limitation, such holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor), being or having been a citizen or resident or treated as a resident of the United States or being or having been engaged in trade or business or present in the United States or having or having had a permanent establishment in the United States;
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any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of the debt security for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
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any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
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any tax, assessment or other governmental charge imposed by reason of such holder’s or beneficial owner’s past or present status as a passive foreign investment company, a controlled foreign corporation, a personal holding company or foreign personal holding company with respect to the United States, or as a corporation which accumulates earnings to avoid United States federal income tax;
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any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of, or interest on, such debt security;
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any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of, or interest on, any debt security if such payment can be made without withholding by any other paying agent;
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any tax, assessment or other governmental charge that is imposed by reason of a holder’s or beneficial owner’s present or former status as (i) the actual or constructive owner of 10% or more of the total combined voting power of Jefferies Financial Group Inc. stock, as determined for purposes of Section 871(h)(3)(B) of the Internal Revenue Code of 1986, as amended (the “Code”), (or any successor provision) or (ii) a controlled foreign corporation that is related to us, as determined for purposes of Section 881(c)(3)(C) of the Code (or any successor provision);
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any tax, assessment or other governmental charge (i) in the nature of a backup withholding tax, (ii) as a result of the failure to comply with information reporting requirements or (iii) imposed or required pursuant to Sections 1471 through 1474 of the Code and the U.S. Treasury Regulations promulgated thereunder (commonly referred to as “FATCA”), or imposed under any substantially similar successor legislation, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection therewith;
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any tax, assessment or other governmental charge imposed solely because the holder or the beneficial owner of such debt security (i) is a bank purchasing such debt security in the ordinary course of its lending business or (ii) is a bank that is neither (a) buying such debt security for investment purposes nor (b) buying such debt security for resale to a third party that either is not a bank or holding such debt security for investment purposes only;
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any tax, assessment or other governmental charge imposed in whole or in part by reason of such holder’s or beneficial owner’s past or present status as a corporation that accumulates earnings to avoid U.S. federal income tax or as a private foundation, a foreign private foundation or other tax-exempt organization; or
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any combinations of items identified in the bullet points above.
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we have or will become obligated to pay additional amounts as described under the heading “Payment of Additional Amounts”; or
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there is a substantial possibility that we will be required to pay such additional amounts.
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the securities or other property that underlie the warrants;
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency unit with which the warrants may be purchased and in which any payments due to or from the holder upon exercise must be made;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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whether the exercise price may be paid in cash, by the exchange of warrants or other securities or both, and the method of exercising the warrants;
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whether and under what circumstances we may cancel the warrants prior to their expiration date, in which case the holders will be entitled to receive only the applicable cancellation amount, which may be either a fixed amount or an amount that varies during the term of the warrants in accordance with a schedule or formula;
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whether the warrants will be issued in global or non-global form;
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the identities of the warrant agent, any depositaries and any paying, transfer, calculation or other agents for the warrants;
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any securities exchange or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed;
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whether the warrants are to be sold separately or with other securities, and if the warrants are to be sold with the securities of another company or other companies, certain information regarding such company or companies; and
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any other terms of the warrants.
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whether the universal warrants are put warrants or call warrants, including in either case warrants that may be settled by means of net cash settlement or cashless exercise, or any other type of warrants;
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the money payable upon exercise of each universal warrant;
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the price at which and the currency with which the exercise of the universal warrant may be effected, or the method of determining that price;
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whether the exercise price may be paid in cash, by the exchange of any universal warrants or other securities or both, and the method of exercising the universal warrants; and
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whether settlement will occur on a net basis or a gross basis.
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reduce the amount receivable upon exercise, cancellation or expiration;
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shorten the period of time during which the warrants may be exercised;
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change the exercise price of the warrants;
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otherwise materially and adversely affect the exercise rights of the beneficial owners of the warrants; or
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reduce the percentage of outstanding warrants whose holders must consent to modification or amendment of the applicable warrant agreement or the terms of the warrants.
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additions to working capital;
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the redemption or repurchase of outstanding securities;
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the repayment of indebtedness; and
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the expansion of our business through internal growth or acquisitions.
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purchase the debt securities and warrants at their “issue price,” which will equal the first price at which a substantial amount of the debt securities and warrants, as applicable, are sold to the public (not including bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers) and
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will hold the debt securities and warrants as capital assets (generally, property held for investment) within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”).
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U.S. expatriates and certain former citizens or long-term residents of the United States;
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banks and certain financial institutions;
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“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
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insurance companies;
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certain dealers and traders in securities or commodities;
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investors holding debt securities or warrants as part of a “straddle,” wash sale, hedging conversion transaction, integrated transaction or constructive sale transaction;
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U.S. Holders (as defined below) whose functional currency is not the U.S. dollar;
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partnerships (or other entities classified as partnerships for U.S. federal income tax purposes), S corporations or other flow-through entities for U.S. federal income tax purposes;
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regulated investment companies;
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real estate investment trusts;
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tax-exempt entities, including “individual retirement accounts” or “Roth IRAs” as defined in Section 408 or 408A of the Code, respectively;
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foreign governments or agencies; or
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persons subject to the alternative minimum tax.
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a citizen or individual resident of the United States;
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a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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a trust that (i) is subject to the supervision of a court within the United States and the control of one or more U.S. persons, or (ii) has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person; or
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an estate the income of which is subject to U.S. federal income taxation regardless of its source
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a single fixed rate of interest payable throughout the term of the debt security;
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a single variable rate payable throughout the term of the debt security; or
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to the extent described as such in the applicable prospectus supplement or pricing supplement, any other qualifying floating rate or rates.
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an individual who is classified as a nonresident alien;
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a foreign corporation; or
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a foreign estate or trust.
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a holder who is an individual present in the United States for 183 days or more in the taxable year of disposition and who is not otherwise a resident of the United States for U.S. federal income tax purposes;
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certain former citizens or residents of the United States; or
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a holder for whom income or gain in respect of debt securities or warrants is effectively connected with the conduct of a trade or business in the United States.
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the Non-U.S. Holder does not own, directly or by attribution, ten percent or more of the total combined voting power of all classes of Jefferies Financial Group Inc. stock that are entitled to vote;
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the Non-U.S. Holder is not a controlled foreign corporation related, directly or indirectly, to us through stock ownership;
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the Non-U.S. Holder is not a bank receiving interest under Section 881(c)(3)(A) of the Code; and
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the U.S. paying agents (collectively referred to as “U.S. Payors”) do not have actual knowledge or reason to know that the holder is a U.S. person and:
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(i)
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the holder has furnished to the U.S. Payor an IRS Form W-8BEN, an IRS Form W-8BEN-E or an acceptable substitute form upon which the holder certifies, under penalties of perjury, that the holder is (or, in the case of a Non-U.S. Holder that is an estate or trust, such forms certifying that each beneficiary of the estate or trust is) a non-U.S. person;
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(ii)
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the U.S. Payor has received a withholding certificate (furnished on an appropriate IRS Form W-8 or an acceptable substitute form) from a person claiming to be:
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(A)
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a withholding foreign partnership (generally a foreign partnership that has entered into an agreement with the IRS to assume primary withholding responsibility with respect to distributions and guaranteed payments it makes to its partners);
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(B)
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a qualified intermediary (generally a non-U.S. financial institution or clearing organization or a non-U.S. branch or office of a U.S. financial institution or clearing organization that is a party to a withholding agreement with the IRS); or
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(C)
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a U.S. branch of a non-U.S. bank or of a non-U.S. insurance company, that has agreed to be treated as a U.S. person for withholding purposes,
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(iii)
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the U.S. Payor receives a statement from a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business and holds the debt securities on behalf of the Non-U.S. Holder,
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(A)
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certifying to the U.S. Payor under penalties of perjury that an IRS Form W-8BEN, an IRS Form W-8BEN-E or an acceptable substitute form has been received from the holder by it or by a similar financial institution between it and the holder, and
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(B)
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to which is attached a copy of an IRS Form W-8BEN, an IRS Form W-8BEN-E or an acceptable substitute form, or
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(iv)
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the U.S. Payor otherwise possesses documentation upon which it may rely to treat the payments as made to a non-U.S. person that is, for U.S. federal income tax purposes, the beneficial owner of the payments on the debt securities in accordance with U.S. Treasury regulations.
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the Non-U.S. Holder is engaged in the conduct of a trade or business in the United States;
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interest income on the Non-U.S. Holder’s debt securities is effectively connected with the conduct of its trade or business in the United States; and
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the Non-U.S. Holder has certified to the U.S. Payor on an IRS Form W-8ECI or an acceptable substitute form that it is exempt from withholding tax because the interest income on its debt securities will be effectively connected with the conduct of its trade or business in the United States.
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an appropriate IRS Form W-8 or an acceptable substitute form upon which the holder certifies, under penalties of perjury, that the holder is not a United States person; or
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other documentation upon which it may rely to treat the payment as made to a non-United States person in accordance with U.S. Treasury regulations; or
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the holder otherwise establishes an exemption.
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the proceeds are transferred to an account maintained by the holder in the United States;
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the payment of proceeds or the confirmation of the sale is mailed to the holder at a United States address; or
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the sale has some other specified connection with the United States as provided in U.S. Treasury regulations, unless the broker does not have actual knowledge or a reason to know that the holder is a United States person and the documentation requirements described above (relating to a sale of debt securities or warrants effected at a United States office of a broker) are met or the holder otherwise establishes an exemption.
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a United States person;
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a controlled foreign corporation for United States federal income tax purposes;
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a foreign person 50% or more of whose gross income is effectively connected with the conduct of a United States trade or business for a specified three-year period; or
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a foreign partnership, if at any time during its tax year:
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one or more of its partners are “U.S. persons,” as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership, or
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such foreign partnership is engaged in the conduct of a United States trade or business; unless the broker does not have actual knowledge or a reason to know that the holder is a United States person and the documentation requirements described above (relating to a sale of debt securities or warrants effected at a United States office of a broker) are met or the holder otherwise establishes an exemption.
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Item 14.
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Other Expenses of Issuance and Distribution
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Amount to
be paid
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SEC registration fee*
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$
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Rating agency fees**
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Legal fees and expenses**
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Accounting fees and expenses**
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Printing fees**
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Trustee’s fees and expenses**
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Miscellaneous**
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Total
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$
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*
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Deferred in reliance upon Rule 456(b) and 457(r).
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**
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Estimated expenses are not presently known because an indeterminate amount of securities is covered by this registration statement.
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Item 15.
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Indemnification of Directors and Officers
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Item 16.
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Exhibits
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Exhibit No.
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Description
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Form of distribution agreement for debt securities.
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1.2
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Form of distribution agreement for warrants (to be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference).
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Indenture, dated as of March 12, 2002 (Senior Securities), by and between Jefferies Group, Inc. and The Bank of New York Mellon, as Trustee is incorporated by reference to Exhibit 4.1 to Jefferies Group LLC’s and Jefferies Group Capital Finance Inc.’s Form S-3 Registration Statement filed on February 1, 2019 (File Nos. 333-229494 and 333-229494-01).
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First Supplemental Indenture, dated as of July 15, 2003, to Indenture dated as of March 12, 2002 by and between Jefferies Group LLC (formerly Jefferies Group, Inc.) and The Bank of New York Mellon is incorporated by reference to Exhibit 4.2 to Jefferies Group, Inc.’s Form S-3 Registration Statement filed on July 15, 2003 (No. 333-107032).
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Second Supplemental Indenture, dated as of December 19, 2012, to the Indenture dated as of March 12, 2002, by and between Jefferies Group, Inc. and The Bank of New York Mellon, as trustee Mellon is incorporated by reference to Exhibit 4.1 to Jefferies Group, Inc.’s Form 8-K filed on December 20, 2012.
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Third Supplemental Indenture, dated as of March 1, 2013, to the Indenture dated as of March 12, 2002, by and between Jefferies Group LLC and The Bank of New York Mellon, as trustee is incorporated by reference to Exhibit 4.3 to Jefferies Group LLC’s Form 8-K filed on March 1, 2013.
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Indenture, dated as of May 26, 2016 (Senior Debt Securities), by and among Jefferies Group LLC and Jefferies Group Capital Finance Inc. and The Bank of New York Mellon, as Trustee, is incorporated by reference to Exhibit 4.1 of the Form 8-A of Jefferies Group LLC and Jefferies Group Capital Finance Inc. filed on January 17, 2017.
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Form of subordinated debt indenture, by and among Jefferies Group LLC, Jefferies Group Capital Finance Inc. and The Bank of New York Mellon, as trustee, to be entered into at a later date, is incorporated by reference to Exhibit 4.12 to Jefferies Group LLC’s and Jefferies Group Capital Finance Inc.’s Form S-3 Registration Statement filed on February 4, 2016 (File Nos. 333-209385 and 333-209385-01).
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4.7
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Form of warrant agreement (to be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by reference).
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Form of senior fixed rate debt security of Jefferies Group LLC and Jefferies Group Capital Finance Inc.
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Form of senior floating rate debt security of Jefferies Group LLC and Jefferies Group Capital Finance Inc.
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Form of subordinated fixed rate debt security of Jefferies Group LLC and Jefferies Group Capital Finance Inc.
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Form of subordinated floating rate debt security of Jefferies Group LLC and Jefferies Group Capital Finance Inc.
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4.12
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Form of warrant (to be included in Exhibit 4.7).
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Exhibit No.
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Description
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Opinion of Sidley Austin LLP.
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Tax Opinion of Sidley Austin LLP.
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Consent of Deloitte & Touche LLP.
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Consent of Sidley Austin LLP (included in Exhibit 5.1).
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Power of Attorney (included on signature page).
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Form T-1 statement of eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon with respect to the Indenture (Senior Securities), dated as of March 12, 2002, by and between Jefferies Group LLC (formerly Jefferies Group, Inc.) and The Bank of New York Mellon.
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Form T-1 statement of eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon with respect to the Indenture, dated as of May 26, 2016 (Senior Debt Securities), by and among Jefferies Group LLC and Jefferies Group Capital Finance Inc. and The Bank of New York Mellon, as Trustee.
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Form T-1 statement of eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon with respect to the Form of subordinated debt indenture, by and among Jefferies Group LLC, Jefferies Group Capital Finance Inc. and The Bank of New York Mellon, as trustee, to be entered into at a later date.
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Calculation of Filing Fee Table.
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Item 17.
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Undertakings
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JEFFERIES GROUP LLC
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/s/ Matt Larson
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Matt Larson
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Chief Financial Officer, Executive Vice President
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Signature
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Title
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Date
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/s/ Richard B. Handler
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Chairman of the Board of Directors, Chief Executive Officer (principal executive officer)
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February 1, 2022
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Richard B. Handler
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/s/ Matt Larson
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Chief Financial Officer, Executive Vice President (principal financial officer)
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February 1, 2022
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Matt Larson
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/s/ Mark L. Cagno
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Global Controller (principal accounting officer)
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February 1, 2022
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Mark L. Cagno
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/s/ Brian P. Friedman
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Director and Chairman, Executive Committee
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February 1, 2022
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Brian P. Friedman
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/s/ Linda L. Adamany
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Director
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February 1, 2022
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Linda L. Adamany
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/s/ Barry J. Alperin
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Director
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February 1, 2022
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Barry J. Alperin
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/s/ Robert D. Beyer
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Director
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February 1, 2022
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Robert D. Beyer
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Signature
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Title
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Date
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/s/ Francisco L. Borges
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Director
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February 1, 2022
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Francisco L. Borges
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/s/ Matrice Ellis Kirk
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Director
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February 1, 2022
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Matrice Ellis Kirk
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/s/ MaryAnne Gilmartin
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Director
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February 1, 2022
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MaryAnne Gilmartin
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/s/ Jacob M. Katz
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Director
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February 1, 2022
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Jacob M. Katz
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/s/ Michael T. O’Kane
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Director
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February 1, 2022
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Michael T. O’Kane
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/s/ Joseph S. Steinberg
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Director
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February 1, 2022
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Joseph S. Steinberg
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/s/ Melissa V. Weiler
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Director
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February 1, 2022
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Melissa V. Weiler
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JEFFERIES GROUP CAPITAL FINANCE INC.
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/s/ Matt Larson
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Matt Larson
Chief Financial Officer
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Signature
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Title
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Date
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/s/ Richard B. Handler
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Chief Executive Officer and Director (principal executive officer)
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February 1, 2022
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Richard B. Handler
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/s/ Brian P. Friedman
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President and Director
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February 1, 2022
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Brian P. Friedman
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/s/ Matt Larson
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Chief Financial Officer
(principal financial officer)
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February 1, 2022
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Matt Larson
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/s/ Mark L. Cagno
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Controller
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February 1, 2022
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Mark L. Cagno
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Exhibit 1.1
JEFFERIES
GROUP LLC.
(a Delaware limited liability company)
JEFFERIES
GROUP CAPITAL FINANCE INC.
(a Delaware corporation)
GLOBAL MEDIUM TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
Dated: February 1, 2022
JEFFERIES
GROUP LLC
(a Delaware limited liability company)
JEFFERIES
GROUP CAPITAL FINANCE INC.
(a Delaware corporation)
GLOBAL MEDIUM TERM NOTES
DISTRIBUTION AGREEMENT
February 1, 2022
JEFFERIES
LLC
As Representative
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Jefferies Group LLC, a Delaware limited liability company (the “Company”), and Jefferies Group Capital Finance Inc., a Delaware corporation and wholly owned subsidiary of the Company (the “Co-Issuer” and together with the Company, the “Issuers”) propose to issue and sell from time to time their Global Medium Term Notes, Series A (the “Notes”). For purposes of this Distribution Agreement (the “Agreement”) between the Issuers and Jefferies LLC, the term “Agent” shall mean Jefferies LLC and any additional parties that the Issuers, in their sole discretion, may appoint from time to time to act as Agent hereunder as set forth on Schedule A hereto or in any related Pricing Supplement (as defined below). Unless otherwise set forth in any separate agreement substantially in the form attached as Schedule C or such other form as may be agreed upon by the Issuers and the Representative (a “Terms Agreement”) relating to the sale of Notes, Jefferies LLC shall act as representative (the “Representative”) of the Agents. The Notes may be issued as senior indebtedness (the “Senior Notes”) or subordinated indebtedness (the “Subordinated Notes”) of the Issuers, and as used herein the term “Notes” includes the Senior Notes and the Subordinated Notes. The Senior Notes will be issued pursuant to the provisions of a senior indenture, dated May 26, 2016 (as may be supplemented or amended from time to time, the “Senior Debt Indenture”), among the Issuers and The Bank of New York Mellon, as trustee (the “Trustee”). The Subordinated Notes will be issued pursuant to the provisions of a subordinated indenture to be entered into at a later date (as may be supplemented or amended from time to time, the “Subordinated Debt Indenture”), among the Issuers and the Trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter referred to individually as an “Indenture” and collectively as the “Indentures.” The term “Indenture,” as used herein, includes the Officers’ Certificate (as defined in the Indenture) establishing the form and terms of the Notes pursuant to Section 3.01 of the Indenture.
Subject to the terms and conditions contained in this Agreement, the Issuers hereby (1) appoint you as agent of the Issuers for the purpose of soliciting offers to purchase Notes, and you hereby agree to use your reasonable best efforts to solicit offers to purchase the Notes upon terms acceptable to the Issuers at such times and in such amounts as the Issuers shall from time to time specify and in accordance with the terms hereof and (2) agree that whenever the Issuers determine to sell Notes pursuant to this Agreement directly to the Agent as principal for resale to others, such Notes shall be sold pursuant to a Terms Agreement relating to such sale among the Issuers and the Agent and any other agents or dealers (the “Selected Dealers”). The Issuers reserve their right to enter into agreements substantially identical hereto with other agents and to offer and sell the Notes directly on their own behalf.
The Issuers have filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (Nos. 333-[*]), including the related preliminary prospectus or prospectuses, which registration statement became effective upon filing under Rule 462(e) of the rules and regulations of the Commission (the “1933 Act Regulations”) under the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement, as amended, covers the registration of the Notes under the 1933 Act. Such registration statement, at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by 1933 Act Regulations, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” The prospectus included in the Original Registration Statement, in the form it has most recently been filed with the Commission, is herein called the “Base Prospectus.” The Issuers have prepared, or will promptly prepare for filing with, or transmission for filing to, the Commission, pursuant to Rule 424 of the 1933 Act Regulations, a prospectus supplement to the Base Prospectus (the “Prospectus Supplement”) and one or more Product Supplements (each a “Product Supplement”). The Prospectus Supplement and any Product Supplement, together with the Base Prospectus, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as from time to time amended or supplemented, and including any pricing supplement to the Prospectus Supplement that sets forth the final terms of a particular issue of Notes, substantially in the form of Schedule D attached hereto or such other form as may be agreed upon by the Issuers and the Representative (a “Pricing Supplement”), is herein called the “Prospectus.” “General Disclosure Package” shall mean the Statutory Prospectus (as defined below), together with any Issuer General Use Free Writing Prospectus(es) (as defined below) with respect to a particular offering of Notes. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, Prospectus or the General Disclosure Package shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, Prospectus or preliminary prospectus, as the case may be, prior to the date hereof; and all references in this Agreement to amendments or supplements to the Registration Statement, Base Prospectus, Prospectus Supplement, Product Supplement or Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, Base Prospectus, Prospectus Supplement, Product Supplement or Prospectus, as the case may be.
Section 1. | Representations and Warranties. |
(a) Representations and Warranties by the Issuers. The Issuers jointly and severally represent and warrant to the Agent as of the date hereof, as of the time of each acceptance (the “Time of Acceptance”) by the Issuers of an offer for the purchase of the Notes (including any purchase by the Agent as principal, pursuant to a Terms Agreement or otherwise), as of each Settlement Date (as defined herein), and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented or there is filed with the Commission any document incorporated by reference into the Prospectus (other than any Current Report on Form 8-K relating exclusively to the issuance of debt securities under the Registration Statement or furnished solely for the purpose of disclosure under Item 2.02, and/or Item 7.01, thereof and/or exhibits furnished pursuant to Item 9.01 thereof) (each of the times referenced above being referred to herein as a “Representation Date”) as follows:
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Issuers or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Notes in reliance on the exemption of Rule 163 of the 1933 Act Regulations and (D) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”), including not having been and not being an “ineligible issuer” as defined in Rule 405. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Notes, since their registration on the Registration Statement, have been and remain eligible for registration by the Issuers on a Rule 405 “automatic shelf registration statement”. The Issuers have not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time thereafter that the Issuers or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Notes and at the date hereof, neither of the Issuers was, and each is not, an “ineligible issuer,” as defined in Rule 405.
(ii) Registration Statement, Prospectus and Disclosure at Time of Acceptance. The Original Registration Statement became effective upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”) on February 1, 2022. No stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuers, are contemplated by the Commission, and any request on the part of the Commission for additional information with respect to the Registration Statement has been complied with.
Neither the Issuers, nor any person acting on the Issuers’ behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act Regulations), has made any offer that is a written communication relating to the Notes prior to the filing of the Original Registration Statement.
At the respective times the Original Registration Statement and each amendment thereto became effective and as of each Representation Date, the Registration Statement complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as amended (the “1939 Act”), and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Issuers make no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the 1939 Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Issuers by or on behalf of any Agent specifically for inclusion in the Registration Statement or the Prospectus (or any supplement thereto).
Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and as of each Representation Date, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Each of the Base Prospectus, any Product Supplement and the Prospectus Supplement complied when so filed in all material respects with the 1933 Act Regulations and each such Base Prospectus, Product Supplement or Prospectus Supplement, as the case may be, that is delivered to the Agent for use in connection with any offering of Notes was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Time of Acceptance with respect to any offering of Notes, neither (x) the General Disclosure Package, nor (y) any individual Issuer Limited Use Free Writing Prospectus respecting such offering of Notes, when considered together with the General Disclosure Package, shall include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Notes that (i) is required to be filed with the Commission by the Issuers, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Notes or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Issuers’ records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the Base Prospectus, any Product Supplement and the Prospectus Supplement relating to the Notes, including any document incorporated by reference therein, together with any preliminary Pricing Supplement or other prospectus deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Notes to which it relates or until any earlier date that the Issuers notified or notify the Agent as described in Section 3(g), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Issuers by any Agent expressly for use therein.
(iii) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”); and, when read together with the other information in the Prospectus, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(iv) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries taken as a whole, and (C) except as in the ordinary course of business consistent with past practices, there has been no dividend or distribution of any kind declared paid or made by the Company on any class of its capital stock.
(v) Good Standing of the Issuers and the Subsidiaries. The Company and Jefferies LLC, a Delaware limited liability company, are validly existing in good standing under the laws of the jurisdiction in which they are formed with full power and authority to own or lease, as the case may be, and to operate their properties and conduct their business as described in the Prospectus, and the Company and Jefferies LLC are in good standing and duly qualified to do business under the laws of each jurisdiction that requires such qualification of the Company or Jefferies LLC, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business. The Co-Issuer has been duly incorporated and is validly existing in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is in good standing and duly qualified to do business as a foreign corporation under the laws of each jurisdiction that requires such qualification of the Co-Issuer, except where the failure to be so qualified would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(vi) Capital Stock of the Subsidiaries. All the outstanding shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus (or as represented by minority interests as disclosed in the financial statements incorporated by reference therein), all outstanding shares of capital stock of the subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances (other than, in the case of certain non-U.S. subsidiaries, director qualifying shares which individually and in the aggregate represent an immaterial ownership interest in such subsidiaries). Jefferies LLC is the only subsidiary that is a Significant Subsidiary (as such term is defined by Rule 405) of the Company.
(vii) Capitalization. The Company’s authorized equity capitalization is as set forth in the Prospectus and the Notes conform in all material respects to the description thereof contained or incorporated by reference in the Prospectus; and, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue (other than equity compensation grants and awards under the Company’s plans in the ordinary course consistent with past practice), or rights to convert any obligations into or exchange any Notes for, shares of capital stock of or ownership interests in the Company are outstanding.
(viii) Accuracy of Exhibits and Statements. There is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in (I) the Prospectus under the headings “Certain ERISA Considerations”, “Description of Notes” and “Description of Securities We May Offer - Debt Securities” and (II) the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2021 under the headings “Part I - Item 1. Business - Regulation” and “Part I - Item 3. - Legal Proceedings”, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(ix) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Issuers and constitutes a valid and binding obligation of the Issuers.
(x) Investment Company Act. Each of the Issuers is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(xi) Absence of Further Requirements. No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the 1933 Act and the 1939 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Agent in the manner contemplated herein and in the Prospectus.
(xii) Absence of Conflicts. Neither the issue and sale of the Notes nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuers or any of their subsidiaries pursuant to, (i) the organizational documents of the Issuers or any of their subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Issuers or any of their subsidiaries are a party or bound or to which their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Issuers or any of their subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuers or any of their subsidiaries or any of their properties, which violation or default would, in the case of clauses (ii) and (iii) above, either individually or in the aggregate with all other violations and defaults referred to in this paragraph (xii) (if any), have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xiii) Absence of Registration Rights. No holders of securities of the Issuers have rights to the registration of such securities under the Registration Statement.
(xiv) | Financial Statements. |
(A) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Prospectus, the Registration Statement and the General Disclosure Package present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the 1933 Act and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
(xv) Absence of Proceedings. No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuers or any of their subsidiaries or their property is pending or, to the best knowledge of the Issuers, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xvi) Possession of Properties. Each of the Issuers and each of their subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted.
(xvii) Absence of Defaults. Neither Issuer nor any subsidiary thereof is in violation or default of (i) any provision of its organizational documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Issuers or such subsidiary or any of its properties, as applicable, which violation or default would, in the case of clauses (ii) and (iii) above, either individually or in the aggregate with all other violations and defaults referred to in this paragraph (xvii) (if any), have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xviii) Independent Registered Public Accounting Firm.
(A) The independent public accountant of the Company has audited the financial statements of the Company and its consolidated subsidiaries and delivered its report with respect to the audited consolidated financial statements incorporated by reference in the Prospectus. Such independent public accountant is an independent registered public accounting firm with respect to the Company as required by the 1933 Act and the applicable published rules and regulations of the Public Company Accounting Oversight Board.
(xix) Accounting Controls and Disclosure Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (c) access to assets is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
The Company and its consolidated subsidiaries employ disclosure controls and procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xx) Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxi) Tax Laws. The Issuers have filed all foreign, federal, state and local tax returns that are required to be filed or have requested extensions thereof (except in any case in which the failure so to file would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof) and has paid all taxes shown by such returns to be payable and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xxii) Absence of Labor Dispute. No labor problem or dispute with the employees of the Issuers or any of their subsidiaries exists or is threatened or imminent, and the Issuers are not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, that could have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xxiii) Insurance. The Issuers and each of their subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all material policies of insurance and fidelity or surety bonds insuring the Issuers or any of their subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Issuers and their subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Issuers or any of their subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause, except for claims that in the aggregate are not significant in amount; neither the Issuers nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Issuers nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xxiv) Dividends. No subsidiary of the Company or the Co-Issuer is currently prohibited, directly or indirectly, from paying any dividends to the Company or Co-Issuer, as the case may be, from making any other distribution on such subsidiary’s equity interests, from repaying to the Company or Co-Issuer any loans or advances to such subsidiary from the Company or Co-Issuer or from transferring any of such subsidiary’s property or assets to the Company or Co-Issuer or any other subsidiary of the Company or Co-Issuer, except as described in or contemplated by the Prospectus.
(xxv) Possession of Licenses and Permits. The Issuers and their subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary and material to the conduct of their respective businesses, and neither the Issuers nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof).
(xxvi) Absence of Manipulation. The Issuers have not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the 1934 Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(xxvii) Environmental Laws. The Issuers and their subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto filed after the date hereof). Except as set forth in the Prospectus, neither the Issuers nor any of their subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(xxviii) ERISA. Each of the Issuers and their subsidiaries has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to each “plan” (as defined in Section 3(3) of ERISA and such regulations and published interpretations) in which employees of the Issuers and their subsidiaries are eligible to participate and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and such regulations and published interpretations. The Issuers and their subsidiaries have not incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA.
(xxix) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Issuers are not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes.
(xxx) Redemption. The Issuers have determined that there is no more than a remote likelihood that they will exercise their right to redeem the Notes in circumstances where the amount that the Issuers would have to pay in redemption is based on the sum of the present values of the remaining scheduled payments of interest and principal on the Notes. The Issuers make this representation only in connection with the discussion in the Prospectus under the heading “Material United States Federal Income Tax Consequences”.
(xxxi) Foreign Corrupt Practices Act. Neither the Issuers nor any of their subsidiaries nor, to the knowledge of the Issuers, any director, officer, agent, employee or affiliate of the Issuers or any of their subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by either Issuer or any subsidiary of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Issuers and their subsidiaries have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed reasonably to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(xxxii) Money Laundering Laws. The operations of the Issuers and their subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuers or any of their subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuers, threatened.
(xxxiii) OFAC. Neither the Issuers nor any of their subsidiaries nor, to the knowledge of the Issuers, any director, officer, agent, employee or affiliate of the Issuers or any of their subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Issuers will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary or other person or entity, for the purpose of financing the activities of any subsidiary subject to, or any other person known to the Issuers to be currently subject to, any U.S. sanctions administered by OFAC.
(xxxiv) Description of Indentures. The Indentures conform in all material respects to the descriptions thereof contained in the Prospectus.
(xxxv) Due Authorization of the Indentures and the Notes. The Indentures have been duly authorized, executed and delivered by the Issuers, have been duly qualified under the 1939 Act, and constitute legal, valid and binding instruments enforceable against the Issuers in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the applicable Indenture and delivered pursuant to this Agreement, will constitute legal, valid and binding obligations enforceable against the Issuers in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
(b) Officer’s Certificates. Any certificate signed by any officer of either Issuer or any of its subsidiaries delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such Issuer to each Agent as to the matters covered thereby.
Section 2. | Solicitation of Offers to Purchase; Administrative Procedures. |
(a) Solicitation of Offers. The Agent agrees to use its reasonable best efforts to solicit offers to purchase the Notes upon the terms and conditions set forth herein, in the applicable General Disclosure Package and in the Prospectus and upon the terms communicated to the Agent from time to time by the Issuers. For the purpose of such solicitation, the Agent will use the Prospectus as then amended or supplemented (together with any preliminary Pricing Supplement for such Notes, if applicable) which has been most recently distributed to the Agent by the Issuers, and the Agent will solicit offers to purchase only as permitted or contemplated thereby and herein and will solicit offers to purchase the Notes only as permitted by the 1933 Act and the applicable securities laws or regulations of any jurisdiction. The Issuers reserve the right, in their sole discretion, to suspend solicitation of offers to purchase the Notes commencing at any time for any period of time or permanently. The Issuers shall timely deliver notice to the Agent of their decision to suspend solicitations. Upon receipt of instructions (which may be given orally) from the Issuers, the Agent will suspend promptly solicitation of offers to purchase until such time as the Issuers have advised the Agent that such solicitation may be resumed.
Unless otherwise instructed by the Issuers, the Agent is authorized to solicit offers to purchase the Notes only in denominations of $1,000 or more (in multiples of $1,000). The Agent is not authorized to appoint subagents or to engage the services of any other broker or dealer in connection with the offer or sale of the Notes without the consent of the Issuers. Unless otherwise instructed by the Issuers, the Agent shall communicate to the Issuers, orally or in writing, each offer to purchase Notes solicited by such Agent on an agency basis, other than those offers rejected by the Agent. The Issuers shall have the sole right to accept offers to purchase Notes and may reject any proposed offers to purchase Notes as a whole or in part. Each Agent shall have the right, in its discretion reasonably exercised, to reject any proposed purchase of Notes, as a whole or in part, and any such rejection shall not be deemed a breach of its agreements contained herein. The Issuers agree to pay the Agent, as consideration for soliciting offers to purchase Notes pursuant to a Terms Agreement, a commission in an amount to be agreed among the Issuers and the Agent at the time of the sale of Notes. In the absence of such an agreement, such commission will be an amount, equal to the percentages of the initial offering price of each Note actually sold, between 0.125% and 0.750% (the “Concession”); provided, however, that the Issuers and the Agent also may agree to a Concession greater than or less than the percentages set forth above. The actual aggregate Concession with respect to each series of Notes will be set forth in the related Pricing Supplement. The Agent and any other Agents or Selected Dealers will share the above-mentioned Concession in such proportions as they may agree.
Unless otherwise authorized by the Issuers, all Notes shall be sold to the public at a purchase price not to exceed 100% of the principal amount thereof, plus accrued interest, if any, with the exception of Notes that bear a zero interest rate and are issued at a substantial discount from the principal amount payable at the Maturity Date (a “Zero-Coupon Note”). Such Zero-Coupon Notes shall be sold to the public at a purchase price no greater than an amount, expressed as a percentage of the principal face amount of such Notes, equal to the net proceeds to the Issuers on the sale of such Notes, plus the Concession, plus accrued interest, if any. Such purchase price shall be set forth in the confirmation statement of the Agent or Selected Dealer responsible for such sale and delivered to the purchaser along with a copy of the Prospectus (if not previously delivered) and Pricing Supplement.
Procedural details relating to the issue and delivery of, and the solicitation of purchases and payment for, the Notes are set forth in the Administrative Procedures attached hereto as Schedule C (the “Procedures”), as amended from time to time. Unless otherwise provided in a Terms Agreement, the provisions of the Procedures shall apply to all transactions contemplated hereunder. The Agent and the Issuers each agree to perform the respective duties and obligations specifically provided to be performed by each in the Procedures as amended from time to time. The Procedures may only be amended by written agreement of the Issuers and the Representative.
(b) Terms Agreement. Each sale of Notes directly to the Agent as principal for resale to others shall be made in accordance with the terms of this Agreement, the Procedures and Terms Agreement to be entered into which will provide for the sale of such Notes to, and the purchase and reoffering thereof by, the Agent. To the extent applicable, a Terms Agreement may also specify certain provisions relating to the reoffering of such Notes by the Agent. The offering of Notes by the Issuers hereunder and the Agent’s agreement to purchase Notes pursuant to any Terms Agreement shall be deemed to have been made on the basis of the representations, warranties and agreements of the Issuers herein contained and shall be subject to the terms and conditions herein set forth. Each Terms Agreement shall describe the Notes to be purchased pursuant thereto by the Agent, and may specify, among other things, the principal amount of Notes to be purchased, the interest rate or formula and maturity date or dates of such Notes, the interest payment dates, if any, the net proceeds to the Issuers, the initial public offering price at which the Notes are proposed to be reoffered, and the date and place of delivery of and payment for such Notes (the “Settlement Date”), whether the Notes provide for a survivor’s option, whether the Notes are redeemable or repayable and on what terms and conditions, and any other relevant terms. In connection with the resale of the Notes purchased, without the consent of the Issuers, the Agent is not authorized to appoint subagents or to engage the service of any other broker or dealer, nor may the Agent reallow any portion of the Concession paid to such Agent. Terms Agreements may take the form of an exchange of any standard form of written telecommunication between the Agent and the Issuers.
(c) Delivery of Documents. The documents required to be delivered by Section 5 of this Agreement as a condition precedent to the Agent’s obligation to begin soliciting offers to purchase the Notes as agent of the Issuers shall be delivered at the office of Cooley LLP, 55 Hudson Yards, New York, New York 10001, on the date hereof, or at such other time and/or place as the Agent and Issuers may agree upon in writing, but in no event later than the day prior to the earlier of (i) the date on which the Agent begins soliciting offers to purchase the Notes and (ii) the first date on which the Issuers accept any offer by the Agent to purchase Notes as principal. The date of delivery of such documents is referred to herein as the “Commencement Date.”
Section 3. | Covenants of the Issuers. The Issuers covenant with the Agent as follows: |
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing Fees. The Issuers will notify the Agent immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Notes shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Issuers become the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Notes. The Issuers will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Issuers shall pay the required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) (i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents. The Issuers will give the Agent notice of their intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Notes or any amendment, supplement or revision to either the Base Prospectus, any Product Supplement, the Prospectus Supplement or to the Prospectus (other than an amendment or supplement providing solely for a change in the interest rates or maturity dates of Notes or similar changes or an amendment or supplement effected by the filing of a document with the Commission pursuant to the 1934 Act), and the Issuers will furnish the Agent with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel for the Representative shall object.
(c) Delivery of Registration Statements. The Issuers have furnished or will deliver to the Representative and counsel for the Representative, without charge, signed or photocopies of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part thereof) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Original Registration Statement and of each amendment thereto (without exhibits). The copies of the Original Registration Statement and each amendment thereto furnished to the Representative will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Issuers will deliver to the Agent, without charge, as many copies of the Base Prospectus, any Product Supplement, the Prospectus Supplement and any Pricing Supplement as the Agent reasonably requested, and the Issuers hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Issuers will furnish to the Agent, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as the Agent may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Agent will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Delivery of 1934 Act Documents. Upon request, the Company will furnish to the Agent a paper copy of any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by the Company with the Commission pursuant to the Exchange Act as soon as practicable after the filing thereof, if such documents are not then publicly available on a website or other electronic system maintained by the Commission.
(f) Preparation of Pricing Supplements. The Issuers will prepare, with respect to any Notes to be sold through or to the Agent pursuant to this Agreement (and any applicable Terms Agreement), a Pricing Supplement with respect to such Notes substantially in one of the forms attached as Exhibit E or in such other form previously agreed upon by the Representative and the Issuers and will file such Pricing Supplement with the Commission pursuant to Rule 424(b) under the 1933 Act (i) if applicable, in preliminary form on the date on which the proposed pricing information for any Notes is first used and (ii) in final form not later than the close of business on the second business day following the date the applicable Notes are sold. If the Agent has advised the Issuers that it is relying, in connection with any offering of Notes, upon the exemption from Section 5(b) of the 1933 Act set forth in Rule 172 under the 1933 Act, and the Issuers are unable to file the applicable Pricing Supplement within the time period specified in the previous sentence, the Issuers shall file such Pricing Supplement as soon as practicable thereafter, as contemplated by Rule 172(c)(3) under the 1933 Act.
(g) Continued Compliance with Securities Laws. The Issuers will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Notes, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Representative or for the Issuers, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or to file a new registration statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, (i) immediate notice shall be given, and confirmed in writing, to the Agent to cease the solicitation of offers to purchase the Notes and sales and (ii) the Issuers will promptly prepare and file with the Commission, subject to Section 3(b), such amendment, supplement or new registration statement as may be necessary to correct such statement or omission or to comply with such requirements, the Issuers will use their best efforts to have such amendment or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Notes) and the Issuers will furnish to the Agent such number of copies of such amendment, supplement or new registration statement as the Agent may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Notes) or the Statutory Prospectus or the Preliminary Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Issuers will promptly notify the Agent and will promptly amend or supplement, at their own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(h) Blue Sky Qualifications. The Issuers will use their best efforts, in cooperation with the Agent, to qualify the Notes for offering and sale under the applicable securities laws of such states and other jurisdictions as the Agent may designate and to maintain such qualifications in effect for a period of not less than one year from date hereof; provided, however, that neither Issuer shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in Notes in any jurisdiction in which it is not so qualified or so subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Issuers will also supply the Agent with such information as is necessary for the determination of the legality of the Notes for investment under the laws of such jurisdictions as the Agent may request.
(i) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Agent the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(j) Use of Proceeds. The Issuers will use the net proceeds received by them from the sale of the Notes in the manner specified in the Prospectus under “Use of Proceeds.”
(k) Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) Suspension of Certain Obligations. The Issuers shall not be required to comply with the provisions of subsections (g), (i), (o), (p) or (q) of this Section during any period from the time (i) the Agent has suspended solicitation of purchases of the Notes in its capacity as agent pursuant to a request from the Issuers and (ii) the Agent shall not then hold any Notes as principal, until the time the Issuers shall determine that solicitation of purchases of the Notes should be resumed or shall subsequently agree for the Agent to purchase Notes as principal.
(m) Issuer Free Writing Prospectuses. The Issuers represent and agree that, unless they obtain the prior consent of the Representative, and each Agent represents and agrees that, unless it obtains the prior consent of the Issuers, it has not made and will not make any offer relating to the Notes that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Issuers and the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers represent that they have treated or agree that they will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and have complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(n) Reaffirmation of Representations and Warranties. Each acceptance by the Issuers of an offer for the purchase of Notes, and each delivery of Notes to the Agent pursuant to a sale of Notes to the Agent, shall be deemed to be an affirmation that the representations and warranties of the Issuers in this Agreement and in any certificate theretofore delivered pursuant hereto are true and correct at the time of such acceptance or sale, as the case may be, and an undertaking that such representations and warranties will be true and correct at the time of delivery to the Agent of the Note or Notes relating to such acceptance or sale, as the case may be, as though made at and as of each such time (and it is understood that such representations and warranties shall relate to the Registration Statement, the applicable General Disclosure Package and the Prospectus, each as amended and supplemented to each such time and to the applicable General Disclosure Package at the applicable Time of Acceptance relating thereto in respect of such Notes).
(o) Subsequent Delivery of Certificates. Except as otherwise provided in Section 3(l) hereof, each time:
(i) the Issuers accept a Terms Agreement requiring such updating provisions, or as otherwise may be requested by the Representative;
(ii) the Company files with the Commission an Annual Report on Form 10K or a Quarterly Report on Form 10-Q that is incorporated by reference into the Prospectus; or
(iii) if required by the Representative after the Registration Statement, any General Disclosure Package or the Prospectus has been amended or supplemented (other than by an amendment or supplement providing solely for interest rates, maturity dates or other terms of Notes or similar changes or an amendment or supplement which relates exclusively to an offering of securities other than the Notes),
the Issuers shall furnish or cause to be furnished forthwith to the Agent a certificate of the Issuers, signed by duly authorized officers of the Issuers dated the date specified in the applicable Terms Agreement, or the date requested by the Representative, or dated the date of filing with the Commission of such supplement or document or the date of effectiveness of such amendment, as the case may be, in form satisfactory to the Representative to the effect that the statements contained in the certificate referred to in Section 5(e) hereof which was last furnished to the Agent are true and correct as of the date specified in the applicable Terms Agreement or at the time of such filing, amendment or supplement, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to, as applicable, the Registration Statement, the applicable General Disclosure Package and the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in said Section 5(e), modified as necessary to relate to the Registration Statement, the applicable General Disclosure Package and the Prospectus as amended and supplemented to the time of delivery of such certificate.
(p) Subsequent Delivery of Legal Opinions. Except as otherwise provided in Section 3(l) hereof, each time:
(i) the Issuers accept a Terms Agreement requiring such updating provisions, or as otherwise may be requested by the Representative;
(ii) the Company files with the Commission an Annual Report on Form 10K or a Quarterly Report on Form 10-Q that is incorporated by reference into the Prospectus; or
(iii) if required by the Representative after the Registration Statement, any General Disclosure Package or the Prospectus has been amended or supplemented (other than by an amendment or supplement providing solely for interest rates, maturity dates or other terms of the Notes or similar changes or an amendment or supplement which relates exclusively to an offering of securities other than the Notes),
the Issuers shall furnish or cause to be furnished forthwith to the Agent and counsel to the Representative the written opinions of Sidley Austin LLP, counsel to the Issuers, dated the date specified in the applicable Terms Agreement, or the date requested by the Representative, or dated the date of filing with the Commission of such supplement or document or the date of effectiveness of such amendment, as the case may be, in form and substance satisfactory to the Representative, of the same tenor as the opinion referred to in Section 5(c) hereof, but modified, as necessary, to relate to, as applicable, the Registration Statement, the applicable General Disclosure Package and the Prospectus as amended or supplemented to the time of delivery of such opinion; or, in lieu of such opinion, counsel last furnishing such opinion to the Agent shall furnish the Agent with a letter substantially to the effect that the Agent may rely on such last opinion to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, the applicable General Disclosure Package (including, if applicable, any Permitted Free Writing Prospectuses) and the Prospectus as amended or supplemented).
(q) Subsequent Delivery of Comfort Letters. Except as otherwise provided in Section 3(l) hereof, each time:
(i) the Issuers accept a Terms Agreement requiring such updating provisions, or as otherwise may be requested by the Representative;
(ii) the Company files with the Commission an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q that is incorporated by reference into the Prospectus; or
(iii) if required by the Representative after the Registration Statement or the Prospectus has been amended or supplemented to include additional financial information required to be set forth or incorporated by reference into the Prospectus under the terms of Item 11 of Form S-3 under the 1933 Act,
the Company shall cause its independent public accountant forthwith to furnish the Agent a letter (which may refer to letters previously delivered to the Agent), dated the date specified in the applicable Terms Agreement, or the date requested by the Representative, or dated the date of effectiveness of such amendment, supplement or document filed with the Commission, as the case may be, in form satisfactory to the Representative. If any other information included therein is of an accounting, financial or statistical nature, the Representative may request procedures be performed with respect to such other information. If the independent public accountant of the Company is willing to perform and report on the requested procedures, such letter should cover such other information. Any letter required to be provided by the independent public accountant of the Company hereunder shall be provided as soon as reasonably practicable after the filing of the Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, or within a reasonable time of a request made pursuant to subparagraph (iii) hereof or on the date specified in an applicable Terms Agreement.
Section 4. | Payment of Expenses; |
(a) Expenses. The Issuers will pay the following expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing, delivery to the Agent and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Agent of this Agreement, the Indentures and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Notes, (iii) the preparation, issuance and delivery of the certificates for the Notes to the Agent, (iv) the fees and disbursements of the Issuers’ counsel, accountants and other advisors, (v) the qualification of the Notes under securities laws in accordance with the provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Representative in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Agent of copies of each preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any amendments or supplements thereto and any cost associated with electronic delivery of any of the foregoing by the Agent to investors, (vii) the preparation, printing and delivery to the Agent of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indentures and the Notes, (x) any fees payable in connection with the rating of the Notes and (xi) the costs and expenses incurred by the Agent in connection with determining their compliance with the rules and regulations of The Financial Industry Regulatory Authority, Inc. (“FINRA”) related to the Agent’s participation in the offering and distribution of the Notes, including any related FINRA filing fees and the legal fees of, and disbursements by, counsel to the Representative.
Section 5. Conditions of Agent’s Obligations. The obligations of the Agent hereunder to solicit offers to purchase Notes or to purchase Notes as principal pursuant to any Terms Agreement or otherwise shall be subject to the accuracy of the representations and warranties on the part of the Issuers contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the applicable Settlement Date (including the filing of any document incorporated by reference therein), as of the applicable Time of Acceptance (as defined below) and as of the applicable Settlement Date, to the accuracy of the statements of the Issuers’ officers made in any certificates pursuant to the provisions hereof, to the performance by the Issuers of their obligations hereunder and to the following additional conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing Fee. For the period from and after the date of this Agreement and on or prior to the applicable Settlement Date:
(i) The Registration Statement will have become effective and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Representative;
(ii) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements that have not been resolved following good faith discussions between the Issuers and the applicable Agent;
(iii) The Issuers shall have paid the required Commission filing fees relating to the Notes within the time period required by Rule 456(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) Pricing Supplement. Prior to the applicable Settlement Date, (i) the Issuers shall have filed the applicable Pricing Supplement with the Commission in the manner and within the time period required by Rule 424(b) under the 1933 Act and (ii) any other Issuer Free Writing Prospectus (as defined herein) required to be filed by the Issuers with respect to the applicable Notes pursuant to Rule 433(d) under the 1933 Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433 or, if applicable, in accordance with Rule 164(b).
(c) Opinion of Counsel for Issuers. On the Commencement Date, or as required by Section 3(p), the Agent shall have received the favorable opinion of Sidley Austin LLP, counsel for the Issuers, in form and substance satisfactory to counsel for the Representative, together with signed or reproduced copies of such opinion for each of the other Agents or, in lieu of such opinion, a letter to the effect that such Agent may rely on the opinion which was last furnished to such Agent pursuant to this Section 5(c) to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, the applicable General Disclosure Package (including, if applicable, any Permitted Free Writing Prospectuses) and the Prospectus as amended or supplemented).
(d) Opinion of Counsel for Agent. On the Commencement Date, the Agent shall have received the favorable opinion of Cooley LLP, counsel for the Representative, in form and substance satisfactory to the Representative, with signed or reproduced copies of such opinion for each of the other Agents or, in lieu of such opinion, a letter to the effect that such Agent may rely on the opinion which was last furnished to such Agent pursuant to this Section 5(d) to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement, the applicable General Disclosure Package (including, if applicable, any Permitted Free Writing Prospectuses) and the Prospectus as amended or supplemented). In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York, the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representative. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Issuers and their subsidiaries and certificates of public officials.
(e) Officers’ Certificate. On the Commencement Date, or as required by Section 3 (o), the Agent shall have received a certificate of the Chairman of the Executive Committee, Chief Executive Officer or a Vice President of each of the Issuers and of the chief financial or chief accounting officer of each of the Issuers, to the effect that there (i) has not been, since the respective dates as of which information is given in the Prospectus or the General Disclosure Package, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of such Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) such Issuer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to their knowledge, contemplated by the Commission.
(f) Independent Accountants’ Comfort Letters. On the Commencement Date, or as required by Section 3(q), the Agent shall have received from the independent public accountant of the Company a letter dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Agents containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the preliminary prospectus and the Prospectus.
If such letter is delivered to an Agent as a condition to closing in an offering of Notes that such Agent has agreed to purchase as principal, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and the applicable Disclosure Package, there shall not have been (I) any change or decrease specified in such letter or letters or (II) any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, the effect of which, in any case referred to in clause (I) or (II) above, is, in the judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of such Notes.
(g) Additional Documents. The Agent shall have received the certificates required by Section 3(o) as of the applicable date with respect to any purchase of Notes by the Agent, counsel for the Representative shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Issuers in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Representative and counsel for the Representative
If any condition specified in this Section 5 shall not have been fulfilled in all material respects when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and its counsel, this Agreement and all obligations of any Agent may be terminated by such Agent by notice to the Issuers at any time and any such termination shall be without liability of any party to any other party, except that the covenant regarding provision of an earnings statement set forth in Section 3(i) of this Agreement, the indemnity and contribution agreements set forth in Section 6 of this Agreement, the provisions concerning payment of expenses under Section 4 of this Agreement, the provisions concerning the survival of the representations, warranties and agreements set forth in Section 1(b) of this Agreement and the provisions regarding parties set forth under Section 12 of this Agreement shall remain in effect.
The obligations of the Agent to purchase Notes as principal, both under this Agreement and under any Terms Agreement, are subject to the conditions that (i) no litigation or proceeding shall be threatened or pending to restrain or enjoin the issuance or delivery of the Notes, or which in any way questions or affects the validity of the Notes and (ii) there shall have been no material adverse change not in the ordinary course of business in the consolidated financial condition of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement and the Prospectus, each of which conditions shall be met on the date of the Terms Agreement and on the corresponding Settlement Date.
Further, if specifically called for by any written agreement by the Agent, including a Terms Agreement, to purchase Notes as principal, the Agent’s obligations hereunder and under such agreement, shall be subject to such additional conditions, including those set forth in clauses (a), (b), (c), (d) and (e) above, as agreed to by the parties, each of which such agreed conditions shall be met on the corresponding Settlement Date (and any documents delivered pursuant to this paragraph shall address any applicable General Disclosure Package).
Section 6. | Indemnification. |
(a) Indemnification of Agent. (1) The Issuers, jointly and severally, agree to indemnify and hold harmless each Agent and each person, if any, who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto) or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Issuers;
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Issuers by any Agent expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430B Information or any preliminary prospectus any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Issuers, Directors and Officers. Each Agent severally agrees to indemnify and hold harmless the Issuers, their directors, each of their officers who signed the Registration Statement, and each person, if any, who controls the Issuers within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a)(1) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430B Information or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Issuers by the Agent expressly for use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)(1) above, counsel to the indemnified parties shall be selected by the Representative and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Issuers. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(1) (ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
Section 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers on the one hand and the Agent on the other hand from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Issuers on the one hand and of the Agent on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers on the one hand and the Agent on the other hand in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Issuers and the total commissions and underwriting discounts received by the Agents bear to the total sales price from the sale of the Notes to or through the Agent to the date of such liability.
The relative fault of the Issuers on the one hand and the Agent on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers or by the Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Issuers and the Agent agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Agent were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Agent shall be required to contribute any amount in excess of the commissions and underwriting discounts received by such agent in connection with the Notes sold by it from which such losses, liabilities, claims damages and expenses arise.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Agent’s Affiliates and selling agents shall have the same rights to contribution as such Agent, and each director of an Issuer, each officer of an Issuer who signed the Registration Statement, and each person, if any, who controls an Issuer within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Issuers. Each Agent’s respective obligations to contribute pursuant to this Section 7 are several in proportion to the total commissions and underwriting discounts received by such Agent relative to the total sales price from the sale of the Notes to or through such Agent to the date of such liability and not joint.
Section 8. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Issuers or any of their subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Agent or its Affiliates or selling agents, any person controlling any Agent, its officers or directors or any person controlling an Issuer, and (ii) delivery of and payment for the Notes.
Section 9. Termination of Agreement.
(a) Termination; General. The Issuers may elect to suspend or terminate the offering of Notes under this Agreement at any time. The Issuers also (as to any one or more of the Agent) or any Agent (as to itself) may terminate the appointment and arrangements described in this Agreement. Upon receipt of instructions from the Issuers, the Agent shall suspend or terminate the participation of any Selected Dealer under any applicable dealer agreement. Such actions may be taken, in the case of the Issuers, by giving prompt written notice of suspension to all of the Agents and by giving not less than 5 business days’ written notice of termination to the affected party and the other parties to this Agreement, or in the case of an Agent, by giving not less than 5 business days’ written notice of termination to the Issuers and except that, if at the time of termination an offer for the purchase of Notes shall have been accepted by the Issuers but the time of delivery to the purchaser or his agent of the Note or Notes relating thereto shall not yet have occurred, the Issuers shall have the obligations provided herein with respect to such Note or Notes. The Issuers shall promptly notify the other parties in writing of any such termination.
The Agent may terminate any agreement hereunder, as between itself and the Issuers, to purchase such Notes, immediately upon notice to the Issuers at any time prior to the Settlement Date relating thereto, if (i) there has been, since the date of such agreement, any material adverse change or any development involving a prospective material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries the effect of which is such as to make it, in the judgment of the Agent, impracticable to market the Notes or enforce contracts for the sale of the Notes, (ii) since the date of such agreement, trading in any securities of the Company has been suspended by the Commission or a national securities exchange, or if trading generally on the New York Stock Exchange shall have been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said exchanges or by order of the Commission or any other governmental authority, (iii) a material disruption in the commercial banking or securities settlement or clearance services in the United States has occurred or a banking moratorium shall have been declared by Federal or New York State authorities, (iv) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis (in the United States or elsewhere) the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Agent, impracticable to market the Notes or enforce contracts for the sale of the Notes, or (v) since the date of such agreement (a) a downgrading shall have occurred in the rating accorded the Issuers’ debt securities by any nationally recognized statistical rating organization, or (b) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Issuers’ debt securities.
Any Terms Agreement shall be subject to termination in your absolute discretion on the terms set forth or incorporated by reference therein. The termination of this Agreement shall not require termination of any agreement by the Agent to purchase Notes as principal, and the termination of any such agreement shall not require termination of this Agreement.
(b) Survival. If this Agreement is terminated, Section 4, Section 6, Section 7 and Section 8 hereof shall survive and shall remain in effect; provided that if at the time of termination of this Agreement an offer to purchase Notes has been accepted by the Issuers but the time of delivery to the Agent of such Notes has not occurred, the provisions of all of Section 2 and Section 3 shall also survive until time of delivery.
In the event a proposed offering is not completed according to the terms of this Agreement, an Agent will be reimbursed by the Issuers only for out-of-pocket accountable expenses actually incurred by such Agent, and the Issuers shall remain responsible for such other expenses set forth in Section 4.
Section 10. Tax Disclosure. Notwithstanding any other provision of this Agreement, immediately upon commencement of discussions with respect to the transactions contemplated hereby, the Issuers (and each employee, representative or other agent of the Issuers) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Issuers relating to such tax treatment and tax structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term “tax structure” includes any fact that may be relevant to understanding the purported or claimed federal income tax treatment of the transactions contemplated hereby.
Section 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Agent shall be directed to Jefferies LLC. at 520 Madison Avenue, New York, New York 10022, Attention: Investment Grade Debt Capital Markets with a copy to the General Counsel, and notices to the Issuers shall be directed to the Company at 520 Madison Avenue, New York, New York 10022, Attention: Legal Department.
Section 12. No Advisory or Fiduciary Relationship. The Issuers acknowledge and agree that: (i) each purchase and sale of the Notes pursuant to this Agreement, including the determination of the offering prices of the Notes and any related discounts and commissions, is an arm’s-length commercial transaction between the Issuers, on the one hand, and the Agent, on the other hand, and the Issuers are capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction the Agent is, has been, and will be acting solely as a principal and is not the financial advisor or fiduciary of the Issuers or their affiliates, stockholders, creditors or employees or any other party; (iii) the Agent has not assumed or will not assume an advisory or fiduciary responsibility in favor of the Issuers with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Issuers on other matters) and the Agent has no obligation to the Issuers with respect to the offerings contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the Agent and its respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuers and that the Agent has no obligation to disclose any of such interests by virtue of any advisory or fiduciary relationship; and (v) the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the offerings contemplated hereby and the Issuers have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
Section 13. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuers and the Agent, or any of them, with respect to the subject matter hereof.
Section 14. Parties. This Agreement shall inure to the benefit of and be binding upon the Agent and the Issuers and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Agent and the Issuers and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Agent and the Issuers and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes from any Agent shall be deemed to be a successor by reason merely of such purchase.
Section 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 16. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 17. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Agent that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Agent that is a Covered Entity or a BHC Act Affiliate of such Agent becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Agent are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 17:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com (any such signature, an “Electronic Signature”)) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The words “execution,” signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement shall include any Electronic Signature, except to the extent electronic notices are expressly prohibited under this Agreement.
Section 19. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Issuers a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agent and the Issuers in accordance with its terms.
Very truly yours, | ||
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
CONFIRMED AND ACCEPTED, | ||
as of the date first above written: | ||
JEFFERIES LLC | ||
Acting individually and as Representative | ||
By: | ||
Name: | ||
Title: | ||
Authorized Signatory |
[Signature Page to Distribution Agreement]
SCHEDULE A
Name of Agents
Jefferies LLC
SCHEDULE B
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
GLOBAL MEDIUM TERM NOTES
ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific terms of the offering of Global Medium Term Notes (the “Notes”) on a continuous basis by Jefferies Group LLC, a Delaware limited liability company (the “Company”), and Jefferies Group Capital Finance Inc., a Delaware corporation and wholly owned subsidiary of the Company (the “Co-Issuer” and together with the Company, the “Issuers”) pursuant to the Distribution Agreement dated February 1, 2022 (as may be amended from time to time, the “Distribution Agreement”) among the Issuers and Jefferies LLC (the “Agent”). The Notes may be issued as senior indebtedness (the “Senior Notes”) or subordinated indebtedness (the “Subordinated Notes”) of the Issuers, and as used herein the term “Notes” includes the Senior Notes and the Subordinated Notes. The Senior Notes will be issued pursuant to the provisions of a senior indenture (as may be supplemented or amended from time to time, the “Senior Debt Indenture”), among the Issuers and The Bank of New York Mellon, as trustee. The Subordinated Notes will be issued pursuant to the provisions of a subordinated indenture (as may be supplemented or amended from time to time, the “Subordinated Debt Indenture”), among the Issuers and The Bank of New York Mellon, as trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter referred to individually as an “Indenture” and collectively as the “Indentures.”
In the Distribution Agreement, the Agent has agreed to use reasonable efforts to solicit purchases of the Notes, and the administrative procedures explained below will govern the issuance and settlement of any Notes sold through the Agent, as agent of the Issuers. The Agent, as principal, may also purchase Notes for its own account, and the Issuers and the Agent will enter into a terms agreement (a “Notes Terms Agreement”), as contemplated by the Distribution Agreement. The administrative procedures explained below will govern the issuance and settlement of any Notes purchased by the Agent, as principal, unless otherwise specified in the applicable Notes Terms Agreement.
The Bank of New York Mellon will be the Registrar, Authenticating Agent and Paying Agent for the Senior Notes, and in each case, will perform the duties specified herein. The Bank of New York Mellon will be the Registrar, Authenticating Agent and Paying Agent for the Subordinated Notes and in each case, will perform the duties specified herein.
Each Note will be represented by either (i) a Global Note (as defined below) delivered to The Bank of New York Mellon, as agent for The Depository Trust Company (“DTC”), and recorded in the book entry system maintained by DTC (a “Book-Entry Note”) or (ii) a certificate delivered to the holder thereof or a person designated by such holder (a “Certificated Note”). Except as set forth in the Indentures, an owner of a Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable in either U.S. dollars or other specified currencies, will be issued in accordance with the administrative procedures set forth in Part I hereof as they may subsequently be amended as the result of changes in DTC’s operating procedures. Certificated Notes will be issued in accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the Notes or any prospectus supplement relating to the Notes shall be used herein as therein defined. The Issuers will advise the Agent in writing of the employees of the Issuers with whom the Agent is to communicate regarding offers to purchase Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for eligibility in the book entry system maintained by DTC, The Bank of New York Mellon will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under DTC’s Operational Arrangements dated February 20, 2002, as amended from time to time, including by the Blanket Issuer Letter of Representations from the Issuers to DTC, their obligations under a Medium-Term Note Certificate Agreement between The Bank of New York Mellon and DTC dated as of April 4, 1989, and their obligations as participants in DTC, including DTC’s Same-Day Funds Settlement System (“SDFS”).
Issuance: | On any date of settlement (as defined under “Settlement” below) for one or more Book-Entry Notes, the Issuers will issue a single global Note in fully registered form without coupons (a “Global Note”) representing up to U.S. $500,000,000 principal amount of all such Notes that have the same Original Issue Date, Maturity Date and other terms. Each Global Note will bear an “Interest Accrual Date,” which will be (i) with respect to an original Global Note (or any portion thereof), its Original Issue Date and (ii) with respect to any Global Note (or any portion thereof) issued subsequently upon exchange of a Global Note, or in lieu of a destroyed, lost or stolen Global Note, the most recent Interest Payment Date to which interest has been paid or duly provided for on the predecessor Global Note or Notes (or if no such payment or provision has been made, the Original Issue Date of the predecessor Global Note), regardless of the date of authentication of such subsequently issued Global Note. Book-Entry Notes may be payable in either U.S. dollars or other specified currencies. No Global Note will represent any Certificated Note. | |
Denominations: | Book-Entry Notes will be issued in principal amounts of U.S. $1,000 or any amount in excess thereof that is an integral multiple of U.S. $1,000 or, if such Book-Entry Notes are issued in a currency other than U.S. dollars, principal amounts of such currency in denominations of the equivalent of U.S. $1,000 (rounded to an integral multiple of 1,000 units of such currency), unless otherwise indicated in any applicable free writing prospectus, Term Sheet and Pricing Supplement. Global Notes will be denominated in principal amounts not in excess of U.S. $500,000,000. If one or more Book-Entry Notes having an aggregate principal amount in excess of U.S. $500,000,000 would, but for the preceding sentence, be represented by a single Global Note, then one Global Note will be issued to represent each U.S. $500,000,000 principal amount of such Book-Entry Note or Notes and an additional Global Note will be issued to represent any remaining principal amount of such Book-Entry Note or Notes. In such a case, each of the Global Notes representing such Book-Entry Note or Notes shall be assigned the same CUSIP number. |
Preparation of Pricing Supplement: | If any order to purchase a Book-Entry Note is accepted by or on behalf of the Issuers, the Issuers will prepare a free writing prospectus and/or Term Sheet, if applicable, and a pricing supplement (a “Pricing Supplement”) reflecting the terms of such Note. The Issuers (i) will arrange to file with the Commission an electronic format document, in the manner prescribed by the EDGAR Filer Manual, of such Term Sheet and Pricing Supplement in accordance with, in the case of any free writing prospectus and/or Term Sheet, Rule 433 under the Securities Act and, in the case of the Pricing Supplement, the applicable paragraph of Rule 424(b) under the Securities Act, (ii) will, with respect to each of the free writing prospectus and/or Term Sheet, if applicable, and the Pricing Supplement, as soon as possible and in any event not later than the date on which the applicable document is filed with the Commission, deliver the number of copies of such document to the Agent as the Agent shall request and (iii) will, on the Agent’s behalf, promptly file five copies of such Pricing Supplement with the Financial Industry Regulatory Authority, Inc. (the “FINRA”) or otherwise satisfy FINRA’s filing requirements. The Agent will cause the free writing prospectus and/or Term Sheet, if applicable, and the Pricing Supplement to be delivered, or otherwise made available, to the purchaser of the Note. | |
In each instance that a Pricing Supplement is prepared, the Agent will affix the Pricing Supplement to Prospectuses prior to their use. Outdated free writing prospectus, Term Sheets, Pricing Supplements, and the Prospectuses to which they are attached (other than those retained for files), will be destroyed. | ||
Settlement: | The receipt by the Issuers of immediately available funds in payment for a Book-Entry Note and the authentication and issuance of the Global Note representing such Note shall constitute “settlement” with respect to such Note. All orders accepted by the Issuers will be settled on the fifth Business Day pursuant to the timetable for settlement set forth below unless the Issuers and the purchaser agree to settlement on another day, which shall be no earlier than the next Business Day. |
Settlement Procedures: | Settlement Procedures with regard to each Book-Entry Note sold by the Issuers to or through the Agent (unless otherwise specified pursuant to a Notes Terms Agreement), shall be as follows: |
A. | The Agent will advise the Issuers by telephone that such Note is a Book-Entry Note and of the following settlement information: | |||
1. | Principal amount. | |||
2. | Maturity Date. | |||
3. | In the case of a Fixed Rate Book-Entry Note, the Interest Rate, whether such Note will pay interest annually or semiannually and whether such Note is an Amortizing Note, and, if so, the amortization schedule, or, in the case of a Floating Rate Book-Entry Note, the Initial Interest Rate (if known at such time), Interest Payment Date(s), Interest Payment Period, Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum Interest Rate (if any) and the Alternate Rate Event Spread (if any). | |||
4. | Redemption or repayment provisions, if any. | |||
5. | Ranking. | |||
6. | Settlement date and time (Original Issue Date). | |||
7. | Interest Accrual Date. | |||
8. | Price. | |||
9. | Agent’s commission, if any, determined as provided in the Distribution Agreement. | |||
10. | Specified Currency. |
11. | Whether the Note is an Original Issue Discount Note (an “OID Note”), and if it is an OID Note, the applicability of Modified Payment upon Acceleration (and, if so, the Issue Price). | |||
12. | Whether the Note is a Renewable Note, and if it is a Renewable Note, the Initial Maturity Date, the Final Maturity Date, the Election Dates and the Maturity Extension Dates. | |||
13. | Whether the Issuers have the option to reset the Spread or Spread Multiplier of the Note. | |||
14. | Whether the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable Note, or any form of exchangeable Note. | |||
15. | Any other applicable provisions. | |||
B. | The Issuers will advise The Bank of New York Mellon by telephone or electronic transmission (confirmed in writing at any time on the same date) of the information set forth in “Settlement Procedures” “A” above, as applicable, such advice to contain a representation as to the aggregate principal amount of Notes permitted to be issued hereunder after such issuance. The Bank of New York Mellon will then assign a CUSIP number to the Global Note representing a Note and will notify the Issuers and the Agent of such CUSIP number(s) by telephone as soon as practicable, except that for Optionally Exchangeable and Mandatorily Exchangeable Notes the Agent will obtain a CUSIP number for the Global Note representing such Note and will notify the Issuers and The Bank of New York Mellon of such CUSIP number(s) by telephone as soon as practicable. | |||
C. | The Bank of New York Mellon will enter a pending deposit message through DTC’s Participant Terminal System, providing the following settlement information to DTC, the Agent and Standard & Poor’s Corporation: | |||
1. | The information set forth in “Settlement Procedure” “A” above, as applicable. | |||
2. | The Initial Interest Payment Date for the Notes, the number of days by which such date succeeds the related DTC Record Date and, if known, amount of interest payable on such Initial Interest Payment Date. |
3. | The CUSIP number of the Global Note. | |||
4. | Whether the Global Note will represent any other Book-Entry Note (to the extent known at such time). | |||
5. | Whether any Note is an Amortizing Note (by an appropriate notation in the comments field of DTC’s Participant Terminal System). | |||
6. | The number of Participant accounts to be maintained by DTC on behalf of the Agent and The Bank of New York Mellon. | |||
D. | The Bank of New York Mellon will, as applicable, authenticate, complete and deliver the Global Note representing the Note. | |||
E. | DTC will credit such Note to The Bank of New York Mellon’s participant account at DTC. | |||
F. | The Bank of New York Mellon will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC to (i) debit the Note to The Bank of New York Mellon’s participant account and credit such Note to the Agent’s participant account and (ii) debit the Agent’s settlement account and credit The Bank of New York Mellon’s settlement account for an amount equal to the price of such Note less the Agent’s commission, if any. The entry of such a deliver order shall constitute a representation and warranty by The Bank of New York Mellon to DTC that (a) the Global Note representing a Book-Entry Note has been issued and authenticated and (b) The Bank of New York Mellon is holding such Global Note pursuant to the Medium-Term Note Certificate Agreement between The Bank of New York Mellon and DTC. | |||
G. | Unless the Agent is the end purchaser of a Note, the Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Note to the Agent’s participant account and credit such Note to the participant accounts of the Participants with respect to such Note and (ii) to debit the settlement accounts of such Participants and credit the settlement account of the Agent for an amount equal to the price of such Note. |
H. | Transfers of funds in accordance with SDFS deliver orders described in Settlement Procedures “F” and “G” will be settled in accordance with SDFS operating procedures in effect on the settlement date. | |||
I. | The Bank of New York Mellon will credit to the account of the Issuers maintained at The Bank of New York Mellon, New York, New York, in funds available for immediate use in the amount transferred to The Bank of New York Mellon in accordance with “Settlement Procedure” “F”. | |||
J. | Unless the Agent is the end purchaser of the Note, the Agent will confirm the purchase of such Note to the purchaser either by transmitting to the Participants with respect to such Note a confirmation order or orders through DTC’s institutional delivery system or by mailing a written confirmation to such purchaser. | |||
K. | Monthly, The Bank of New York Mellon will send to the Issuers a statement setting forth the principal amount of Notes outstanding as of that date under the Indentures and setting forth a brief description of any sales of which the Issuers have advised The Bank of New York Mellon that have not yet been settled. |
Settlement Procedures Timetable: | For sales by the Issuers of Book-Entry Notes to or through the Agent (unless otherwise specified pursuant to a Notes Terms Agreement) for settlement on the first Business Day after the sale date, Settlement Procedures “A” through “J” set forth above shall be completed as soon as possible but not later than the respective times in New York City set forth below: |
Settlement
Procedure |
Time | ||
A | 11:00 A.M. on the sale date | ||
B | 12:00 Noon on the sale date | ||
C | 2:00 P.M. on the sale date | ||
D | 9:00 A.M. on the settlement date | ||
E | 10:00 A.M. on the settlement date | ||
F-G | 2:00 P.M. on the settlement date | ||
H | 4:45 P.M. on the settlement date | ||
I-J | 5:00 P.M. on the settlement date |
If a sale is to be settled more than one Business Day after the sale date, Settlement Procedures “A”, “B” and “C” shall be completed as soon as practicable but no later than 11:00 A.M., 12 Noon and 2:00 P.M., respectively, on the first Business Day after the sale date. If the Initial Interest Rate for a Floating Rate Book-Entry Note has not been determined at the time that “Settlement Procedure” “A” is completed, “Settlement Procedure” “B” and “C” shall be completed as soon as such rate has been determined but no later than 12 Noon and 2:00 P.M., respectively, on the first Business Day before the settlement date. “Settlement Procedure” “H” is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the settlement date. |
If settlement of a Book-Entry Note is rescheduled or canceled, The Bank of New York Mellon, after receiving notice from the Issuers or the Agent, will deliver to DTC, through DTC’s Participant Terminal System, a cancellation message to such effect by no later than 2:00 P.M. on the Business Day immediately preceding the scheduled settlement date. | |
Failure to Settle: | If The Bank of New York Mellon fails to enter an SDFS deliver order with respect to a Book-Entry Note pursuant to “Settlement Procedure” “F”, The Bank of New York Mellon may deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Note to The Bank of New York Mellon’s participant account, provided that The Bank of New York Mellon’s participant account contains a principal amount of the Global Note representing such Note that is at least equal to the principal amount to be debited. If a withdrawal message is processed with respect to all the Book-Entry Notes represented by a Global Note, The Bank of New York Mellon will mark such Global Note “canceled,” make appropriate entries in The Bank of New York Mellon’s records and send such canceled Global Note to the Issuers. The CUSIP number assigned to such Global Note shall, in accordance with the procedures of the CUSIP Service Bureau of Standard & Poor’s Corporation, be canceled and not immediately reassigned. If a withdrawal message is processed with respect to one or more, but not all, of the Book-Entry Notes represented by a Global Note, The Bank of New York Mellon will exchange such Global Note for two Global Notes, one of which shall represent such Book-Entry Note or Notes and shall be canceled immediately after issuance and the other of which shall represent the remaining Book-Entry Notes previously represented by the surrendered Global Note and shall bear the CUSIP number of the surrendered Global Note. |
If the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Note by the beneficial purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the Agent may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement Procedures “F” and “G”, respectively. Thereafter, The Bank of New York Mellon will deliver the withdrawal message and take the related actions described in the preceding paragraph. | |
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. | |
In the event of a failure to settle with respect to one or more, but not all, of the Book-Entry Notes to have been represented by a Global Note, The Bank of New York Mellon will provide, in accordance with Settlement Procedures “D” and “F”, for the authentication and issuance of a Global Note representing the Book-Entry Notes to be represented by such Global Note and will make appropriate entries in its records. |
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Bank of New York Mellon will serve as registrar in connection with the Certificated Notes.
Issuance: | Each Certificated Note will be dated and issued as of the date of its authentication by The Bank of New York Mellon. Each Certificated Note will bear an Original Issue Date, which will be (i) with respect to an original Certificated Note (or any portion thereof), its Original Issue Date (which will be the settlement date) and (ii) with respect to any Certificated Note (or portion thereof) issued subsequently upon transfer or exchange of a Certificated Note or in lieu of a destroyed, lost or stolen Certificated Note, the Original Issue Date of the predecessor Certificated Note, regardless of the date of authentication of such subsequently issued Certificated Note. |
Preparation of Pricing Supplement: | If any order to purchase a Certificated Note is accepted by or on behalf of the Issuers, the Issuers will prepare a pricing supplement (a “Pricing Supplement”) reflecting the terms of such Note. The Issuers (i) will arrange to file with the Commission an electronic format document, in the manner prescribed by the EDGAR Filer Manual, of such Pricing Supplement and of any Term Sheet in accordance with, in the case of the Pricing Supplement, the applicable paragraph of Rule 424(b) under the Securities Act and, in the case of any Term Sheet, Rule 433 under the Securities Act, (ii) will, with respect to each of the Term Sheet, if applicable, and the Pricing Supplement, as soon as possible and in any event not later than the date on which the applicable document is filed with the Commission, deliver the number of copies of such document to the Agent as the Agent shall request and (iii) will, on the Agent’s behalf, promptly file five copies of such Pricing Supplement with the Financial Industry Regulatory Authority, Inc. (the “FINRA”) or otherwise satisfy FINRA’s filing requirements. The Agent will cause the Term Sheet, if applicable, and the Pricing Supplement to be delivered, or otherwise made available, to the purchaser of the Note. |
In each instance that a Pricing Supplement is prepared, the Agent will affix the Pricing Supplement to Prospectuses prior to their use. Outdated free writing prospectuses, Term Sheets, Pricing Supplements, and the Prospectuses to which they are attached (other than those retained for files), will be destroyed. |
Settlement: | The receipt by the Issuers of immediately available funds in exchange for an authenticated Certificated Note delivered to the Agent and the Agent’s delivery of such Note against receipt of immediately available funds shall constitute “settlement” with respect to such Note. All offers accepted by the Issuers will be settled on or before the fifth Business Day next succeeding the date of acceptance pursuant to the timetable for settlement set forth below, unless the Issuers and the purchaser agree to settlement on another date. |
Settlement Procedures: | Settlement Procedures with regard to each Certificated Note sold by the Issuers to or through the Agent (unless otherwise specified pursuant to a Notes Terms Agreement) shall be as follows: |
A. | the Agent will advise the Issuers by telephone that such Note is a Certificated Note and of the following settlement information: | |||
1. | Name in which such Note is to be registered (“Registered Note Owner”). | |||
2. | Address of the Registered Note Owner and address for payment of principal and interest. | |||
3. | Taxpayer identification number of the Registered Note Owner (if available). | |||
4. | Principal amount. | |||
5. | Maturity Date. | |||
6. | In the case of a Fixed Rate Certificated Note, the Interest Rate, whether such Note will pay interest annually or semiannually and whether such Note is an Amortizing Note and, if so, the amortization schedule, or, in the case of a Floating Rate Certificated Note, the Initial Interest Rate (if known at such time), Interest Payment Date(s), Interest Payment Period, Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum Interest Rate (if any) and the Alternate Rate Event Spread (if any). |
7. | Redemption or repayment provisions, if any. | |||
8. | Ranking. | |||
9. | Settlement date and time (Original Issue Date). | |||
10. | Interest Accrual Date. | |||
11. | Price. | |||
12. | Agent’s commission, if any, determined as provided in the Distribution Agreement. | |||
13. | Denominations. | |||
14. | Specified Currency. | |||
15. | Whether the Note is an OID Note, and if it is an OID Note, the applicability of Modified Payment upon Acceleration (and if so, the Issue Price). | |||
16. | Whether the Note is a Renewable Note, and if it is a Renewable Note, the Initial Maturity Date, the Final Maturity Date, the Election Dates and the Maturity Extension Dates. | |||
17. | Whether the Issuers have the option to reset the Spread or Spread Multiplier of the Note. | |||
18. | Whether the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable Note, or any form of exchangeable Note. | |||
19. | Any other applicable provisions. |
B. | The Issuers will advise The Bank of New York Mellon by telephone or electronic transmission (confirmed in writing at any time on the sale date) of the information set forth in Settlement Procedure “A” above, as applicable, such advice to contain a representation as to the aggregate principal amount of Notes permitted to be issued hereunder after such issuance. | |||
C. | The Issuers will have delivered to The Bank of New York Mellon a pre-printed four-ply packet for each Note which packet will contain the following documents in forms that have been approved by the Issuers, the Agent and the Trustee, as applicable: | |||
1. | Note with customer confirmation. | |||
2. | Stub One - For The Bank of New York Mellon. | |||
3. | Stub Two - For the Agent. | |||
4. | Stub Three - For the Issuers. | |||
D. | The Bank of New York Mellon will authenticate such Note and deliver it (with the confirmation) and Stubs One and Two to the Agent. The Agent will acknowledge receipt of the Note by stamping or otherwise marking Stub One and returning it to The Bank of New York Mellon. Such delivery will be made only against such acknowledgment of receipt and evidence that instructions have been given by the Agent for payment to the account of the Issuers at The Bank of New York Mellon, New York, New York, or to such other account as the Issuers shall have specified to the Agent and The Bank of New York Mellon in funds available for immediate use, of an amount equal to the price of such Note less the Agent’s commission, if any. In the event that the instructions given by the Agent for payment to the account of the Issuers are revoked, the Issuers will as promptly as possible wire transfer to the account of the Agent an amount of immediately available funds equal to the amount of such payment made. |
E. | Unless the Agent is the end purchaser of such Note, the Agent will deliver such Note (with confirmation) to the customer against payment in immediately payable funds. The Agent will obtain the acknowledgment of receipt of such Note by retaining Stub Two. | |||
F. | The Bank of New York Mellon will send Stub Three to the Issuers by first-class mail. Periodically, The Bank of New York Mellon will also send to the Issuers a statement setting forth the principal amount of the Notes outstanding as of that date under each Indenture and setting forth a brief description of any sales of which the Issuers have advised The Bank of New York Mellon that have not yet been settled. |
Settlement Procedures Timetable: | For sales by the Issuers of Certificated Notes to or through the Agent (unless otherwise specified pursuant to a Notes Terms Agreement), Settlement Procedures “A” through “F” set forth above shall be completed on or before the respective times in New York City set forth below: |
Settlement
Procedure |
Time | ||
A | 2:00 P.M. on day before settlement date | ||
B | 3:00 P.M. on day before settlement date | ||
C-D | 2:15 P.M. on settlement date | ||
E | 3:00 P.M. on settlement date | ||
F | 5:00 P.M. on settlement date |
Failure to Settle: | If a purchaser fails to accept delivery of and make payment for any Certificated Note, the Agent will notify the Issuers and The Bank of New York Mellon by telephone and return such Note to The Bank of New York Mellon. Upon receipt of such notice, the Issuers will immediately wire transfer to the account of the Agent an amount equal to the amount previously credited thereto in respect to such Note. Such wire transfer will be made on the settlement date, if possible, and in any event not later than the Business Day following the settlement date. If the failure shall have occurred for any reason other than a default by the Agent in the performance of its obligations hereunder and under the Distribution Agreement, then the Issuers will reimburse the Agent or The Bank of New York Mellon, as appropriate, on an equitable basis for its loss of the use of the funds during the period when they were credited to the account of the Issuers. Immediately upon receipt of the Certificated Note in respect of which such failure occurred, The Bank of New York Mellon will mark such Note “canceled,” make appropriate entries in The Bank of New York Mellon’s records and send such Note to the Issuers. |
SCHEDULE C
TERMS AGREEMENT
Jefferies Group LLC & Jefferies Group Capital Finance Inc. Terms Agreement
__________, 20___
Jefferies Group LLC
520 Madison Avenue
New York, New York 10022
Jefferies Group Capital Finance Inc.
520 Madison Avenue
New York, New York 10022
Attention:
Re: |
Distribution
Agreement dated February 1, 2022
(the “Distribution Agreement”) |
The undersigned agrees to purchase your Global Medium Term Notes, Series A, [specified designation] (the “Notes”) having the terms set forth below. The offering of the Notes will be made pursuant to a Prospectus dated February 1, 2022, as supplemented by a Prospectus Supplement dated February 1, 2022 [, a Product Supplement dated [•]] [and] [a preliminary Pricing Supplement dated [ ]][,] [and] [a free writing prospectus dated [ ]][,] [and] [a Term Sheet dated [ ]] (collectively, the “General Disclosure Package”). The Notes are expected to have the terms set forth below, but the final terms of the Notes will be those set forth in the General Disclosure Package.
All Notes | Fixed Rate Notes | Floating Rate Notes |
Initial Redemption Date: | Applicability of Issuer’s Option to Extend Original Maturity Date: | Reporting Service: |
Initial Redemption Percentage: | If yes, state Final Maturity Date: | Variable Rate Renewable Notes: |
Annual
Redemption Percentage
Reduction: |
Redemption Dates: | |
Ranking: | Redemption Percentage: | |
Minimum Denominations: | Initial Maturity Date: | |
Other Provisions: | Final Maturity Date: | |
Applicability of Issuer’s Option to Reset Spread or Spread Multiplier: |
The provisions of the Distribution Agreement and the related definitions are incorporated by reference herein and shall be deemed to have the same force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by reference herein. If this Agreement is terminated, the provisions of Sections 4, 6, 11, 14 and 15 of the Distribution Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and documents referred to in Section 3 of the Distribution Agreement will be required: _______________.
JEFFERIES LLC | ||
By: | ||
Name: | ||
Title: |
Accepted: | ||
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Terms Agreement]
SCHEDULE D
Filed under Rule 424(b), Registration Statement Nos. 333-[*]
Pricing Supplement dated ______, 20[●] (To: Prospectus Dated February 1, 2022)
Jefferies Group LLC
520 Madison Avenue
New York, New York 10022
Jefferies Group Capital Finance Inc.
520 Madison Avenue
New York, New York 10022
Jefferies Group LLC
Jefferies Global Medium Term Notes, Series A
Prospectus dated February 1, 2022
CUSIP
Number |
Price
to
Public |
Selling
Commission |
Coupon
Rate (Fixed) |
Coupon
Frequency |
Maturity
Date |
1st
Coupon
Date |
1st
Coupon
Amount |
Survivor’s
Option |
Aggregate
Principal Amount |
Net Proceeds |
Product
Ranking |
YES | SENIOR |
Redemption Information: | ||
Offering Dates: | ||
Trade Date: | ||
Settlement Date: | ||
Minimum Denominations/Increments: | ||
Initial trades settle flat and clear SDFS: DTC Book-Entry Only: | ||
DTC Number: | ||
Lead Agent: Jefferies LLC | ||
Agents: | ||
Other Terms: |
Sch D-1
Exhibit 4.8
[FORM OF FIXED RATE MEDIUM-TERM SENIOR NOTE]
(Face of Security)
[IF A GLOBAL SECURITY, INSERT — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE 2016 INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE 2016 INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO JEFFERIES GROUP LLC, JEFFERIES GROUP CAPITAL FINANCE INC. OR THEIR 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 TO 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]
[INSERT ANY LEGEND REQUIRED BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT AND THE REGULATIONS THEREUNDER.]
THIS SECURITY IS NOT A BANK DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY, NOR IS IT AN OBLIGATION OF, OR GUARANTEED BY, A BANK.
(Face of Security continued on next page)
CUSIP No. ________
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SENIOR NOTES
(Fixed Rate)
The following terms apply to this Security, as and to the extent shown below:
PRINCIPAL AMOUNT: | ORIGNAL ISSUE DATE*: | STATED MATURITY DATE: |
ORIGINAL ISSUE DISCOUNT SECURITY: | ||
Total Amount of OID: | ||
Yield to Maturity: | ||
Initial Accrual Period OID: | ||
SPECIFIED CURRENCY: U.S. dollars for all payments unless otherwise specified below: | REDEMPTION COMMENCEMENT DATE: | INTEREST PAYMENT DATE(S): |
● payments of principal and any premium: | , subject to the provisions | |
● payments of interest: | under | |
Exchange Rate Agent: |
“Payments Due on a Business Day”
below |
|
DEFEASANCE: | REPAYMENT DATE(S): | Interest Rate: % per annum |
Full Defeasance: | ||
Covenant Defeasance: | ||
REDEMPTION OR REPAYMENT PRICE(S): | DAY COUNT CONVENTION: | |
BUSINESS DAY CONVENTION: | ||
OTHER TERMS: |
* | [This date shall be the issue date of this Security, unless there is a Predecessor Security, in which case this date shall be the issue date of the first Predecessor security.] |
(Face of Security continued on next page)
Terms left blank or marked “N/A”, “No”, “None” or in a similar manner do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to this Security have the meanings specified above, unless the context requires otherwise. Other terms used in this Security that are not defined herein but that are defined in the 2016 Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
Jefferies Group LLC, a limited liability company existing under the laws of the State of Delaware (hereinafter called the “Company”, which term includes any successor Person under the 2016 Indenture) and Jefferies Group Capital Finance Inc., a corporation existing under the laws of the State of Delaware (hereinafter called the “Co-Issuer”, which term includes any successor Person under the 2016 Indenture, and the Company and Co-Issuer, collectively, the “Issuers”), for value received as joint and several obligors, hereby promise to pay to, or registered assigns, as principal the Principal Amount on the Stated Maturity Date and to pay interest thereon, from the Original Issue Date or from the most recent Interest Payment Date to which interest has been paid or made available for payment, on the Interest Payment Date(s) in each year, commencing on the first such date specified on the face of this Security, and at the Maturity of the principal hereof, at the rate per annum equal to the Interest Rate specified on the face hereof, until the principal hereof is paid or made available for payment. Any premium and any such installment of interest that is overdue at any time shall also bear interest (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum at which the principal then bears interest, from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
On each Interest Payment Date, the amount of interest payable will equal the Principal Amount hereof multiplied by an accrued interest factor for the Interest Period. The Interest Period will be the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), to but excluding the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof). The accrued interest factor will equal the Interest Rate specified on the face hereof multiplied by the Day Count Convention specified on the face hereof for the applicable Interest Period.
The applicable Day Count Convention is specified on the face hereof and means:
(i) if “1/1 (ISDA)” is specified, 1;
(ii) if “Actual/Actual (ISDA)” or “Act/Act (ISDA)” is specified, the actual number of days in the Interest Period divided by 365 (or, if any portion of that Interest Period falls in a leap year, the sum of (1) the actual number of days in that portion of the Interest Period falling in a leap year divided by 366 and (2) the number of days in that portion of the Interest Period falling in a non-leap year divided by 365);
(iii) if “Actual/Actual (ICMA)” is specified, the number of days in the Interest Period, including February 29 in a leap year, divided by the product of (1) the actual number of days in such Interest Period and (2) the number of Interest Periods in the calendar year;
(iv) if “Actual/Actual (Bond)” is specified, the number of calendar days in the Interest Period, divided by the number of calendar days in the Interest Period multiplied by the number of Interest Periods in the calendar year;
(v) if “Actual/Actual (Euro)” is specified, the number of calendar days in the Interest Period divided by 365 or, if the Interest Period includes February 29, 366;
(vi) if “Actual/365 (Fixed)”, “Act/365 (Fixed)”, “A/365 (Fixed)” or “A365F” is specified, the actual number of days in the Interest Period divided by 365;
(Face of Security continued on next page)
(vii) if “Actual/360 (ISDA)”, “Act/360 (ISDA)” or “A/360 (ISDA)” is specified, the actual number of days in the Interest Period divided by 360;
(viii) if “Actual/360 (ICMA)” is specified, the number of calendar days in the period, including February 29 in a leap year, divided by 360 days;
(ix) if “30/360” is specified, the calculation shall be made assuming a 360-day year of 12 30-day months;
(x) if “30/360 (ISDA)”, “360/360 (ISDA)” or “Bond Basis (ISDA)” is specified, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless such number would be 31, in which case D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless such number would be 31 and D1 is greater than 29, in which case D2 will be 30; and |
(xi) if “30E/360”, “30E/360 (ISDA)” or “Eurobond Basis” is specified, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is the last day of February, in which cases D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is also the last day of February and not the maturity date, in which cases D2 will be 30. |
The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date will, as provided in the 2016 Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the [if Global Security, insert — calendar day (whether or not a Business Day (as defined in Section 3 on the reverse hereof))] [if not a Global Security, insert alternative provision acceptable to Trustee and Registrar] immediately preceding the day on which payment is to be made (as such payment date may be adjusted in accordance with the Business Day Convention specified on the face hereof and the second paragraph under “Payments Due on a Business Day” below) (a “Regular Record Date”). Any interest so payable, but not punctually paid or made available for payment, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof being given to the Holder of this Security not less than 10 days prior to such Special Record Date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the 2016 Indenture. For the purpose of determining the Holder at the close of business on any relevant record date when business is not being conducted, the close of business will mean 5:00 P.M., New York City time, on that day.
(Face of Security continued on next page)
All percentages resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this Security will be made in the Specified Currency for such payment, except as provided in this and the next three paragraphs. The Specified Currency for any payment shall be the currency specified as such on the face of this Security unless, at the time of such payment, such currency is not legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date, in which case the Specified Currency for such payment shall be such coin or currency as at the time of such payment is legal tender for the payment of public and private debts in such country, except as provided in the next sentence. If the euro is specified on the face of this Security as the Specified Currency for any payment, the Specified Currency for such payment shall be such coin or currency as at the time of payment is legal tender for the payment of public and private debts in all EMU Countries (as defined in Section 3 on the reverse hereof), provided that if on any day there are not at least two EMU Countries, or if on any day there are at least two EMU Countries but no coin or currency is legal tender for the payment of public and private debts in all EMU Countries, then the Specified Currency for such payment shall be deemed not to be available to the Issuers on such day.
Except as provided in the next paragraph, any payment to be made on this Security in a Specified Currency other than U.S. dollars will be made in U.S. dollars if the Person entitled to receive such payment transmits a written request for such payment to be made in U.S. dollars to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the payment is to be made. Such written request may be mailed, hand delivered, telecopied or delivered in any other manner approved by the Trustee. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the immediately preceding paragraph will be determined by the Exchange Rate Agent based upon the highest bid quotation received by the Exchange Rate Agent as of approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date, from three (or, if three are not available, then two) recognized foreign exchange dealers selected by the Exchange Rate Agent in The City of New York, in each case for the purchase by the quoting dealer, for U.S. dollars and for settlement on such payment date of an amount of such Specified Currency for such payment equal to the aggregate amount of such Specified Currency payable on such payment date to all Holders of this Security who elect to receive U.S. dollar payments on such payment date, and at which the applicable dealer commits to execute a contract. If the Exchange Rate Agent determines that two such bid quotations are not available on such second Business Day, such payment will be made in the Specified Currency for such payment. All currency exchange costs associated with any payment in U.S. dollars on this Security will be borne by the Holder entitled to receive such payment, by deduction from such payment.
(Face of Security continued on next page)
Notwithstanding the foregoing, if any amount payable on this Security is payable on any day (including at Maturity) in a Specified Currency other than U.S. dollars, and if such Specified Currency is not available to the Issuers on the two Business Days before such day, due to the imposition of exchange controls, disruption in a currency market or any other circumstances beyond the control of the Issuers, the Issuers will be entitled to satisfy their obligation to pay such amount in such Specified Currency by making such payment in U.S. dollars. The amount of such payment in U.S. dollars shall be determined by the Exchange Rate Agent on the basis of an exchange rate for such Specified Currency published at approximately 12:00 noon, New York City time, by a generally recognized and publicly available source, to be determined in the sole discretion of the Exchange Rate Agent, on the latest day before the day on which such payment is to be made (the “Exchange Rate”). Any payment made under such circumstances in U.S. dollars where the required payment is in other than U.S. dollars will not constitute an Event of Default under the 2016 Indenture or this Security.
Manner of Payment — U.S. Dollars
Except as provided in the next paragraph, payment of any amount payable on this Security in U.S. dollars will be made at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender (in the manner provided below) of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that, at the option of the Issuers and subject to the next paragraph, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of this Security is at least $1,000,000 (or the equivalent in another currency) and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
Manner of Payment — Other Specified Currencies
Payment of any amount payable on this Security in a Specified Currency other than U.S. dollars will be made by wire transfer of immediately available funds to such account as is maintained in such Specified Currency at a bank or other financial institution acceptable to the Issuers and the Trustee and as shall have been designated at least five Business Days prior to the applicable payment date by the Person entitled to receive such payment; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Such account designation shall be made by transmitting the appropriate information to the Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier or in any other manner approved by the Trustee. Unless revoked, any such account designation made with respect to this Security by the Holder hereof will remain in effect with respect to any further payments with respect to this Security payable to such Holder. If a payment in a Specified Currency other than U.S. dollars with respect to this Security cannot be made by wire transfer because the required account designation has not been received by the Trustee on or before the requisite date or for any other reason, the Issuers will cause a notice to be given to the Holder of this Security at its registered address requesting an account designation pursuant to which such wire transfer can be made and such payment will be made within five Business Days after the Trustee’s receipt of such a designation meeting the requirements specified above, with the same force and effect as if made on the due date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
(Face of Security continued on next page)
Manner of Payment — Global Securities
Notwithstanding any provision of this Security or the 2016 Indenture, if this Security is a Global Security, the Issuers may make any and all payments of principal, premium and interest on this Security pursuant to the Applicable Procedures of the Depositary for this Security as permitted in the 2016 Indenture.
Payments Due on a Business Day
Notwithstanding any provision of this Security or the 2016 Indenture, if any amount of principal, premium or interest due at the Maturity hereof would otherwise be due on this Security on a day (the “Specified Day”) that is not a Business Day, such amount may be paid or made available for payment on the Business Day that is next succeeding the Specified Day with the same force and effect as if such amount were paid on the Specified Day, and no interest will accrue on the amount so payable for the period from the Specified Day to such next succeeding Business Day.
As specified on the face of this Security, one of the following Business Day Conventions shall apply to any Interest Period or Interest Payment Date other than one that falls on the date of Maturity of the principal hereof. If any such date would otherwise fall on a day that is not a Business Day:
(i) if the Business Day Convention specified on the face hereof is “Following”, then such date shall be postponed to the next day that is a Business Day;
(ii) if the Business Day Convention specified on the face hereof is “Modified Following”, then such date shall be postponed to the next day that is a Business Day; provided that if such next succeeding Business Day falls in the next calendar month, then such date shall be advanced to the immediately preceding Business Day;
(iii) if the Business Day Convention specified on the face hereof is “Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that the Interest Periods shall not be adjusted for non-Business Days; and
(iv) if the Business Day Convention specified on the face hereof is “Modified Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; and provided further that, if such day would fall in the next succeeding calendar month, the date of payment with respect to such Interest Payment Date shall be advanced to the Business Day immediately preceding such Interest Payment Date; and provided further that the Interest Periods shall not be adjusted for non-Business Days.
The provisions of the two immediately preceding paragraphs shall apply to this Security in lieu of the provisions of Section 1.13 of the 2016 Indenture.
(Face of Security continued on next page)
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the 2016 Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next page)
IN WITNESS WHEREOF, the Issuers have each caused this instrument to be duly executed.
Dated:
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
This is one of the Securities of the series designated herein and referred to in the 2016 Indenture.
Dated:
THE BANK OF NEW YORK MELLON,
as Trustee |
||
By: | ||
Authorized Signatory |
(Reverse of Security)
1. Securities and Indenture
This Security is one of a duly authorized issue of securities of the Issuers (herein called the “Securities”) issued and to be issued in one or more series under a Senior Debt Indenture, dated as of May 26, 2016 (herein called the “2016 Indenture”, which term shall have the meaning assigned to it in such instrument), among each of the Issuers and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the 2016 Indenture), and reference is hereby made to the 2016 Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuers, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
2. Series and Denominations
This Security is one of the series of Securities designated on the face hereof, limited to an aggregate principal amount (or the equivalent thereof in any other currency or currencies or currency units) as shall be determined and may be increased from time to time by the Issuers. References herein to “this series” mean the series of Securities designated as Medium-Term Notes.
The Securities of this series are issuable only in registered form without coupons in “Authorized Denominations”, which term shall have the following meaning. For each Security of this series having a principal amount payable in U.S. dollars, the Authorized Denominations shall be $1,000 and integral multiples of $1,000 in excess thereof and for each Security of this series having a principal amount payable in a Specified Currency other than U.S. dollars, the Authorized Denominations shall be the amount of such Specified Currency equivalent, at the Exchange Rate on the first Business Day preceding the date on which the Company accepts the offer to purchase such Security, to $1,000 or any integral multiples of $1,000 in excess thereof.
3. Exchange Rate Agent and Related Terms
If the principal of or interest on this Security is payable in a Specified Currency other than U.S. dollars, the Issuers have initially appointed the institution named on the face of this Security as Exchange Rate Agent to act as such agent with respect to this Security, but the Issuers may, in their sole discretion, appoint any other institution (including any Affiliate of the Issuers) to serve as any such agent from time to time. The Issuers will give the Trustee prompt written notice of any change in any such appointment. Insofar as this Security provides for any such agent to obtain rates, quotes or other data from a bank, dealer or other institution for use in making any determination hereunder, such agent may do so from any institution or institutions of the kind contemplated hereby notwithstanding that any one or more of such institutions are such agent, Affiliates of such agent or Affiliates of the Issuers.
All determinations made by the Exchange Rate Agent may be made by such agent in its sole discretion and, absent manifest error, shall be conclusive for all purposes and binding on the Holder of this Security and the Issuers. The Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all purposes of this Security, the term “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday that (i) is not a day on which banking institutions in The City of New York generally are authorized or obligated by law, regulation or executive order to close, (ii) if the Specified Currency for any payment on this Security is other than U.S. dollars or euro, is not a day on which banking institutions in the principal financial center of the country issuing such Specified Currency generally are authorized or obligated by law, regulation or executive order to close, (iii) if the Specified Currency for any payment on this Security is euro, is not a Euro Business Day and (iv) solely with respect to any payment or other action to be made or taken at any Place of Payment outside The City of New York, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in such Place of Payment generally are authorized or obligated by law, regulation or executive order to close. “Euro Business Day” means any day on which the Trans-European Automated Real-Time Gross Settlement Express (TARGET2) System, or any successor system, is open for business. With respect to any particular location, the close of business on any day on which business is not being conducted shall be deemed to mean 5:00 P.M., New York City time, on that day.
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References in this Security to U.S. dollars shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time, the coin or currency (if any) that is then legal tender for the payment of public and private debts in all EMU Countries. “EMU Countries” means, at any time, the countries (if any) then participating in the third stage of the European Economic and Monetary Union pursuant to the treaty establishing the European Community, as it may be amended from time to time.
References in this Security to a particular currency other than U.S. dollars and euro shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date.
4. Redemption at the Company’s Option
If a Redemption Commencement Date or the occurrence of a specified event giving rise to redemption is specified on the face hereof, this Security shall be redeemable at the option of the Company before the Maturity of the principal thereof. If a Redemption Commencement Date or redemption event is so specified, and unless otherwise specified on the face hereof, this Security is subject to redemption upon the notice specified on the face hereof or, if no notice period is specified, upon not less than 30 days’ nor more than 60 days’ notice, at any time and from time to time on or after the Redemption Commencement Date, in each case as a whole or in part, at the election of the Company and at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Security to be redeemed), together with accrued interest to the redemption date, but interest installments due on or prior to such redemption date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record on the relevant record dates referred to on the face hereof, all as provided in the 2016 Indenture.
5. Repayment at the Holder’s Option
Except as otherwise may be provided on the face hereof, if one or more Repayment Dates are specified on the face hereof, this Security will be repayable in whole or in part in an amount equal to any Authorized Denomination (provided that the remaining principal amount of any Security surrendered for partial repayment shall at least equal an Authorized Denomination), on any such Repayment Date, in each case at the option of the Holder and at the applicable Repayment Price specified on the face hereof (expressed as a percentage of the principal amount to be repaid), together with accrued interest to the applicable Repayment Date (but interest installments due on or prior to such Repayment Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Date as provided in the 2016 Indenture). If this Security provides for more than one Repayment Date and the Holder exercises its option to elect repayment, the Holder shall be deemed to have elected repayment on the earliest Repayment Date after all conditions to such exercise have been satisfied, and references herein to the applicable Repayment Date shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security to be repaid, the Company must receive at the applicable address of the Trustee set forth below (or at such other place or places of which the Company shall from time to time notify the Holder of this Security), on any Business Day not later than the 15th, and not earlier than the 25th, calendar day prior to the applicable Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), either (i) this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of this Security, (b) the principal amount of this Security and the amount of this Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that the Company will receive this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, not later than five Business Days after the date of such facsimile transmission or letter (provided that this Security and form duly completed and signed are received by the Company by such fifth Business Day). Any such election shall be irrevocable. The address to which such deliveries are to be made is The Bank of New York Mellon, Attention: Corporate Trust Administration, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262 (or at such other places as the Company or the Trustee shall notify the Holder of this Security). All questions as to the validity, eligibility (including time of receipt) and acceptance of any Security for repayment will be determined by the Company, whose determination will be final and binding. Notwithstanding the foregoing, (x) if this Security is a Global Security, the option of the Holder to elect repayment may be exercised in accordance with the Applicable Procedures of the Depositary for this Security at least 15 calendar days prior to the applicable Repayment Date and (y) whether or not this Security is a Global Security, the option of the Holder to elect repayment may be exercised in any such manner as the Company may approve.
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6. Transfer and Exchange
As provided in the 2016 Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuers in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the 2016 Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuers, the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to the provisions of the 2016 Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.
7. Defeasance
The 2016 Indenture contains provisions for Defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the 2016 Indenture. Unless otherwise specified on the face hereof, both of such provisions are applicable to this Security.
8. Remedies
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the 2016 Indenture.
As provided in and subject to the provisions of the 2016 Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the 2016 Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 51% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
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If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the 2016 Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the 2016 Indenture and no provision of this Security or of the 2016 Indenture shall alter or impair the obligation of the Issuers, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
9. Modification and Waiver
The 2016 Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuers and the rights of the Holders of the Securities to be affected under the 2016 Indenture at any time by the Issuers and the Trustee with the consent of the Holders of a majority in principal amount of all Securities at the time Outstanding to be affected, considered together as one class for this purpose (such Securities to be affected may be Securities of the same or different series and, with respect to any series, may comprise fewer than all the Securities of such series). The 2016 Indenture also contains provisions (i) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding to be affected under the 2016 Indenture, considered together as one class for this purpose (such affected Securities may be Securities of the same or different series and, with respect to any particular series, may comprise fewer than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with certain provisions of the 2016 Indenture and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding of any series to be affected under the 2016 Indenture (with each such series considered separately for this purpose), on behalf of the Holders of all Securities of such series, to waive certain past defaults under the 2016 Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
10. Governing Law
This Security and the 2016 Indenture shall be governed by and construed in accordance with the laws of the State of New York, but without regard to principles of conflicts of laws.
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CUSIP NO.
ORIGINAL ISSUE DATE:
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SENIOR NOTE
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Issuers to repay the Security referred to in this notice (or the portion thereof specified below) at the applicable Repayment Price, together with interest to the Repayment Date, all as provided for in such Security, to the undersigned, whose name, address and telephone number are as follows:
(please print name of the undersigned) |
(please print address of the undersigned) |
(please print telephone number of the undersigned) |
If such Security provides for more than one Repayment Date, the undersigned requests repayment on the earliest Repayment Date after the requirements for exercising this option have been satisfied, and references in this notice to the Repayment Date mean such earliest Repayment Date. Terms used in this notice that are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable address of the Trustee set forth below or at such other place or places of which the Company or the Trustee shall from time to time notify the Holder of such Security, any Business Day not later than the 15th or earlier than the 25th calendar day prior to the Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), (i) such Security, with this “Option to Elect Repayment” form duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of such Security, (b) the principal amount of such Security and the amount of such Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that such Security to be repaid with the form entitled “Option to Elect Repayment” on the addendum to the Security duly completed and signed will be received by the Company not later than five Business Days after the date of such facsimile transmission or letter (provided that such Security and form duly completed and signed are received by the Company by such fifth Business Day). The address to which such deliveries are to be made is:
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The Bank of New York Mellon
Attention: Corporate Trust Administration
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
or at such other place as the Company or the Trustee shall notify the Holder of such Security.
If less than the entire principal amount of such Security is to be repaid, specify the portion thereof (which shall equal any Authorized Denomination) that the Holder elects to have repaid:
and specify the denomination or denominations (which shall equal any Authorized Denomination) of the Security or Securities to be issued to the Holder in respect of the portion of such Security not being repaid (in the absence of any specification, one Security will be issued in respect of the portion not being repaid): |
Date: | |
Notice: The signature to this Option to Elect Repayment must correspond with the name of the Holder as written on the face of such Security in every particular without alteration or enlargement or any other change whatsoever. |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM — as tenants in common
TEN ENT — as tenants by the entireties
JT TEN — as joint tenants with the right of survivorship and not as tenants in common
UNIF GIFT MIN ACT – | ________Custodian________ | |
(Cust) (Minor) |
under Uniform Gifts to Minors | ||
Act | ||
(State) | ||
Additional abbreviations may also be used though not in the above list. |
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please Print or Typewrite Name and Address Including Postal Zip Code of Assignee)
the attached Security and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer said Security on the books of the Issuers, with full power of substitution in the premises.
Date:
Signature Guaranteed: |
NOTICE: The signature to this assignment must correspond with the name of the Holder as written upon the face of the attached Security in every particular, without alteration or enlargement or any change whatever. |
NOTICE: Signature must be guaranteed. |
17
Exhibit 4.9
[FORM OF FLOATING RATE MEDIUM-TERM SENIOR NOTE]
(Face of Security)
[IF A GLOBAL SECURITY, INSERT — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE 2016 INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE 2016 INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO JEFFERIES GROUP, LLC, JEFFERIES GROUP CAPITAL FINANCE INC., OR THEIR 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 TO 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]
[INSERT ANY LEGEND REQUIRED BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT AND THE REGULATIONS THEREUNDER.]
THIS SECURITY IS NOT A BANK DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY, NOR IS IT AN OBLIGATION OF, OR GUARANTEED BY, A BANK.
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CUSIP No.
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM
SENIOR NOTES
(Floating Rate)
The following terms apply to this Security, as and to the extent shown below:
PRINCIPAL AMOUNT: | ORIGINAL ISSUE DATE*: | STATED MATURITY DATE: |
ORIGINAL ISSUE DISCOUNT SECURITY: | ||
Total Amount of OID: | ||
Yield to Maturity: | ||
Initial Accrual Period OID: |
BASE RATE: | TRADE DATE: | INTEREST PAYMENT DATE(S): , subject to the provisions under “Payments Due on a Business Day” below. |
CMS Rate: | ||
CMT Rate: | ||
Designated CMT Reuters Screen Page: | ||
Designated CMT Index Maturity: | ||
Compounded SOFR: | ||
Federal Funds Rate: | ||
Prime Rate: | ||
Treasury Rate: |
* | [This date shall be the issue date of this Security, unless there is a Predecessor Security, in which case this date shall be the issue date of the first Predecessor security.] |
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INITIAL BASE RATE: | MAXIMUM RATE: | INTEREST RESET PERIOD: |
INDEX MATURITY: | MINIMUM RATE: | INTEREST RESET DATE(S): , subject to the second paragraph under “Payments Due on a Business Day” below. |
SPREAD: | REDEMPTION COMMENCEMENT DATE: | INTEREST DETERMINATION DATE(S): as provided for the applicable Base Rate in Sections 3(b) through 3(g), as applicable, on the reverse of this Security (unless otherwise specified), subject to the second paragraph under “Payments Due on a Business Day” below. |
SPREAD MULTIPLIER: | REPAYMENT DATE(S): | CALCULATION AGENT: |
RATE CUT-OFF DATE: | REDEMPTION OR REPAYMENT PRICE(S): | SPECIFIED CURRENCY: U.S. dollars for all payments unless otherwise specified below: |
payments of principal and any premium: | ||
payments of interest: | ||
Exchange Rate Agent: | ||
DEFEASANCE: | ||
Full Defeasance: | ||
Covenant Defeasance: | ||
DAY COUNT CONVENTION: | ||
BUSINESS DAY CONVENTION: | ||
OTHER TERMS |
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Terms left blank or marked “N/A”, “No”, “None” or in a similar manner do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to this Security have the meanings specified above, unless the context requires otherwise. Other terms used in this Security that are not defined herein but that are defined in the 2016 Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
Jefferies Group LLC, a limited liability company existing under the laws of the State of Delaware (hereinafter called the “Company”, which term includes any successor Person under the 2016 Indenture) and Jefferies Group Capital Finance Inc., a corporation existing under the laws of the State of Delaware (hereinafter called the “Co-Issuer”, which term includes any successor Person under the 2016 Indenture, and the Company and Co-Issuer, collectively, the “Issuers”), for value received as joint and several obligors, hereby promise to pay to, or registered assigns, as principal the Principal Amount on the Stated Maturity Date and to pay interest thereon, from the Original Issue Date or from the most recent Interest Payment Date to which interest has been paid or made available for payment, on the Interest Payment Date(s) in each year, commencing on the first such date specified on the face of this Security, and at the Maturity of the principal hereof, at a rate per annum determined in accordance with the applicable provisions of Section 3 on the reverse hereof, until the principal hereof is paid or made available for payment. Any premium and any such installment of interest that is overdue at any time shall also bear interest (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum at which the principal then bears interest, from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date will, as provided in the 2016 Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the [if Global Security, insert — calendar day (whether or not a Business Day (as defined in Section 3(l) on the reverse hereof))] [if not a Global Security, insert alternative provision acceptable to Trustee and Registrar] immediately preceding the day on which payment is to be made (as such payment date may be adjusted in accordance with the Business Day Convention specified on the face hereof and the second paragraph under “Payments Due on a Business Day” below) (a “Regular Record Date”). Any interest so payable, but not punctually paid or made available for payment, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof being given to the Holder of this Security not less than 10 days prior to such Special Record Date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the 2016 Indenture. For the purpose of determining the Holder at the close of business on any relevant record date when business is not being conducted, the close of business will mean 5:00 P.M., New York City time, on that day.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this Security will be made in the Specified Currency for such payment, except as provided in this and the next three paragraphs. The Specified Currency for any payment shall be the currency specified as such on the face of this Security unless, at the time of such payment, such currency is not legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date, in which case the Specified Currency for such payment shall be such coin or currency as at the time of such payment is legal tender for the payment of public and private debts in such country, except as provided in the next sentence. If the euro is specified on the face of this Security as the Specified Currency for any payment, the Specified Currency for such payment shall be such coin or currency as at the time of payment is legal tender for the payment of public and private debts in all EMU Countries (as defined in Section 3(l) on the reverse hereof), provided that if on any day there are not at least two EMU Countries, or if on any day there are at least two EMU Countries but no coin or currency is legal tender for the payment of public and private debts in all EMU Countries, then the Specified Currency for such payment shall be deemed not to be available to the Issuers on such day.
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Except as provided in the next paragraph, any payment to be made on this Security in a Specified Currency other than U.S. dollars will be made in U.S. dollars if the Person entitled to receive such payment transmits a written request for such payment to be made in U.S. dollars to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the payment is to be made. Such written request may be mailed, hand delivered, telecopied or delivered in any other manner approved by the Trustee. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the immediately preceding paragraph will be determined by the Exchange Rate Agent based upon the highest bid quotation received by the Exchange Rate Agent as of approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date, from three (or, if three are not available, then two) recognized foreign exchange dealers selected by the Exchange Rate Agent in The City of New York, in each case for the purchase by the quoting dealer, for U.S. dollars and for settlement on such payment date of an amount of such Specified Currency for such payment equal to the aggregate amount of such Specified Currency payable on such payment date to all Holders of this Security who elect to receive U.S. dollar payments on such payment date, and at which the applicable dealer commits to execute a contract. If the Exchange Rate Agent determines that two such bid quotations are not available on such second Business Day, such payment will be made in the Specified Currency for such payment. All currency exchange costs associated with any payment in U.S. dollars on this Security will be borne by the Holder entitled to receive such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is payable on any day (including at Maturity) in a Specified Currency other than U.S. dollars, and if such Specified Currency is not available to the Company on the two Business Days before such day, due to the imposition of exchange controls, disruption in a currency market or any other circumstances beyond the control of the Issuers, the Issuers will be entitled to satisfy their obligation to pay such amount in such Specified Currency by making such payment in U.S. dollars. The amount of such payment in U.S. dollars shall be determined by the Exchange Rate Agent on the basis of an exchange rate for such Specified Currency published at approximately 12:00 noon, New York City time, by a generally recognized and publicly available source, to be determined in the sole discretion of the Exchange Rate Agent, on the latest day before the day on which such payment is to be made (the “Exchange Rate”). Any payment made under such circumstances in U.S. dollars where the required payment is in other than U.S. dollars will not constitute an Event of Default under the 2016 Indenture or this Security.
Manner of Payment — U.S. Dollars
Except as provided in the next paragraph, payment of any amount payable on this Security in U.S. dollars will be made at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender (in the manner provided below) of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that, at the option of the Issuers and subject to the next paragraph, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of this Security is at least $1,000,000 (or the equivalent in another currency) and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
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Manner of Payment — Other Specified Currencies
Payment of any amount payable on this Security in a Specified Currency other than U.S. dollars will be made by wire transfer of immediately available funds to such account as is maintained in such Specified Currency at a bank or other financial institution acceptable to the Issuers and the Trustee and as shall have been designated at least five Business Days prior to the applicable payment date by the Person entitled to receive such payment; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Such account designation shall be made by transmitting the appropriate information to the Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier or in any other manner approved by the Trustee. Unless revoked, any such account designation made with respect to this Security by the Holder hereof will remain in effect with respect to any further payments with respect to this Security payable to such Holder. If a payment in a Specified Currency other than U.S. dollars with respect to this Security cannot be made by wire transfer because the required account designation has not been received by the Trustee on or before the requisite date or for any other reason, the Issuers will cause a notice to be given to the Holder of this Security at its registered address requesting an account designation pursuant to which such wire transfer can be made and such payment will be made within five Business Days after the Trustee’s receipt of such a designation meeting the requirements specified above, with the same force and effect as if made on the due date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
Manner of Payment — Global Securities
Notwithstanding any provision of this Security or the 2016 Indenture, if this Security is a Global Security, the Issuers may make any and all payments of principal, premium and interest on this Security pursuant to the Applicable Procedures of the Depositary for this Security as permitted in the 2016 Indenture.
Payments Due on a Business Day
Notwithstanding any provision of this Security or the 2016 Indenture, if the Maturity of the principal hereof occurs on a day that is not a Business Day, any amount of principal, premium or interest that would otherwise be due on this Security on such day (the “Specified Day”) may be paid or made available for payment on the Business Day that is next succeeding the Specified Day with the same force and effect as if such amount were paid on the Specified Day, and no interest will accrue on the amount so payable for the period from the Specified Day to such next succeeding Business Day.
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As specified on the face of this Security, one of the following Business Day Conventions shall apply to any Interest Period, Interest Reset Date or Interest Payment Date other than one that falls on the date of Maturity of the principal hereof. If any such date would otherwise fall on a day that is not a Business Day:
(i) if the Business Day Convention specified on the face hereof is “Following”, then such date shall be postponed to the next day that is a Business Day;
(ii) if the Business Day Convention specified on the face hereof is “Modified Following”, then such date shall be postponed to the next day that is a Business Day; provided that if such next succeeding Business Day falls in the next calendar month, then such date shall be advanced to the immediately preceding Business Day;
(iii) if the Business Day Convention specified on the face hereof is “Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that Interest Reset Dates and Interest Periods shall not be adjusted for non-Business Days; and
(iv) if the Business Day Convention specified on the face hereof is “Modified Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that, if such next succeeding Business Day would fall in the next succeeding calendar month, the date of payment with respect to such Interest Payment Date shall be advanced to the Business Day immediately preceding such Interest Payment Date; and provided further that Interest Reset Dates and Interest Periods shall not be adjusted for non-Business Days.
The provisions of the two immediately preceding paragraphs shall apply to this Security in lieu of the provisions of Section 1.13 of the 2016 Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the 2016 Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuers have each caused this instrument to be duly executed.
Dated:
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
This is one of the Securities of the series designated herein and referred to in the 2016 Indenture.
Dated:
THE BANK OF NEW YORK MELLON, | ||
as Trustee | ||
By: | ||
Authorized Signatory |
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(Reverse of Security)
1. | Securities and Indenture |
This Security is one of a duly authorized issue of securities of the Issuers (herein called the “Securities”) issued and to be issued in one or more series under a Senior Debt Indenture, dated as of May 26, 2016 (herein called the “2016 Indenture”, which term shall have the meaning assigned to it in such instrument), among each of the Issuers and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the 2016 Indenture), and reference is hereby made to the 2016 Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuers, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
2. | Series and Denominations |
This Security is one of the series of Securities designated on the face hereof, limited to an aggregate principal amount (or the equivalent thereof in any other currency or currencies or currency units) as shall be determined and may be increased from time to time by the Issuers. References herein to “this series” mean the series of Securities designated as Medium-Term Notes.
The Securities of this series are issuable only in registered form without coupons in “Authorized Denominations”, which term shall have the following meaning. For each Security of this series having a principal amount payable in U.S. dollars, the Authorized Denominations shall be $1,000 and integral multiples of $1,000 in excess thereof and for each Security of this series having a principal amount payable in a Specified Currency other than U.S. dollars, the Authorized Denominations shall be the amount of such Specified Currency equivalent, at the Exchange Rate on the first Business Day preceding the date on which the Company accepts the offer to purchase such Security, to $1,000 or any integral multiples of $1,000 in excess thereof.
3. | Interest Rate |
(a) Interest Rate Reset. The interest rate on this Security (other than if the Base Rate is Compounded SOFR) will be reset from time to time as provided in this Section 3, and each date upon which such rate is reset as so provided is hereinafter called an “Interest Reset Date”. The Interest Reset Dates with respect to this Security will be as specified on the face hereof; provided, however, that (x) the Base Rate in effect from and including the Original Issue Date to but excluding the initial Interest Reset Date will be the Initial Base Rate and (y) any Interest Reset Date shall be subject to adjustment if and as provided in the second paragraph under the heading “Payments Due on a Business Day” on the face of this Security.
Subject to applicable provisions of law and except as otherwise specified herein, on each Interest Reset Date the interest rate on this Security shall be the rate determined in accordance with such of the following Sections 3(b) through 3(g) (below) as are applicable, in whole or in part, and as provide for determination of the Base Rate for this Security, as adjusted by the addition or subtraction of the Spread, if any, or by multiplying such Base Rate by the Spread Multiplier, if any, and subject to adjustment as provided in Section 3(h) below. The Calculation Agent shall determine the interest rate of this Security in accordance with the applicable Section below.
The Calculation Agent will determine the interest rate on this Security that takes effect on any Interest Reset Date:
(i) if the Base Rate is the Treasury Rate, on the Interest Reset Date, or in the circumstances described in Section 3(g) below, a day no later than the applicable Calculation Date (as defined in Section 3(j) below);
(ii) if the Base Rate is the Federal Funds Rate or Prime Rate, on the applicable Interest Reset Date; and
(iii) if the Base Rate is CMS Rate or CMT Rate, on the applicable CMS Interest Determination Date or CMT Interest Determination Date (each as defined, respectively, in Section 3(b) and (c) below), as the case may be, corresponding to such Interest Reset Date.
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However, the Calculation Agent need not wait until the Calculation Date to determine interest rates described in clause (i) above if the rate information it needs to make such determination in the manner specified in the applicable provisions of Section 3(g) hereof is available from the relevant sources specified in such applicable provisions. Upon request of the Holder to the Calculation Agent, the Calculation Agent will provide the interest rate then in effect on this Security and, if determined, the interest rate that will become effective on the next Interest Reset Date.
(b) Determination of CMS Rate. If the Base Rate specified on the face hereof is the CMS Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the rate appearing on the Reuters Screen ICESWAP1 Page for U.S. dollar swaps having a maturity equal to the Index Maturity specified on the face hereof as of approximately 11:00 A.M., New York City time on the second U.S. Government Securities Business Day immediately preceding such Interest Reset Date (the “CMS Interest Determination Date”).
If the Calculation Agent determines on a CMS Interest Determination Date that the CMS Rate has been discontinued, then the Calculation Agent will use a substitute or successor rate for such discontinued rate that it has determined in its sole discretion is most comparable to the CMS Rate, provided that if the Calculation Agent determines there is an industry-accepted successor rate for such discontinued rate, then the Calculation Agent shall use such successor rate. If the Calculation Agent has determined a substitute or successor rate in accordance with the foregoing, the Calculation Agent in its sole discretion may determine the Business Day Convention, the applicable Business Days and the CMS Interest Determination Date to be used, and any other relevant methodology for calculating such substitute or successor rate, including any adjustment needed to make such substitute or successor rate comparable to the CMS Rate, in a manner that is consistent with any industry-accepted practices for such substitute or successor rate.
Unless the Calculation Agent uses a substitute or successor rate as so provided, if the CMS Rate cannot be determined in the manner described above, then the CMS Rate for that CMS Interest Determination Date will be determined by the Calculation Agent, after consulting such sources as it deems comparable to the foregoing display page, or any other source it deems reasonable, in its sole discretion.
(c) Determination of CMT Rate. If the Base Rate specified on the face hereof is the CMT Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the CMT Rate determined as described below. “CMT Rate” means:
(i) If the Designated CMT Reuters Screen Page is the Reuters Screen FRBCMT Page, then the CMT Rate for such Interest Reset Date will be the yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as set forth in H.15 under the caption “U.S. government securities/Treasury constant maturities”, as such yield is displayed on the Designated CMT Reuters Screen Page on the second U.S. Government Securities Business Day immediately preceding such Interest Reset Date (the “CMT Interest Determination Date”).
(A) | If the applicable rate described in clause (i) above is not displayed on the Designated CMT Reuters Screen Page, then the CMT Rate will be the rate for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as published in H.15 under the caption “U.S. government securities/Treasury constant maturities”. |
(B) | If the applicable rate described in clause (A) above does not appear in H.15, then the CMT Rate for such Interest Reset Date will be the Treasury constant maturity rate, for the Designated CMT Index Maturity that: |
a. | is published by the Board of Governors of the Federal Reserve System, or the U.S. Department of the Treasury, and |
b. | is determined by the Calculation Agent to be comparable to the applicable rate that would have otherwise been published in H.15. |
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(C) | If, on the CMT Interest Determination Date, the Board of Governors of the Federal Reserve System or the U.S. Department of the Treasury does not publish a yield on Treasury securities at “constant maturity” for the Designated CMT Index Maturity, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market bid rates for the most recently issued Treasury securities having an original maturity of approximately the Designated CMT Index Maturity, having a remaining term to maturity of not less than the Designated CMT Index Maturity minus one year and in a Representative Amount: as of approximately 3:30 P.M., New York City time, on such CMT Interest Determination Date, quoted by three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two such bid rates are provided, the CMT Rate will be based on the arithmetic mean of the bid prices provided, and neither the highest nor lowest of such quotations will be eliminated. |
(D) | If the Calculation Agent is unable to obtain three quotations of the kind described in clause (C) above, the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market offered rates for Treasury securities having an original maturity longer than the Designated CMT Index Maturity, having a remaining term to maturity closest to the Designated CMT Index Maturity and in a Representative Amount, as of approximately 3:30 p.m., New York City time, on such CMT Interest Determination Date, of three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two of these primary dealers are quoting, then the CMT Rate for such Interest Reset Date will be based on the arithmetic mean of the bid rates so obtained, and neither the highest nor the lowest of such quotations will be disregarded. If two Treasury securities with an original maturity longer than the CMT Designated Index Maturity have remaining terms to maturity that are equally close to the Designated CMT Index Maturity, the Calculation Agent will obtain quotations for the Treasury securities with the shorter original term to maturity. |
(E) | If two or fewer primary dealers selected by the Calculation Agent are quoting as described in clause (D) above, then the CMT Rate for such Interest Reset Date shall be determined by the Calculation Agent in its sole discretion, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate the rate for Treasury securities at “constant maturity” or any of the foregoing bid rates. |
(ii) if the Designated CMT Reuters Screen Page is the Reuters Screen FEDCMT Page, the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as set forth in H.15 opposite the heading “U.S. government securities/Treasury constant maturities” for the week preceding such Interest Reset Date, as such average is displayed on the Designated CMT Reuters Screen Page for the week preceding such Interest Reset Date.
(A) | If the applicable average described in clause (ii) above is not displayed on the Designated CMT Reuters Screen Page, then the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity and for the week preceding such Interest Reset Date as published in H.15 opposite the heading “U.S. government securities/Treasury constant maturities”. |
(B) | If the applicable average described in clause (A) above does not appear on the Designated Reuters Screen Page or in H.15, then the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period equal to the Designated CMT Index Maturity as otherwise announced by the Federal Reserve Bank of New York for the week preceding such Interest Reset Date. |
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(C) | If the Federal Reserve Bank of New York does not publish a one-week average yield for Treasury securities at “constant maturity” for a period equal to the Designated CMT Index Maturity for the week prior to such Interest Reset Date, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market bid rates for the most recently issued Treasury securities having an original maturity of approximately the Designated CMT Index Maturity, having a remaining term to maturity of not less than the Designated CMT Index Maturity minus one year and in a Representative Amount: as of approximately 3:30 P.M., New York City time, on the CMT Interest Determination Date, quoted by three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting these bid rates, the Calculation Agent will request quotations from five primary dealers and will disregard the highest quotation or, if there is equality, one of the highest, and the lowest quotation or, if there is equality, one of the lowest. If fewer than five but more than two such bid rates are provided, the CMT Rate will be based on the arithmetic mean of the bid prices provided, and neither the highest nor lowest of such quotations will be eliminated. |
(D) | If the Calculation Agent is unable to obtain three quotations of the kind described in clause (C) above, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market offered rates for Treasury securities having an original maturity longer than the Designated CMT Index Maturity, having a remaining term to maturity closest to the Designated CMT Index Maturity and in a Representative Amount, as of approximately 3:30 p.m., New York City time, on CMT Interest Determination Date, of three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two of these primary dealers are quoting, then the CMT Rate for such Interest Reset Date will be based on the arithmetic mean of the bid rates so obtained, and neither the highest nor the lowest of such quotations will be disregarded. If two Treasury securities with an original maturity longer than the CMT Designated Index Maturity have remaining terms to maturity that are equally close to the Designated CMT Index Maturity, the Calculation Agent will obtain quotations for the Treasury securities with the shorter original term to maturity. |
(E) | If two or fewer primary dealers selected by the Calculation Agent are quoting as described in clause (D) above, the CMT Rate for such Interest Reset Date shall be the rate determined by the Calculation Agent in its sole discretion, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate the one-week average for Treasury securities at “constant maturity” or any of the foregoing bid rates. |
(d) Determination of Compounded SOFR. If the Base Rate specified on the face hereof is Compounded SOFR, Compounded SOFR with respect to an Interest Period will be calculated as follows:
“Compounded SOFR” means the result of the following formula:
where:
“d0”, for any Interest Period, is the number of U.S. Government Securities Business Days in the relevant Interest Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Interest Period.
“SOFRi”, for any day “i” in the relevant Interest Period, is a reference rate equal to SOFR in respect of that day.
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“ni”, for any day “i” in the relevant Interest Period, is the number of calendar days from, and including, such U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day.
“d” is the number of calendar days in the relevant Interest Period.
“SOFR” means, with respect to any day, the rate determined by the Calculation Agent in accordance with the following provisions:
(1) | the Secured Overnight Financing Rate for trades made on such day that appears at approximately 3:00 p.m. (New York City time) on the NY Federal Reserve’s Website on the U.S. Government Securities Business Day immediately following such U.S. Government Securities Business Day; or |
(2) | if the rate specified in (1) above does not so appear, unless a Benchmark Transition Event and its related Benchmark Replacement Date have occurred as described in (3) below, the Secured Overnight Financing Rate published on the NY Federal Reserve’s Website for the first preceding U.S. Government Securities Business Day for which the Secured Overnight Financing Rate was published on the NY Federal Reserve’s Website; or |
(3) | if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the relevant Interest Payment Date for such Interest Period, the Calculation Agent will use the Benchmark Replacement to determine the rate and for all other purposes relating to the Security. |
In connection with the SOFR definition above, the following definitions apply:
“Benchmark” means, initially, SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; or |
(2) | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
(3) | the sum of: (a) the alternate rate of interest that has been selected by the Calculation Agent as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) | the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
(2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
(3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Calculation Agent giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time. |
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“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes that the Calculation Agent decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Calculation Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Calculation Agent determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Calculation Agent determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
(2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; |
(2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
(3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“ISDA” means the International Swaps and Derivatives Association, Inc. or any successor thereto.
“ISDA Definitions” means the 2006 ISDA Definitions published by ISDA, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
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“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“NY Federal Reserve” means the Federal Reserve Bank of New York.
“NY Federal Reserve’s Website” means the website of the NY Federal Reserve, currently at http://www.newyorkfed.org, or any successor website of the NY Federal Reserve or the website of any successor administrator of the Secured Overnight Financing Rate.
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Calculation Agent in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NY Federal Reserve, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NY Federal Reserve or any successor thereto.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Neither the Trustee nor the Paying Agent will have any liability for any determination made by the Calculation Agent in connection with a Benchmark Transition Event or a Benchmark Replacement.
In no event shall the Trustee or the Paying Agent be responsible for determining if a Benchmark Transition Event has occurred or any substitute for SOFR, or for making any adjustments to any alternative benchmark or spread thereon, the business day convention, interest determination dates or any other relevant methodology for calculating any such substitute or successor benchmark. In connection with the foregoing, the Trustee and the Paying Agent will be entitled to conclusively rely on any determinations made by the Calculation Agent.
(e) Determination of Federal Funds Rate. If the Base Rate specified on the face hereof is the Federal Funds Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate equal to the rate, on such Interest Reset Date, as set forth in H.15 opposite the heading “Federal funds (effective)”, as that rate is displayed on the Reuters Screen FEDFUNDS1 Page for that day. If the Federal Funds Rate cannot be determined as described above, the following procedures will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on the Reuters Screen FEDFUNDS1 Page by approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, the Federal Funds Rate for such Interest Reset Date will be the rate published on H.15 under the heading “Federal funds (effective)”, or another recognized electronic source used for the purpose of displaying that rate.
(ii) If the rate is not displayed on the Reuters Screen FEDFUNDS1 Page and does not appear in H.15 at approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, then the Federal Funds (Effective) Rate for such Interest Reset Date will be the rate for the first day preceding such Interest Reset Date for which such rate is set forth in H.15 opposite the caption “Federal funds (effective)”, as such rate is displayed on the Reuters Screen FEDFUNDS1 Page.
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(f) Determination of Prime Rate. If the Base Rate specified on the face hereof is the Prime Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate equal to the rate for such Interest Reset Date published in H.15, or another electronic source used for displaying that rate, opposite the heading “Bank prime loan”. If the Prime Rate cannot be determined as described above, the following procedures will apply in determining the Prime Rate:
(i) If the rate described above does not appear in H.15 or another recognized electronic source by approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, then the Prime Rate will be the rate for the day first preceding such Interest Reset Date for which such rate is set forth in H.15 opposite the caption “Bank prime rate”.
(g) Determination of Treasury Rate. If the Base Rate specified on the face hereof is the Treasury Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate determined as specified in the applicable Pricing Supplement or, if no method of determination is so specified, the rate on such Interest Reset Date (if direct obligations of the United States (“Treasury Bills”) have been auctioned on such day), as that rate appears on the Reuters Screen USAUCTION10 Page or the Reuters Screen USAUCTION11 Page opposite the Index Maturity under the heading “INVEST RATE”. If the Treasury Rate cannot be determined as described above, the following procedures will apply in determining the Treasury Rate:
(i) If the rate described above does not appear on either the Reuters Screen USAUCTION10 or USAUCTION11 Page on the Calculation Date (unless the calculation is made earlier and the rate is available from that source at that time), but Treasury Bills having the Index Maturity have been auctioned during the relevant Interest Period, then the Treasury Rate will be the Bond Equivalent Yield (as defined in Section 3(j) below) of the rate, for such Interest Reset Date, as published in H.15 or another recognized electronic source used for displaying that rate, for that day and for the Index Maturity, under a heading indicating that such rate is the “auction high” rate for Treasury Bills.
(ii) If the rate cannot be determined as described in clause (i) above, then the Treasury Rate will be the Bond Equivalent Yield of the auction rate for Treasury Bills with a remaining maturity equal to the Index Maturity as announced by the United States Treasury.
(iii) If no such auction is held for any period of seven consecutive calendar days ending on, and including, any Friday and an Interest Reset Date occurred during such period, then the Treasury Rate for such Interest Reset Date will be the Bond Equivalent Yield of the rate for the date on which such auction would have been ordinarily been held in accordance with the usual practices of the United Stated Treasury of the rate set forth in H.15, or another recognized electronic source used for displaying that rate, under the heading “U.S. government securities/Treasury bills (secondary market)”.
(iv) If the rate described in clause (iii) above does not appear in H.15 or another recognized electronic source on such Calculation Date (unless the calculation is made earlier and the rate is available from that source at that time), the Treasury Rate will be the Bond Equivalent Yield of the arithmetic mean of the following secondary market bid rates for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity: the rates bid as of approximately 3:30 P.M., New York City time, on such Interest Reset Date, by primary U.S. government securities dealers in New York City selected by the Calculation Agent.
(v) If no quotation is provided as described in the preceding paragraph, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing secondary market bids or any display page or other U.S. government publication or source, or any other source as it deems reasonable from which to estimate the Treasury Bills auction rate or any of the foregoing secondary market bid rates, shall determine the Treasury Rate for such Interest Reset Date in its sole discretion.
(h) Maximum Limits. Notwithstanding the foregoing, the rate at which interest accrues on this Security (i) shall not at any time be higher than the Maximum Rate, if any, or less than the Minimum Rate, if any, specified on the face hereof, in each case on an accrual basis, and (ii) shall not at any time be higher than the Maximum Rate permitted by New York law, as the same may be modified by United States law of general application.
(i) Calculation of Interest. Payments of interest hereon with respect to any Interest Payment Date or at the Maturity of the principal hereof will include interest accrued to but excluding the next date to which interest will accrue (which may be the Interest Payment Date depending on the Business Day Convention) or the date of such maturity, as the case may be.
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With respect to this Security (unless the Base Rate is Compounded SOFR), accrued interest from the date of issue or from the last date to which interest has accrued shall be calculated by the Calculation Agent by multiplying the principal amount by an accrued interest factor for the Interest Period. Such accrued interest factor shall be expressed as a decimal and computed by multiplying the interest rate for such Interest Period (also expressed as a decimal) by the Day Count Convention specified on the face hereof for such Interest Period.
With respect to this Security if the Base Rate is Compounded SOFR, accrued interest from the date of issue or from the last date to which interest has accrued shall be calculated by the Calculation Agent by multiplying the principal amount by the sum of the Interest Factors calculated for each day during such Interest Period. The “Interest Factor” for each such day will be computed by dividing the interest rate applicable to that day by 360. The interest rate applicable to each such day will be determined according to Section 3(d) above.
All percentages resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or.09876541) being rounded down to 9.87654% (or.0987654) and 9.876545% (or.09876545) being rounded up to 9.87655% (or.0987655)). All amounts used in or resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.
(j) Definitions of Calculation Terms. As used in this Security, the following terms have the meanings set forth below:
“Bond Equivalent Yield” means a yield expressed as a percentage and calculated in accordance with the following formula:
where
● | “D” equals the annual rate for Treasury Bills quoted on a bank discount basis and expressed as a decimal; |
● | “N” equals 365 or 366, as the case may be; and |
● | “M” equals the actual number of days in the applicable Interest Reset Period. |
The “Calculation Date” means the Business Day immediately preceding the date on which interest will next be paid on this Security.
“H.15” means statistical release of H.15, available through the website of the Board of Governors of the Federal Reserve System, at http://www.federalreserve.gov/releases/h15, or any successor site or publication.
“Interest Period” means, with respect to a Security other than where the Base Rate is Compounded SOFR, the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), to but excluding the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof). With respect to a Security where the Base Rate is Compounded SOFR, “Interest Period” means the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof) to, but excluding, the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), provided that Compounded SOFR for each calendar day from, and including, the Rate Cut-Off Date for each Interest Period to, but excluding, the Interest Payment Date for such Interest Period will equal SOFR in respect of the Rate Cut-Off Date. The Rate Cut-Off Date for each Interest Period is as specified on the face hereof.
“Representative Amount” means an amount that, in the Calculation Agent’s judgment, is representative of a single transaction in the relevant market at the relevant time.
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“Reuters Screen” means the display on the Reuters 3000 Xtra service or any successor or replacement service, on the page or pages, or any successor or replacement page or pages on that service.
(k) Calculation Agent and Exchange Rate Agent. The Issuers have initially appointed the institutions named on the face of this Security as Calculation Agent and Exchange Rate Agent, respectively, to act as such agents with respect to this Security, but the Issuers may, in their sole discretion, appoint any other institution (including any Affiliate of the Issuers) to serve as any such agent from time to time. The Issuers will give the Trustee prompt written notice of any change in any such appointment. Insofar as this Security provides for any such agent to obtain rates, quotes or other data from a bank, dealer or other institution for use in making any determination hereunder, such agent may do so from any institution or institutions of the kind contemplated hereby notwithstanding that any one or more of such institutions are any such agent, Affiliates of any such agent or Affiliates of the Issuers.
All determinations made by the Calculation Agent or the Exchange Rate Agent may be made by such agent in its sole discretion and, absent manifest error, shall be conclusive for all purposes and binding on the Holder of this Security and the Issuers. Neither the Calculation Agent nor the Exchange Rate Agent shall have any liability therefor.
(l) Other Definitions.
“Business Day” means, for this Security, a day that meets the requirements set forth in each of clauses (i) through (iii) below, in each case to the extent such requirements apply to this Security as specified below:
(i) is a New York Business Day (as defined below);
(ii) if the Specified Currency for payment of principal of or interest on this Security is other than U.S. dollars or euro, is also a day on which banking institutions are not authorized or obligated by law, regulation or executive order to close in the principal financial center of the country issuing the Specified Currency;
(iii) if the Specified Currency for payment of principal of or interest on this Security is euro, is also a Euro Business Day; and
(iv) solely with respect to any payment or other action to be made or taken at any Place of Payment outside The City of New York, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in such Place of Payment generally are authorized or obligated by law, regulation or executive order to close.
“Day Count Convention” means:
(v) if “1/1 (ISDA)”, 1;
(vi) if “Actual/Actual (ISDA)” or “Act/Act (ISDA)”, the actual number of days in the Interest Period divided by 365 (or, if any portion of that Interest Period falls in a leap year, the sum of (1) the actual number of days in that portion of the Interest Period falling in a leap year divided by 366 and (2) the number of days in that portion of the Interest Period falling in a non-leap year divided by 365);
(vii) if “Actual/Actual (ICMA)”, the number of days in the Interest Period, including February 29 in a leap year, divided by the product of (1) the actual number of days in such Interest Period and (2) the number of Interest Periods in the calendar year;
(viii) if “Actual/Actual (Bond)”, the number of calendar days in the Interest Period, divided by the number of calendar days in the Interest Period multiplied by the number of Interest Periods in the calendar year;
(ix) if “Actual/Actual (Euro)”, the number of calendar days in the Interest Period divided by 365 or, if the Interest Period includes February 29, 366;
(x) if “Actual/365 (Fixed)”, “Act/365 (Fixed)”, “A/365 (Fixed)” or “A365F”, the actual number of days in the Interest Period divided by 365;
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(xi) if “Actual/360 (ISDA)”, “Act/360 (ISDA)” or “A/360 (ISDA)”, the actual number of days in the Interest Period divided by 360;
(xii) if “Actual/360 (ICMA)”, the number of calendar days in the period, including February 29 in a leap year, divided by 360 days;
(xiii) if “30/360”, the calculation shall be made assuming a 360-day year of 12 30-day months;
(xiv) if “30/360 (ISDA)”, “360/360 (ISDA)” or “Bond Basis (ISDA)”, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless such number would be 31, in which case D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless such number would be 31 and D1 is greater than 29, in which case D2 will be 30; and |
(xv) if “30E/360”, “30E/360 (ISDA)” or “Eurobond Basis”, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is the last day of February, in which cases D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is also the last day of February and not the maturity date, in which cases D2 will be 30. |
“EMU Countries” means, at any time, the countries (if any) then participating in the third stage of the European Economic and Monetary Union pursuant to the treaty establishing the European Community, as it may be amended from time to time.
“Euro Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System, or any successor system, is open for business.
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“New York Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City generally are authorized or obligated by law, regulation or executive order to close.
“New York City Banking Day” means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in New York City.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income department of its members be closed for the entire day for purposes of trading in U.S. government securities.
References in this Security to U.S. dollars shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time, the coin or currency (if any) that is then legal tender for the payment of public and private debts in all EMU Countries.
References in this Security to a particular currency other than U.S. dollars and euro shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date.
(m) Sources and Corrections. References herein to a Base Rate as set forth on a display page, other published source, information vendor or other vendor officially designated by the sponsor of that rate, if there is a successor source for the display page, other published source, information vendor or other official vendor, include that successor source as applicable as determined by the Calculation Agent. References herein to a particular heading or headings on any such sources, include any successor or replacement heading or headings as determined by the Calculation Agent.
If the Base Rate is based on information obtained from a Reuters Screen, such rate will be subject to the corrections, if any, published on such Reuter’s Screen within one hour of the time such information was first displayed on such source. If the Base Rate is based on information obtained from H.15, such rate will be subject to the corrections, if any, published by that source within 30 days of the day such rate was first published in that source.
4. | Redemption at the Company’s Option |
If a Redemption Commencement Date or the occurrence of a specified event giving rise to redemption is specified on the face hereof, this Security shall be redeemable at the option of the Company before the Maturity of the principal thereof. If a Redemption Commencement Date or redemption event is so specified, and unless otherwise specified on the face hereof, this Security is subject to redemption upon the notice specified on the face hereof or, if no notice period is specified, upon not less than 30 days’ nor more than 60 days’ notice, at any time and from time to time on or after the Redemption Commencement Date, in each case as a whole or in part, at the election of the Company and at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Security to be redeemed), together with accrued interest to the redemption date, but interest installments due on or prior to such redemption date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record on the relevant record dates referred to on the face hereof, all as provided in the 2016 Indenture.
5. | Repayment at the Holder’s Option |
Except as otherwise may be provided on the face hereof, if one or more Repayment Dates are specified on the face hereof, this Security will be repayable in whole or in part in an amount equal to any Authorized Denomination (provided that the remaining principal amount of any Security surrendered for partial repayment shall at least equal an Authorized Denomination), on any such Repayment Date, in each case at the option of the Holder and at the applicable Repayment Price specified on the face hereof (expressed as a percentage of the principal amount to be repaid), together with accrued interest to the applicable Repayment Date (but interest installments due on or prior to such Repayment Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Date as provided in the 2016 Indenture). If this Security provides for more than one Repayment Date and the Holder exercises its option to elect repayment, the Holder shall be deemed to have elected repayment on the earliest Repayment Date after all conditions to such exercise have been satisfied, and references herein to the applicable Repayment Date shall mean such earliest Repayment Date.
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In order for the exercise of such option to be effective and this Security to be repaid, the Company must receive at the applicable address of the Trustee set forth below (or at such other place or places of which the Company shall from time to time notify the Holder of this Security), on any Business Day not later than the 15th, and not earlier than the 25th, calendar day prior to the applicable Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), either (i) this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of this Security, (b) the principal amount of this Security and the amount of this Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that the Company will receive this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, not later than five Business Days after the date of such facsimile transmission or letter (provided that this Security and form duly completed and signed are received by the Company by such fifth Business Day). Any such election shall be irrevocable. The address to which such deliveries are to be made is The Bank of New York Mellon, Attention: Corporate Trust Administration, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262 (or at such other places as the Company or the Trustee shall notify the Holder of this Security). All questions as to the validity, eligibility (including time of receipt) and acceptance of any Security for repayment will be determined by the Company, whose determination will be final and binding. Notwithstanding the foregoing, (x) if this Security is a Global Security, the option of the Holder to elect repayment may be exercised in accordance with the Applicable Procedures of the Depositary for this Security at least 15 calendar days prior to the applicable Repayment Date and (y) whether or not this Security is a Global Security, the option of the Holder to elect repayment may be exercised in any such manner as the Company may approve.
6. | Transfer and Exchange |
As provided in the 2016 Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuers in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the 2016 Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor, of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuers, the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to the provisions of the 2016 Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.
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7. | Defeasance |
The 2016 Indenture contains provisions for Defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the 2016 Indenture. Unless otherwise specified on the face hereof, both of such provisions are applicable to this Security.
8. | Remedies |
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the 2016 Indenture.
As provided in and subject to the provisions of the 2016 Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the 2016 Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 51% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the 2016 Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the 2016 Indenture and no provision of this Security or of the 2016 Indenture shall alter or impair the obligation of the Issuers, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
9. | Modification and Waiver |
The 2016 Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuers and the rights of the Holders of the Securities to be affected under the 2016 Indenture at any time by the Issuers and the Trustee with the consent of the Holders of a majority in principal amount of all Securities at the time Outstanding to be affected, considered together as one class for this purpose (such Securities to be affected may be Securities of the same or different series and, with respect to any series, may comprise fewer than all the Securities of such series). The 2016 Indenture also contains provisions (i) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding to be affected under the 2016 Indenture, considered together as one class for this purpose (such affected Securities may be Securities of the same or different series and, with respect to any particular series, may comprise fewer than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with certain provisions of the 2016 Indenture and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding of any series to be affected under the 2016 Indenture (with each such series considered separately for this purpose), on behalf of the Holders of all Securities of such series, to waive certain past defaults under the 2016 Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
10. | Governing Law |
This Security and the 2016 Indenture shall be governed by and construed in accordance with the laws of the State of New York, but without regard to principles of conflicts of laws.
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CUSIP NO.
ORIGINAL ISSUE DATE:
JEFFERIES
GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SENIOR NOTE
OPTION TO ELECT REPAYMENT
TO
BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Issuers to repay the Security referred to in this notice (or the portion thereof specified below) at the applicable Repayment Price, together with interest to the Repayment Date, all as provided for in such Security, to the undersigned, whose name, address and telephone number are as follows:
(please print name of the undersigned)
(please print address of the undersigned)
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned requests repayment on the earliest Repayment Date after the requirements for exercising this option have been satisfied, and references in this notice to the Repayment Date mean such earliest Repayment Date. Terms used in this notice that are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable address of the Trustee set forth below or at such other place or places of which the Company or the Trustee shall from time to time notify the Holder of such Security, any Business Day not later than the 15th or earlier than the 25th calendar day prior to the Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), (i) such Security, with this “Option to Elect Repayment” form duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of such Security, (b) the principal amount of such Security and the amount of such Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that such Security to be repaid with the form entitled “Option to Elect Repayment” on the addendum to the Security duly completed and signed will be received by the Company not later than five Business Days after the date of such facsimile transmission or letter (provided that such Security and form duly completed and signed are received by the Company by such fifth Business Day). The address to which such deliveries are to be made is:
The
Bank of New York Mellon
Attention: Corporate Trust Administration
500 Ross Street, 12th Floor
Pittsburgh,
PA 15262
or at such other place as the Company or the Trustee shall notify the Holder of such Security.
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If less than the entire principal amount of such Supplemental Obligation is to be repaid, specify the portion thereof (which shall equal any Authorized Denomination) that the Holder elects to have repaid: ________________
and specify the denomination or denominations (which shall equal any Authorized Denomination) of the Security or Securities to be issued to the Holder in respect of the portion of such Security not being repaid (in the absence of any specification, one Security will be issued in respect of the portion not being repaid): _________________________
Date: | Notice: The signature to this Option to Elect Repayment must correspond with the name of the Holder as written on the face of such Security in every particular without alteration or enlargement or any other change whatsoever. |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM — as tenants in common
TEN ENT — as tenants by the entireties
JT TEN — as joint tenants with the right of survivorship and not as tenants in common
UNIF GIFT MIN ACT – | _______ Custodian _______ | |
(Cust) (Minor) | ||
under Uniform Gifts to Minors Act |
(State)
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please Print or Typewrite Name and Address Including Postal Zip Code of Assignee)
the attached Security and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer said Security on the books of the Issuers, with full power of substitution in the premises.
26
Exhibit 4.10
[FORM OF FIXED RATE MEDIUM-TERM SUBORDINATED NOTE]
(Face of Security)
[IF A GLOBAL SECURITY, INSERT — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE 2016 INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE 2016 INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO JEFFERIES GROUP LLC, JEFFERIES GROUP CAPITAL FINANCE INC. OR THEIR 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 TO 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]
[INSERT ANY LEGEND REQUIRED BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT AND THE REGULATIONS THEREUNDER.]
THIS SECURITY IS NOT A BANK DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY, NOR IS IT AN OBLIGATION OF, OR GUARANTEED BY, A BANK.
(Face of Security continued on next page)
CUSIP No.
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SUBORDINATED NOTES
(Fixed Rate)
The following terms apply to this Security, as and to the extent shown below:
PRINCIPAL AMOUNT: | ORIGINAL ISSUE DATE*: | STATED MATURITY DATE: |
ORIGINAL ISSUE DISCOUNT SECURITY: | ||
Total Amount of OID: | ||
Yield to Maturity: | ||
Initial Accrual Period OID: | ||
SPECIFIED CURRENCY: U.S. dollars for all
payments unless otherwise specified below: |
REDEMPTION
COMMENCEMENT DATE: |
INTEREST PAYMENT
DATE(S): |
● payments of principal and any premium: | , subject to the provisions | |
● payments of interest: | under | |
Exchange Rate Agent | “Payments Due on a | |
Business Day” | ||
below | ||
DEFEASANCE | REPAYMENT DATE(S): | Interest Rate: % per annum |
Full Defeasance: | ||
Covenant Defeasance: | ||
REDEMPTION OR REPAYMENT PRICE(S): | DAY COUNT CONVENTION: | |
BUSINESS DAY CONVENTION: | ||
OTHER TERMS: |
* | [This date shall be the issue date of this Security, unless there is a Predecessor Security, in which case this date shall be the issue date of the first Predecessor security.] |
(Face of Security continued on next page)
Terms left blank or marked “N/A”, “No”, “None” or in a similar manner do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to this Security have the meanings specified above, unless the context requires otherwise. Other terms used in this Security that are not defined herein but that are defined in the 2016 Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
Jefferies Group LLC, a limited liability company existing under the laws of the State of Delaware (hereinafter called the “Company”, which term includes any successor Person under the 2016 Indenture) and Jefferies Group Capital Finance Inc., a corporation existing under the laws of the State of Delaware (hereinafter called the “Co-Issuer”, which term includes any successor Person under the 2016 Indenture, and the Company and Co-Issuer, collectively, the “Issuers”), for value received as joint and several obligors, hereby promise to pay to , or registered assigns, as principal the Principal Amount on the Stated Maturity Date and to pay interest thereon, from the Original Issue Date or from the most recent Interest Payment Date to which interest has been paid or made available for payment, on the Interest Payment Date(s) in each year, commencing on the first such date specified on the face of this Security, and at the Maturity of the principal hereof, at the rate per annum equal to the Interest Rate specified on the face hereof, until the principal hereof is paid or made available for payment. Any premium and any such installment of interest that is overdue at any time shall also bear interest (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum at which the principal then bears interest, from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
On each Interest Payment Date, the amount of interest payable will equal the Principal Amount hereof multiplied by an accrued interest factor for the Interest Period. The Interest Period will be the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), to but excluding the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof). The accrued interest factor will equal the Interest Rate specified on the face hereof multiplied by the Day Count Convention specified on the face hereof for the applicable Interest Period.
The applicable Day Count Convention is specified on the face hereof and means:
(i) if “1/1 (ISDA)” is specified, 1;
(ii) if “Actual/Actual (ISDA)” or “Act/Act (ISDA)” is specified, the actual number of days in the Interest Period divided by 365 (or, if any portion of that Interest Period falls in a leap year, the sum of (1) the actual number of days in that portion of the Interest Period falling in a leap year divided by 366 and (2) the number of days in that portion of the Interest Period falling in a non-leap year divided by 365);
(iii) if “Actual/Actual (ICMA)” is specified, the number of days in the Interest Period, including February 29 in a leap year, divided by the product of (1) the actual number of days in such Interest Period and (2) the number of Interest Periods in the calendar year;
(iv) if “Actual/Actual (Bond)” is specified, the number of calendar days in the Interest Period, divided by the number of calendar days in the Interest Period multiplied by the number of Interest Periods in the calendar year;
(v) if “Actual/Actual (Euro)” is specified, the number of calendar days in the Interest Period divided by 365 or, if the Interest Period includes February 29, 366;
(vi) if “Actual/365 (Fixed)”, “Act/365 (Fixed)”, “A/365 (Fixed)” or “A365F” is specified, the actual number of days in the Interest Period divided by 365;
(vii) if “Actual/360 (ISDA)”, “Act/360 (ISDA)” or “A/360 (ISDA)” is specified, the actual number of days in the Interest Period divided by 360;
(Face of Security continued on next page)
(viii) if “Actual/360 (ICMA)” is specified, the number of calendar days in the period, including February 29 in a leap year, divided by 360 days;
(ix) if “30/360” is specified, the calculation shall be made assuming a 360-day year of 12 30-day months;
(x) if “30/360 (ISDA)”, “360/360 (ISDA)” or “Bond Basis (ISDA)” is specified, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
Where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless such number would be 31, in which case D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless such number would be 31 and D1 is greater than 29, in which case D2 will be 30; and |
(xi) if “30E/360”, “30E/360 (ISDA)” or “Eurobond Basis” is specified, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is the last day of February, in which cases D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is also the last day of February and not the maturity date, in which cases D2 will be 30. |
(Face of Security continued on next page)
The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date will, as provided in the 2016 Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the [if Global Security, insert — calendar day (whether or not a Business Day (as defined in Section 3 on the reverse hereof))] [if not a Global Security, insert alternative provision acceptable to Trustee and Registrar] immediately preceding the day on which payment is to be made (as such payment date may be adjusted in accordance with the Business Day Convention specified on the face hereof and the second paragraph under “Payments Due on a Business Day” below) (a “Regular Record Date”). Any interest so payable, but not punctually paid or made available for payment, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof being given to the Holder of this Security not less than 10 days prior to such Special Record Date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the 2016 Indenture. For the purpose of determining the Holder at the close of business on any relevant record date when business is not being conducted, the close of business will mean 5:00 P.M., New York City time, on that day.
All percentages resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this Security will be made in the Specified Currency for such payment, except as provided in this and the next three paragraphs. The Specified Currency for any payment shall be the currency specified as such on the face of this Security unless, at the time of such payment, such currency is not legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date, in which case the Specified Currency for such payment shall be such coin or currency as at the time of such payment is legal tender for the payment of public and private debts in such country, except as provided in the next sentence. If the euro is specified on the face of this Security as the Specified Currency for any payment, the Specified Currency for such payment shall be such coin or currency as at the time of payment is legal tender for the payment of public and private debts in all EMU Countries (as defined in Section 3 on the reverse hereof), provided that if on any day there are not at least two EMU Countries, or if on any day there are at least two EMU Countries but no coin or currency is legal tender for the payment of public and private debts in all EMU Countries, then the Specified Currency for such payment shall be deemed not to be available to the Issuers on such day.
Except as provided in the next paragraph, any payment to be made on this Security in a Specified Currency other than U.S. dollars will be made in U.S. dollars if the Person entitled to receive such payment transmits a written request for such payment to be made in U.S. dollars to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the payment is to be made. Such written request may be mailed, hand delivered, telecopied or delivered in any other manner approved by the Trustee. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date.
(Face of Security continued on next page)
The U.S. dollar amount of any payment made pursuant to the immediately preceding paragraph will be determined by the Exchange Rate Agent based upon the highest bid quotation received by the Exchange Rate Agent as of approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date, from three (or, if three are not available, then two) recognized foreign exchange dealers selected by the Exchange Rate Agent in The City of New York, in each case for the purchase by the quoting dealer, for U.S. dollars and for settlement on such payment date of an amount of such Specified Currency for such payment equal to the aggregate amount of such Specified Currency payable on such payment date to all Holders of this Security who elect to receive U.S. dollar payments on such payment date, and at which the applicable dealer commits to execute a contract. If the Exchange Rate Agent determines that two such bid quotations are not available on such second Business Day, such payment will be made in the Specified Currency for such payment. All currency exchange costs associated with any payment in U.S. dollars on this Security will be borne by the Holder entitled to receive such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is payable on any day (including at Maturity) in a Specified Currency other than U.S. dollars, and if such Specified Currency is not available to the Issuers on the two Business Days before such day, due to the imposition of exchange controls, disruption in a currency market or any other circumstances beyond the control of the Issuers, the Issuers will be entitled to satisfy their obligation to pay such amount in such Specified Currency by making such payment in U.S. dollars. The amount of such payment in U.S. dollars shall be determined by the Exchange Rate Agent on the basis of an exchange rate for such Specified Currency published at approximately 12:00 noon, New York City time, by a generally recognized and publicly available source, to be determined in the sole discretion of the Exchange Rate Agent, on the latest day before the day on which such payment is to be made (the “Exchange Rate”). Any payment made under such circumstances in U.S. dollars where the required payment is in other than U.S. dollars will not constitute an Event of Default under the 2016 Indenture or this Security.
Manner of Payment — U.S. Dollars
Except as provided in the next paragraph, payment of any amount payable on this Security in U.S. dollars will be made at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender (in the manner provided below) of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that, at the option of the Issuers and subject to the next paragraph, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of this Security is at least $1,000,000 (or the equivalent in another currency) and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
(Face of Security continued on next page)
Manner of Payment — Other Specified Currencies
Payment of any amount payable on this Security in a Specified Currency other than U.S. dollars will be made by wire transfer of immediately available funds to such account as is maintained in such Specified Currency at a bank or other financial institution acceptable to the Issuers and the Trustee and as shall have been designated at least five Business Days prior to the applicable payment date by the Person entitled to receive such payment; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Such account designation shall be made by transmitting the appropriate information to the Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier or in any other manner approved by the Trustee. Unless revoked, any such account designation made with respect to this Security by the Holder hereof will remain in effect with respect to any further payments with respect to this Security payable to such Holder. If a payment in a Specified Currency other than U.S. dollars with respect to this Security cannot be made by wire transfer because the required account designation has not been received by the Trustee on or before the requisite date or for any other reason, the Issuers will cause a notice to be given to the Holder of this Security at its registered address requesting an account designation pursuant to which such wire transfer can be made and such payment will be made within five Business Days after the Trustee’s receipt of such a designation meeting the requirements specified above, with the same force and effect as if made on the due date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
Manner of Payment — Global Securities
Notwithstanding any provision of this Security or the 2016 Indenture, if this Security is a Global Security, the Issuers may make any and all payments of principal, premium and interest on this Security pursuant to the Applicable Procedures of the Depositary for this Security as permitted in the 2016 Indenture.
Payments Due on a Business Day
Notwithstanding any provision of this Security or the 2016 Indenture, if any amount of principal, premium or interest due at the Maturity hereof would otherwise be due on this Security on a day (the “Specified Day”) that is not a Business Day, such amount may be paid or made available for payment on the Business Day that is next succeeding the Specified Day with the same force and effect as if such amount were paid on the Specified Day, and no interest will accrue on the amount so payable for the period from the Specified Day to such next succeeding Business Day.
As specified on the face of this Security, one of the following Business Day Conventions shall apply to any Interest Period or Interest Payment Date other than one that falls on the date of Maturity of the principal hereof. If any such date would otherwise fall on a day that is not a Business Day:
(i) if the Business Day Convention specified on the face hereof is “Following”, then such date shall be postponed to the next day that is a Business Day;
(ii) if the Business Day Convention specified on the face hereof is “Modified Following”, then such date shall be postponed to the next day that is a Business Day; provided that if such next succeeding Business Day falls in the next calendar month, then such date shall be advanced to the immediately preceding Business Day;
(iii) if the Business Day Convention specified on the face hereof is “Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that the Interest Periods shall not be adjusted for non-Business Days; and
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(iv) if the Business Day Convention specified on the face hereof is “Modified Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; and provided further that, if such day would fall in the next succeeding calendar month, the date of payment with respect to such Interest Payment Date shall be advanced to the Business Day immediately preceding such Interest Payment Date; and provided further that the Interest Periods shall not be adjusted for non-Business Days.
The provisions of the two immediately preceding paragraphs shall apply to this Security in lieu of the provisions of Section 1.13 of the 2016 Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place, including without limitation, the provisions relating to the subordination of this Security to the Issuers’ Senior Debt as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the 2016 Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuers have each caused this instrument to be duly executed.
Dated:
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
This is one of the Securities of the series designated herein and referred to in the 2016 Indenture.
Dated:
THE BANK OF NEW YORK MELLON, | ||
as Trustee | ||
By: | ||
Name: | ||
Authorized Signatory |
(Reverse of Security)
1. | Securities and Indenture |
This Security is one of a duly authorized issue of securities of the Issuers (herein called the “Securities”) issued and to be issued in one or more series under a Subordinated Debt Indenture, dated as of February , 2016 (herein called the “2016 Indenture”, which term shall have the meaning assigned to it in such instrument), among each of the Issuers and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the 2016 Indenture), and reference is hereby made to the 2016 Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuers, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
2. | Series and Denominations |
This Security is one of the series of Securities designated on the face hereof, limited to an aggregate principal amount (or the equivalent thereof in any other currency or currencies or currency units) as shall be determined and may be increased from time to time by the Issuers. References herein to “this series” mean the series of Securities designated as Medium-Term Notes.
The Securities of this series are issuable only in registered form without coupons in “Authorized Denominations”, which term shall have the following meaning. For each Security of this series having a principal amount payable in U.S. dollars, the Authorized Denominations shall be $1,000 and integral multiples of $1,000 in excess thereof and for each Security of this series having a principal amount payable in a Specified Currency other than U.S. dollars, the Authorized Denominations shall be the amount of such Specified Currency equivalent, at the Exchange Rate on the first Business Day preceding the date on which the Company accepts the offer to purchase such Security, to $1,000 or any integral multiples of $1,000 in excess thereof.
3. | Exchange Rate Agent and Related Terms |
If the principal of or interest on this Security is payable in a Specified Currency other than U.S. dollars, the Issuers have initially appointed the institution named on the face of this Security as Exchange Rate Agent to act as such agent with respect to this Security, but the Issuers may, in their sole discretion, appoint any other institution (including any Affiliate of the Issuers) to serve as any such agent from time to time. The Issuers will give the Trustee prompt written notice of any change in any such appointment. Insofar as this Security provides for any such agent to obtain rates, quotes or other data from a bank, dealer or other institution for use in making any determination hereunder, such agent may do so from any institution or institutions of the kind contemplated hereby notwithstanding that any one or more of such institutions are such agent, Affiliates of such agent or Affiliates of the Issuers.
All determinations made by the Exchange Rate Agent may be made by such agent in its sole discretion and, absent manifest error, shall be conclusive for all purposes and binding on the Holder of this Security and the Issuers. The Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all purposes of this Security, the term “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday that (i) is not a day on which banking institutions in The City of New York generally are authorized or obligated by law, regulation or executive order to close, (ii) if the Specified Currency for any payment on this Security is other than U.S. dollars or euro, is not a day on which banking institutions in the principal financial center of the country issuing such Specified Currency generally are authorized or obligated by law, regulation or executive order to close, (iii) if the Specified Currency for any payment on this Security is euro, is not a Euro Business Day and (iv) solely with respect to any payment or other action to be made or taken at any Place of Payment outside The City of New York, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in such Place of Payment generally are authorized or obligated by law, regulation or executive order to close. “Euro Business Day” means any day on which the Trans-European Automated Real-Time Gross Settlement Express (TARGET2) System, or any successor system, is open for business. With respect to any particular location, the close of business on any day on which business is not being conducted shall be deemed to mean 5:00 P.M., New York City time, on that day.
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References in this Security to U.S. dollars shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time, the coin or currency (if any) that is then legal tender for the payment of public and private debts in all EMU Countries. “EMU Countries” means, at any time, the countries (if any) then participating in the third stage of the European Economic and Monetary Union pursuant to the treaty establishing the European Community, as it may be amended from time to time.
References in this Security to a particular currency other than U.S. dollars and euro shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date.
4. | Redemption at the Company’s Option |
If a Redemption Commencement Date or the occurrence of a specified event giving rise to redemption is specified on the face hereof, this Security shall be redeemable at the option of the Company before the Maturity of the principal thereof. If a Redemption Commencement Date or redemption event is so specified, and unless otherwise specified on the face hereof, this Security is subject to redemption upon the notice specified on the face hereof or, if no notice period is specified, upon not less than 30 days’ nor more than 60 days’ notice, at any time and from time to time on or after the Redemption Commencement Date, in each case as a whole or in part, at the election of the Company and at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Security to be redeemed), together with accrued interest to the redemption date, but interest installments due on or prior to such redemption date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record on the relevant record dates referred to on the face hereof, all as provided in the 2016 Indenture.
5. | Repayment at the Holder’s Option |
Except as otherwise may be provided on the face hereof, if one or more Repayment Dates are specified on the face hereof, this Security will be repayable in whole or in part in an amount equal to any Authorized Denomination (provided that the remaining principal amount of any Security surrendered for partial repayment shall at least equal an Authorized Denomination), on any such Repayment Date, in each case at the option of the Holder and at the applicable Repayment Price specified on the face hereof (expressed as a percentage of the principal amount to be repaid), together with accrued interest to the applicable Repayment Date (but interest installments due on or prior to such Repayment Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Date as provided in the 2016 Indenture). If this Security provides for more than one Repayment Date and the Holder exercises its option to elect repayment, the Holder shall be deemed to have elected repayment on the earliest Repayment Date after all conditions to such exercise have been satisfied, and references herein to the applicable Repayment Date shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security to be repaid, the Company must receive at the applicable address of the Trustee set forth below (or at such other place or places of which the Company shall from time to time notify the Holder of this Security), on any Business Day not later than the 15th, and not earlier than the 25th, calendar day prior to the applicable Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), either (i) this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of this Security, (b) the principal amount of this Security and the amount of this Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that the Company will receive this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, not later than five Business Days after the date of such facsimile transmission or letter (provided that this Security and form duly completed and signed are received by the Company by such fifth Business Day). Any such election shall be irrevocable. The address to which such deliveries are to be made is The Bank of New York Mellon, Attention: Corporate Trust Administration, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262 (or at such other places as the Company or the Trustee shall notify the Holder of this Security). All questions as to the validity, eligibility (including time of receipt) and acceptance of any Security for repayment will be determined by the Company, whose determination will be final and binding. Notwithstanding the foregoing, (x) if this Security is a Global Security, the option of the Holder to elect repayment may be exercised in accordance with the Applicable Procedures of the Depositary for this Security at least 15 calendar days prior to the applicable Repayment Date and (y) whether or not this Security is a Global Security, the option of the Holder to elect repayment may be exercised in any such manner as the Company may approve.
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6. | Transfer and Exchange |
As provided in the 2016 Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuers in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the 2016 Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuers, the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to the provisions of the 2016 Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.
7. | Defeasance |
The 2016 Indenture contains provisions for Defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the 2016 Indenture. Unless otherwise specified on the face hereof, both of such provisions are applicable to this Security.
8. | Subordination |
This Security and all other obligations of the Issuers hereunder will constitute part of the subordinated debt of the Issuers, will be issued under the 2016 Indenture and will be subordinate and junior in right of payment, to the extent and in the manner set forth in the 2016 Indenture, to all “Senior Debt” of the Issuers. The 2016 Indenture defines “Senior Debt” as all indebtedness and obligations (other than the Securities) of, or guaranteed or assumed by, an Issuer that are for borrowed money or are evidenced by bonds, debentures, notes or other similar instruments, whether outstanding on the date of the 2016 Indenture or thereafter created, incurred, assumed or guaranteed, and all amendments, renewals, extensions, modifications and refundings of such indebtedness and obligations, unless in any such case the instrument by which such indebtedness or obligations are created, incurred, assumed or guaranteed by an Issuer, or are evidenced, provides that they are subordinate, or are not superior, in right of payment to the Securities.
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9. | Remedies |
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the 2016 Indenture.
As provided in and subject to the provisions of the 2016 Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the 2016 Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 51% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the 2016 Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the 2016 Indenture and no provision of this Security or of the 2016 Indenture shall alter or impair the obligation of the Issuers, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
10. | Modification and Waiver |
The 2016 Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuers and the rights of the Holders of the Securities to be affected under the 2016 Indenture at any time by the Issuers and the Trustee with the consent of the Holders of a majority in principal amount of all Securities at the time Outstanding to be affected, considered together as one class for this purpose (such Securities to be affected may be Securities of the same or different series and, with respect to any series, may comprise fewer than all the Securities of such series). The 2016 Indenture also contains provisions (i) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding to be affected under the 2016 Indenture, considered together as one class for this purpose (such affected Securities may be Securities of the same or different series and, with respect to any particular series, may comprise fewer than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with certain provisions of the 2016 Indenture and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding of any series to be affected under the 2016 Indenture (with each such series considered separately for this purpose), on behalf of the Holders of all Securities of such series, to waive certain past defaults under the 2016 Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. | Governing Law |
This Security and the 2016 Indenture shall be governed by and construed in accordance with the laws of the State of New York, but without regard to principles of conflicts of laws.
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CUSIP NO.
ORIGINAL ISSUE DATE:
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SUBORDINATED NOTE
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Issuers to repay the Security referred to in this notice (or the portion thereof specified below) at the applicable Repayment Price, together with interest to the Repayment Date, all as provided for in such Security, to the undersigned, whose name, address and telephone number are as follows:
(please print name of the undersigned
(please print address of the undersigned)
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned requests repayment on the earliest Repayment Date after the requirements for exercising this option have been satisfied, and references in this notice to the Repayment Date mean such earliest Repayment Date. Terms used in this notice that are defined in such Security are used herein as defined therein.
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The Bank of New York Mellon
Attention: Corporate Trust Administration
500 Ross Street, 12th Floor
Pittsburgh, PA 15262
For such Security to be repaid the Company must receive at the applicable address of the Trustee set forth below or at such other place or places of which the Company or the Trustee shall from time to time notify the Holder of such Security, any Business Day not later than the 15th or earlier than the 25th calendar day prior to the Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), (i) such Security, with this “Option to Elect Repayment” form duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of such Security, (b) the principal amount of such Security and the amount of such Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that such Security to be repaid with the form entitled “Option to Elect Repayment” on the addendum to the Security duly completed and signed will be received by the Company not later than five Business Days after the date of such facsimile transmission or letter (provided that such Security and form duly completed and signed are received by the Company by such fifth Business Day). The address to which such deliveries are to be made is:
or at such other place as the Company or the Trustee shall notify the Holder of such Security.
If less than the entire principal amount of such Security is to be repaid, specify the portion thereof (which shall equal any Authorized Denomination) that the Holder elects to have repaid: __________________________________________________________________________________________
and specify the denomination or denominations (which shall equal any Authorized Denomination) of the Security or Securities to be issued to the Holder in respect of the portion of such Security not being repaid (in the absence of any specification, one Security will be issued in respect of the portion not being repaid): _______________________________________________________________________________________________________________
Date:
Notice: The signature to this Option to Elect Repayment must correspond with the name of the Holder as written on the face of such Security in every particular without alteration or enlargement or any other change whatsoever. |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM — as tenants in common
TEN ENT — as tenants by the entireties
JT TEN — as joint tenants with the right of survivorship and not as tenants in common
UNIF GIFT MIN ACT – | Custodian | |||
(Cust) | (Minor) | |||
under Uniform Gifts to Minors | ||||
Act |
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto |
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE |
(Please Print or Typewrite Name and Address Including Postal Zip Code of Assignee) |
the attached Security and all rights there under, and hereby irrevocably constitutes and appoints |
to transfer said Security on the books of the Issuers, with full power of substitution in the premises. |
Date: | NOTICE: The signature to this assignment must correspond with the name of the Holder as written upon the face of the attached Security in every particular, without alteration or enlargement or any change whatever. |
Signature Guaranteed
NOTICE: Signature must be guaranteed. |
17
Exhibit 4.11
[FORM OF FLOATING RATE MEDIUM-TERM SUBORDINATED NOTE]
(Face of Security)
[IF A GLOBAL SECURITY, INSERT — THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE 2016 INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE 2016 INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT — UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO JEFFERIES GROUP, LLC, JEFFERIES GROUP CAPITAL FINANCE INC. OR THEIR 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 TO 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]
[INSERT ANY LEGEND REQUIRED BY THE EMPLOYEE RETIREMENT INCOME SECURITY ACT AND THE REGULATIONS THEREUNDER.]
THIS SECURITY IS NOT A BANK DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY, NOR IS IT AN OBLIGATION OF, OR GUARANTEED BY, A BANK.
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CUSIP No.
JEFFERIES GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SUBORDINATED NOTES
(Floating Rate)
The following terms apply to this Security, as and to the extent shown below:
PRINCIPAL AMOUNT: | ORIGINAL ISSUE DATE*: | STATED MATURITY DATE: |
ORIGINAL ISSUE DISCOUNT SECURITY: | ||
Total Amount of OID: | ||
Yield to Maturity: | ||
Initial Accrual Period OID: | ||
BASE RATE:
CMS Rate: CMT Rate: |
TRADE DATE: | INTEREST PAYMENT DATE(S): , subject to the provisions under “Payments Due on a Business Day” below. |
Designated CMT Reuters Screen Page: | ||
Designated CMT Index Maturity: | ||
Compounded SOFR: | ||
Federal Funds Rate: | ||
Prime Rate: | ||
Treasury Rate: | ||
INITIAL BASE RATE: | MAXIMUM RATE: | INTEREST RESET PERIOD: |
INDEX MATURITY: | MINIMUM RATE: | INTEREST RESET DATE(S): , subject to the second paragraph under “Payments Due on a Business Day” below. |
* | [This date shall be the issue date of this Security, unless there is a Predecessor Security, in which case this date shall be the issue date of the first Predecessor security.] |
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Terms left blank or marked “N/A”, “No”, “None” or in a similar manner do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to this Security have the meanings specified above, unless the context requires otherwise. Other terms used in this Security that are not defined herein but that are defined in the 2016 Indenture referred to in Section 1 on the reverse of this Security are used herein as defined therein.
Jefferies Group LLC, a limited liability company existing under the laws of the State of Delaware (hereinafter called the “Company”, which term includes any successor Person under the 2016 Indenture) and Jefferies Group Capital Finance Inc., a corporation existing under the laws of the State of Delaware (hereinafter called the “Co-Issuer”, which term includes any successor Person under the 2016 Indenture, and the Company and Co-Issuer, collectively, the “Issuers”), for value received as joint and several obligors, hereby promise to pay to , or registered assigns, as principal the Principal Amount on the Stated Maturity Date and to pay interest thereon, from the Original Issue Date or from the most recent Interest Payment Date to which interest has been paid or made available for payment, on the Interest Payment Date(s) in each year, commencing on the first such date specified on the face of this Security, and at the Maturity of the principal hereof, at a rate per annum determined in accordance with the applicable provisions of Section 3 on the reverse hereof, until the principal hereof is paid or made available for payment. Any premium and any such installment of interest that is overdue at any time shall also bear interest (to the extent that the payment of such interest shall be legally enforceable) at the rate per annum at which the principal then bears interest, from the date any such overdue amount first becomes due until it is paid or made available for payment. Notwithstanding the foregoing, interest on any principal, premium or installment of interest that is overdue shall be payable on demand.
The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date will, as provided in the 2016 Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the [if Global Security, insert — calendar day (whether or not a Business Day (as defined in Section 3(l) on the reverse hereof))] [if not a Global Security, insert alternative provision acceptable to Trustee and Registrar] immediately preceding the day on which payment is to be made (as such payment date may be adjusted in accordance with the Business Day Convention specified on the face hereof and the second paragraph under “Payments Due on a Business Day” below) (a “Regular Record Date”). Any interest so payable, but not punctually paid or made available for payment, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and such Defaulted Interest may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof being given to the Holder of this Security not less than 10 days prior to such Special Record Date, or be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the 2016 Indenture. For the purpose of determining the Holder at the close of business on any relevant record date when business is not being conducted, the close of business will mean 5:00 P.M., New York City time, on that day.
Currency of Payment
Payment of principal of (and premium, if any) and interest on this Security will be made in the Specified Currency for such payment, except as provided in this and the next three paragraphs. The Specified Currency for any payment shall be the currency specified as such on the face of this Security unless, at the time of such payment, such currency is not legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date, in which case the Specified Currency for such payment shall be such coin or currency as at the time of such payment is legal tender for the payment of public and private debts in such country, except as provided in the next sentence. If the euro is specified on the face of this Security as the Specified Currency for any payment, the Specified Currency for such payment shall be such coin or currency as at the time of payment is legal tender for the payment of public and private debts in all EMU Countries (as defined in Section 3(l) on the reverse hereof), provided that if on any day there are not at least two EMU Countries, or if on any day there are at least two EMU Countries but no coin or currency is legal tender for the payment of public and private debts in all EMU Countries, then the Specified Currency for such payment shall be deemed not to be available to the Issuers on such day.
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Except as provided in the next paragraph, any payment to be made on this Security in a Specified Currency other than U.S. dollars will be made in U.S. dollars if the Person entitled to receive such payment transmits a written request for such payment to be made in U.S. dollars to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the payment is to be made. Such written request may be mailed, hand delivered, telecopied or delivered in any other manner approved by the Trustee. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the immediately preceding paragraph will be determined by the Exchange Rate Agent based upon the highest bid quotation received by the Exchange Rate Agent as of approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date, from three (or, if three are not available, then two) recognized foreign exchange dealers selected by the Exchange Rate Agent in The City of New York, in each case for the purchase by the quoting dealer, for U.S. dollars and for settlement on such payment date of an amount of such Specified Currency for such payment equal to the aggregate amount of such Specified Currency payable on such payment date to all Holders of this Security who elect to receive U.S. dollar payments on such payment date, and at which the applicable dealer commits to execute a contract. If the Exchange Rate Agent determines that two such bid quotations are not available on such second Business Day, such payment will be made in the Specified Currency for such payment. All currency exchange costs associated with any payment in U.S. dollars on this Security will be borne by the Holder entitled to receive such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is payable on any day (including at Maturity) in a Specified Currency other than U.S. dollars, and if such Specified Currency is not available to the Company on the two Business Days before such day, due to the imposition of exchange controls, disruption in a currency market or any other circumstances beyond the control of the Issuers, the Issuers will be entitled to satisfy their obligation to pay such amount in such Specified Currency by making such payment in U.S. dollars. The amount of such payment in U.S. dollars shall be determined by the Exchange Rate Agent on the basis of an exchange rate for such Specified Currency published at approximately 12:00 noon, New York City time, by a generally recognized and publicly available source, to be determined in the sole discretion of the Exchange Rate Agent, on the latest day before the day on which such payment is to be made (the “Exchange Rate”). Any payment made under such circumstances in U.S. dollars where the required payment is in other than U.S. dollars will not constitute an Event of Default under the 2016 Indenture or this Security.
Manner of Payment — U.S. Dollars
Except as provided in the next paragraph, payment of any amount payable on this Security in U.S. dollars will be made at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose), in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender (in the manner provided below) of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date); provided, however, that, at the option of the Issuers and subject to the next paragraph, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
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Payment of any amount payable on this Security in U.S. dollars will be made by wire transfer of immediately available funds to an account maintained by the payee with a bank located in the Borough of Manhattan, The City of New York, if (i) the principal of this Security is at least $1,000,000 (or the equivalent in another currency) and (ii) the Holder entitled to receive such payment transmits a written request for such payment to be made in such manner to the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, on or before the fifth Business Day before the day on which such payment is to be made; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Any such request made with respect to any payment on this Security payable to a particular Holder will remain in effect for all later payments on this Security payable to such Holder, unless such request is revoked on or before the fifth Business Day before a payment is to be made, in which case such revocation shall be effective for such payment and all later payments. In the case of any payment of interest payable on an Interest Payment Date, such written request must be made by the Person who is the registered Holder of this Security on the relevant Regular Record Date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
Manner of Payment — Other Specified Currencies
Payment of any amount payable on this Security in a Specified Currency other than U.S. dollars will be made by wire transfer of immediately available funds to such account as is maintained in such Specified Currency at a bank or other financial institution acceptable to the Issuers and the Trustee and as shall have been designated at least five Business Days prior to the applicable payment date by the Person entitled to receive such payment; provided that, in the case of any such payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes due on an Interest Payment Date), this Security must be surrendered (in the manner provided below) at the office or agency of the Issuers maintained for that purpose in The City of New York (or at any other office or agency maintained by the Issuers for that purpose) in time for the Paying Agent to make such payment in such funds in accordance with its normal procedures. Such account designation shall be made by transmitting the appropriate information to the Trustee at its Corporate Trust Office in the Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier or in any other manner approved by the Trustee. Unless revoked, any such account designation made with respect to this Security by the Holder hereof will remain in effect with respect to any further payments with respect to this Security payable to such Holder. If a payment in a Specified Currency other than U.S. dollars with respect to this Security cannot be made by wire transfer because the required account designation has not been received by the Trustee on or before the requisite date or for any other reason, the Issuers will cause a notice to be given to the Holder of this Security at its registered address requesting an account designation pursuant to which such wire transfer can be made and such payment will be made within five Business Days after the Trustee’s receipt of such a designation meeting the requirements specified above, with the same force and effect as if made on the due date. The Issuers will pay any administrative costs imposed by banks in connection with making payments by wire transfer with respect to this Security, but any tax, assessment or other governmental charge imposed upon any payment will be borne by the Holder of this Security and may be deducted from the payment by the Issuers or the Paying Agent.
Manner of Payment — Global Securities
Notwithstanding any provision of this Security or the 2016 Indenture, if this Security is a Global Security, the Issuers may make any and all payments of principal, premium and interest on this Security pursuant to the Applicable Procedures of the Depositary for this Security as permitted in the 2016 Indenture.
Payments Due on a Business Day
Notwithstanding any provision of this Security or the 2016 Indenture, if the Maturity of the principal hereof occurs on a day that is not a Business Day, any amount of principal, premium or interest that would otherwise be due on this Security on such day (the “Specified Day”) may be paid or made available for payment on the Business Day that is next succeeding the Specified Day with the same force and effect as if such amount were paid on the Specified Day, and no interest will accrue on the amount so payable for the period from the Specified Day to such next succeeding Business Day.
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As specified on the face of this Security, one of the following Business Day Conventions shall apply to any Interest Period, Interest Reset Date or Interest Payment Date other than one that falls on the date of Maturity of the principal hereof. If any such date would otherwise fall on a day that is not a Business Day:
(i) if the Business Day Convention specified on the face hereof is “Following”, then such date shall be postponed to the next day that is a Business Day;
(ii) if the Business Day Convention specified on the face hereof is “Modified Following”, then such date shall be postponed to the next day that is a Business Day; provided that if such next succeeding Business Day falls in the next calendar month, then such date shall be advanced to the immediately preceding Business Day;
(iii) if the Business Day Convention specified on the face hereof is “Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that Interest Reset Dates and Interest Periods shall not be adjusted for non-Business Days; and
(iv) if the Business Day Convention specified on the face hereof is “Modified Following Unadjusted”, any payment due on such date shall be postponed to the next day that is a Business Day; provided that interest due with respect to such Interest Payment Date shall not accrue from and including such Interest Payment Date to and including the date of payment of such interest as so postponed; provided further that, if such next succeeding Business Day would fall in the next succeeding calendar month, the date of payment with respect to such Interest Payment Date shall be advanced to the Business Day immediately preceding such Interest Payment Date; and provided further that Interest Reset Dates and Interest Periods shall not be adjusted for non-Business Days.
The provisions of the two immediately preceding paragraphs shall apply to this Security in lieu of the provisions of Section 1.13 of the 2016 Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place, including without limitation, the provisions relating to the subordination of this Security to the Issuers’ Senior Debt as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the 2016 Indenture or be valid or obligatory for any purpose.
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WITNESS WHEREOF, the Issuers have each caused this instrument to be duly executed.
Dated:
JEFFERIES GROUP LLC | ||
By: | ||
Name: | ||
Title: | ||
JEFFERIES GROUP CAPITAL FINANCE INC. | ||
By: | ||
Name: | ||
Title: |
This is one of the Securities of the series designated herein and referred to in the 2016 Indenture.
Dated:
THE BANK OF NEW YORK MELLON, | ||
as Trustee | ||
By: | ||
Authorized Signatory |
(Reverse of Security)
1. | Securities and Indenture |
This Security is one of a duly authorized issue of securities of the Issuers (herein called the “Securities”) issued and to be issued in one or more series under a Subordinated Debt Indenture, dated as of February , 2016 (herein called the “2016 Indenture”, which term shall have the meaning assigned to it in such instrument), among each of the Issuers and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the 2016 Indenture), and reference is hereby made to the 2016 Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuers, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
2. | Series and Denominations |
This Security is one of the series of Securities designated on the face hereof, limited to an aggregate principal amount (or the equivalent thereof in any other currency or currencies or currency units) as shall be determined and may be increased from time to time by the Issuers. References herein to “this series” mean the series of Securities designated as Medium-Term Notes.
The Securities of this series are issuable only in registered form without coupons in “Authorized Denominations”, which term shall have the following meaning. For each Security of this series having a principal amount payable in U.S. dollars, the Authorized Denominations shall be $1,000 and integral multiples of $1,000 in excess thereof and for each Security of this series having a principal amount payable in a Specified Currency other than U.S. dollars, the Authorized Denominations shall be the amount of such Specified Currency equivalent, at the Exchange Rate on the first Business Day preceding the date on which the Company accepts the offer to purchase such Security, to $1,000 or any integral multiples of $1,000 in excess thereof.
3. | Interest Rate |
(a) Interest Rate Reset. The interest rate on this Security (other than if the Base Rate is Compounded SOFR)will be reset from time to time as provided in this Section 3, and each date upon which such rate is reset as so provided is hereinafter called an “Interest Reset Date”. The Interest Reset Dates with respect to this Security will be as specified on the face hereof; provided, however, that (x) the Base Rate in effect from and including the Original Issue Date to but excluding the initial Interest Reset Date will be the Initial Base Rate and (y) any Interest Reset Date shall be subject to adjustment if and as provided in the second paragraph under the heading “Payments Due on a Business Day” on the face of this Security.
Subject to applicable provisions of law and except as otherwise specified herein, on each Interest Reset Date the interest rate on this Security shall be the rate determined in accordance with such of the following Sections 3(b) through 3(g) (below) as are applicable, in whole or in part, and as provide for determination of the Base Rate for this Security, as adjusted by the addition or subtraction of the Spread, if any, or by multiplying such Base Rate by the Spread Multiplier, if any, and subject to adjustment as provided in Section 3(h) below. The Calculation Agent shall determine the interest rate of this Security in accordance with the applicable Section below.
The Calculation Agent will determine the interest rate on this Security that takes effect on any Interest Reset Date:
(i) if the Base Rate is the Treasury Rate, on the Interest Reset Date, or in the circumstances described in Section 3(g) below, a day no later than the applicable Calculation Date (as defined in Section 3(j) below);
(ii) if the Base Rate is the Federal Funds Rate or Prime Rate, on the applicable Interest Reset Date; and
(iii) if the Base Rate is CMS Rate or CMT Rate, on the applicable CMS Interest Determination Date or CMT Interest Determination Date (each as defined, respectively, in Section 3(b) and (c) below), as the case may be, corresponding to such Interest Reset Date.
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However, the Calculation Agent need not wait until the Calculation Date to determine interest rates described in clause (i) above if the rate information it needs to make such determination in the manner specified in the applicable provisions of Section 3(g) hereof is available from the relevant sources specified in such applicable provisions. Upon request of the Holder to the Calculation Agent, the Calculation Agent will provide the interest rate then in effect on this Security and, if determined, the interest rate that will become effective on the next Interest Reset Date.
(b) Determination of CMS Rate. If the Base Rate specified on the face hereof is the CMS Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the rate appearing on the Reuters Screen ICESWAP1 Page for U.S. dollar swaps having a maturity equal to the Index Maturity specified on the face hereof as of approximately 11:00 A.M., New York City time on the second U.S. Government Securities Business Day immediately preceding such Interest Reset Date (the “CMS Interest Determination Date”).
If the Calculation Agent determines on a CMS Interest Determination Date that the CMS Rate has been discontinued, then the Calculation Agent will use a substitute or successor rate for such discontinued rate that it has determined in its sole discretion is most comparable to the CMS Rate, provided that if the Calculation Agent determines there is an industry-accepted successor rate for such discontinued rate, then the Calculation Agent shall use such successor rate. If the Calculation Agent has determined a substitute or successor rate in accordance with the foregoing, the Calculation Agent in its sole discretion may determine the Business Day Convention, the applicable Business Days and the CMS Interest Determination Date to be used, and any other relevant methodology for calculating such substitute or successor rate, including any adjustment needed to make such substitute or successor rate comparable to the CMS Rate, in a manner that is consistent with any industry-accepted practices for such substitute or successor rate.
Unless the Calculation Agent uses a substitute or successor rate as so provided, if the CMS Rate cannot be determined in the manner described above, then the CMS Rate for that CMS Interest Determination Date will be determined by the Calculation Agent, after consulting such sources as it deems comparable to the foregoing display page, or any other source it deems reasonable, in its sole discretion.
(c) Determination of CMT Rate. If the Base Rate specified on the face hereof is the CMT Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the CMT Rate determined as described below. “CMT Rate” means:
(i) If the Designated CMT Reuters Screen Page is the Reuters Screen FRBCMT Page, then the CMT Rate for such Interest Reset Date will be the yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as set forth in H.15 under the caption “U.S. government securities/Treasury constant maturities”, as such yield is displayed on the Designated CMT Reuters Screen Page on the second U.S. Government Securities Business Day immediately preceding such Interest Reset Date (the “CMT Interest Determination Date”).
(A) | If the applicable rate described in clause (i) above is not displayed on the Designated CMT Reuters Screen Page, then the CMT Rate will be the rate for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as published in H.15 under the caption “U.S government securities/Treasury constant maturities”. |
(B) | If the applicable rate described in clause (A) above does not appear in H.15, then the CMT Rate for such Interest Reset Date will be the Treasury constant maturity rate, for the Designated CMT Index Maturity that: |
a. | is published by the Board of Governors of the Federal Reserve System, or the U.S. Department of the Treasury, and |
b. | is determined by the Calculation Agent to be comparable to the applicable rate that would have otherwise been published in H.15. |
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(C) | If, on the CMT Interest Determination Date, the Board of Governors of the Federal Reserve System or the U.S. Department of the Treasury does not publish a yield on Treasury securities at “constant maturity” for the Designated CMT Index Maturity, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market bid rates for the most recently issued Treasury securities having an original maturity of approximately the Designated CMT Index Maturity, having a remaining term to maturity of not less than the Designated CMT Index Maturity minus one year and in a Representative Amount: as of approximately 3:30 P.M., New York City time, on such CMT Interest Determination Date, quoted by three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two such bid rates are provided, the CMT Rate will be based on the arithmetic mean of the bid prices provided, and neither the highest nor lowest of such quotations will be eliminated. |
(D) | If the Calculation Agent is unable to obtain three quotations of the kind described in clause (C) above, the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market offered rates for Treasury securities having an original maturity longer than the Designated CMT Index Maturity, having a remaining term to maturity closest to the Designated CMT Index Maturity and in a Representative Amount, as of approximately 3:30 p.m., New York City time, on such CMT Interest Determination Date, of three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two of these primary dealers are quoting, then the CMT Rate for such Interest Reset Date will be based on the arithmetic mean of the bid rates so obtained, and neither the highest nor the lowest of such quotations will be disregarded. If two Treasury securities with an original maturity longer than the CMT Designated Index Maturity have remaining terms to maturity that are equally close to the Designated CMT Index Maturity, the Calculation Agent will obtain quotations for the Treasury securities with the shorter original term to maturity. |
(E) | If two or fewer primary dealers selected by the Calculation Agent are quoting as described in clause (D) above, then the CMT Rate for such Interest Reset Date shall be determined by the Calculation Agent in its sole discretion, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate the rate for Treasury securities at “constant maturity” or any of the foregoing bid rates. |
(ii) if the Designated CMT Reuters Screen Page is the Reuters Screen FEDCMT Page, the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity as set forth in H.15 opposite the heading “U.S government securities/Treasury constant maturities” for the week preceding such Interest Reset Date, as such average is displayed on the Designated CMT Reuters Screen Page for the week preceding such Interest Reset Date.
(A) | If the applicable average described in clause (ii) above is not displayed on the Designated CMT Reuters Screen Page, then the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period of the Designated CMT Index Maturity and for the week preceding such Interest Reset Date as published in H.15 opposite the heading “U.S. government securities/Treasury constant maturities”. |
(B) | If the applicable average described in clause (A) above does not appear on the Designated Reuters Screen Page or in H.15, then the CMT Rate for such Interest Reset Date will be the one-week average yield for Treasury securities at “constant maturity” for a period equal to the Designated CMT Index Maturity as otherwise announced by the Federal Reserve Bank of New York for the week preceding such Interest Reset Date. |
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(C) | If the Federal Reserve Bank of New York does not publish a one-week average yield for Treasury securities at “constant maturity” for a period equal to the Designated CMT Index Maturity for the week prior to such Interest Reset Date, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market bid rates for the most recently issued Treasury securities having an original maturity of approximately the Designated CMT Index Maturity, having a remaining term to maturity of not less than the Designated CMT Index Maturity minus one year and in a Representative Amount: as of approximately 3:30 P.M., New York City time, on the CMT Interest Determination Date, quoted by three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting these bid rates, the Calculation Agent will request quotations from five primary dealers and will disregard the highest quotation or, if there is equality, one of the highest, and the lowest quotation or, if there is equality, one of the lowest. If fewer than five but more than two such bid rates are provided, the CMT Rate will be based on the arithmetic mean of the bid prices provided, and neither the highest nor lowest of such quotations will be eliminated. |
(D) | If the Calculation Agent is unable to obtain three quotations of the kind described in clause (C) above, then the CMT Rate for such Interest Reset Date will be the yield to maturity of the arithmetic mean of the secondary market offered rates for Treasury securities having an original maturity longer than the Designated CMT Index Maturity, having a remaining term to maturity closest to the Designated CMT Index Maturity and in a Representative Amount, as of approximately 3:30 p.m., New York City time, on CMT Interest Determination Date, of three primary U.S. government securities dealers in New York City selected by the Calculation Agent. In selecting such bid rates, the Calculation Agent will request quotations from five such primary dealers and will disregard the highest quotation — or, if there is equality, one of the highest — and the lowest quotation — or, if there is equality, one of the lowest. If fewer than five but more than two of these primary dealers are quoting, then the CMT Rate for such Interest Reset Date will be based on the arithmetic mean of the bid rates so obtained, and neither the highest nor the lowest of such quotations will be disregarded. If two Treasury securities with an original maturity longer than the CMT Designated Index Maturity have remaining terms to maturity that are equally close to the Designated CMT Index Maturity, the Calculation Agent will obtain quotations for the Treasury securities with the shorter original term to maturity. |
If two or fewer primary dealers selected by the Calculation Agent are quoting as described in clause (D) above, the CMT Rate for such Interest Reset Date shall be the rate determined by the Calculation Agent in its sole discretion, after consulting such sources as it deems comparable to any of the foregoing quotations or display page, or any such source as it deems reasonable from which to estimate the one-week average for Treasury securities at “constant maturity” or any of the foregoing bid rates.
(d) Determination of Compounded SOFR. If the Base Rate specified on the face hereof is Compounded SOFR, Compounded SOFR with respect to an Interest Period will be calculated as follows:
“Compounded SOFR” means the result of the following formula:
where:
“d0”, for any Interest Period, is the number of U.S. Government Securities Business Days in the relevant Interest Period.
“i” is a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Interest Period.
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“SOFRi”, for any day “i” in the relevant Interest Period, is a reference rate equal to SOFR in respect of that day.
“ni”, for any day “i” in the relevant Interest Period, is the number of calendar days from, and including, such U.S. Government Securities Business Day “i” to, but excluding, the following U.S. Government Securities Business Day.
“d” is the number of calendar days in the relevant Interest Period.
“SOFR” means, with respect to any day, the rate determined by the Calculation Agent in accordance with the following provisions:
(1) | the Secured Overnight Financing Rate for trades made on such day that appears at approximately 3:00 p.m. (New York City time) on the NY Federal Reserve’s Website on the U.S. Government Securities Business Day immediately following such U.S. Government Securities Business Day; or |
(2) | if the rate specified in (1) above does not so appear, unless a Benchmark Transition Event and its related Benchmark Replacement Date have occurred as described in (3) below, the Secured Overnight Financing Rate published on the NY Federal Reserve’s Website for the first preceding U.S. Government Securities Business Day for which the Secured Overnight Financing Rate was published on the NY Federal Reserve’s Website; or |
(3) | if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the relevant Interest Payment Date for such Interest Period, the Calculation Agent will use the Benchmark Replacement to determine the rate and for all other purposes relating to the Security. |
In connection with the SOFR definition above, the following definitions apply:
“Benchmark” means, initially, SOFR; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; or |
(2) | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
(3) | the sum of: (a) the alternate rate of interest that has been selected by the Calculation Agent as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) | the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
(2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
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(3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Calculation Agent giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes that the Calculation Agent decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Calculation Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Calculation Agent determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Calculation Agent determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
(2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; |
(2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
(3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“ISDA” means the International Swaps and Derivatives Association, Inc. or any successor thereto.
“ISDA Definitions” means the 2006 ISDA Definitions published by ISDA, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
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“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“NY Federal Reserve” means the Federal Reserve Bank of New York.
“NY Federal Reserve’s Website” means the website of the NY Federal Reserve, currently at http://www.newyorkfed.org, or any successor website of the NY Federal Reserve or the website of any successor administrator of the Secured Overnight Financing Rate.
“Reference Time” with respect to any determination of the Benchmark means the time determined by the Calculation Agent in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the NY Federal Reserve, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NY Federal Reserve or any successor thereto.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Neither the Trustee nor the Paying Agent will have any liability for any determination made by the Calculation Agent in connection with a Benchmark Transition Event or a Benchmark Replacement.
In no event shall the Trustee or the Paying Agent be responsible for determining if a Benchmark Transition Event has occurred or any substitute for SOFR, or for making any adjustments to any alternative benchmark or spread thereon, the business day convention, interest determination dates or any other relevant methodology for calculating any such substitute or successor benchmark. In connection with the foregoing, the Trustee and the Paying Agent will be entitled to conclusively rely on any determinations made by the Calculation Agent.
(e) Determination of Federal Funds Rate. If the Base Rate specified on the face hereof is the Federal Funds Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate equal to the rate, on such Interest Reset Date, as set forth in H.15 opposite the heading “Federal funds (effective)”, as that rate is displayed on the Reuters Screen FEDFUNDS1 Page for that day. If the Federal Funds Rate cannot be determined as described above, the following procedures will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on the Reuters Screen FEDFUNDS1 Page by approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, the Federal Funds Rate for such Interest Reset Date will be the rate published on H.15 under the heading “Federal funds (effective)”, or another recognized electronic source used for displaying that rate.
(ii) If the rate is not displayed on the Reuters Screen FEDFUNDS1 Page and does not appear in H.15 at approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, then the Federal Funds (Effective) Rate for such Interest Reset Date will be the rate for the first day preceding such Interest Reset Date for which such rate is set forth in H.15 opposite the caption “Federal funds (effective)”, as such rate is displayed on the Reuters Screen FEDFUNDS1 Page.
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(f) Determination of Prime Rate. If the Base Rate specified on the face hereof is the Prime Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate equal to the rate for such Interest Reset Date published in H.15, or another recognized electronic source used for displaying that rate, opposite the heading “Bank prime loan”. If the Prime Rate cannot be determined as described above, the following procedures will apply in determining the Prime Rate:
(i) If the rate described above does not appear in H.15 or another recognized electronic source by approximately 5:00 P.M., New York City time, on the day that is one New York City Banking Day following such Interest Reset Date, then the Prime Rate will be the rate for the day first preceding such Interest Reset Date for which such rate is set forth in H.15 opposite the caption “Bank prime rate”.
(g) Determination of Treasury Rate. If the Base Rate specified on the face hereof is the Treasury Rate, the Base Rate that takes effect on any Interest Reset Date shall be the rate determined as specified in the applicable Pricing Supplement or, if no method of determination is so specified, the rate on such Interest Reset Date (if direct obligations of the United States (“Treasury Bills”) have been auctioned on such day), as that rate appears on the Reuters Screen USAUCTION10 Page or the Reuters Screen USAUCTION11 Page opposite the Index Maturity under the heading “INVEST RATE”. If the Treasury Rate cannot be determined as described above, the following procedures will apply in determining the Treasury Rate:
(i) If the rate described above does not appear on either the Reuters Screen USAUCTION10 or USAUCTION11 Page on the Calculation Date (unless the calculation is made earlier and the rate is available from that source at that time), but Treasury Bills having the Index Maturity have been auctioned during the relevant Interest Period, then the Treasury Rate will be the Bond Equivalent Yield (as defined in Section 3(j) below) of the rate, for such Interest Reset Date, as published in H.15, or another recognized electronic source used for displaying that rate, for that day and for the Index Maturity, under a heading indicating that such rate is the “auction high” rate for Treasury Bills.
(ii) If the rate cannot be determined as described in clause (i) above, then the Treasury Rate will be the Bond Equivalent Yield of the auction rate for Treasury Bills with a remaining maturity equal to the Index Maturity as announced by the United States Treasury.
(iii) If no such auction is held for any period of seven consecutive calendar days ending on, and including, any Friday and an Interest Reset Date occurred during such period, then the Treasury Rate for such Interest Reset Date will be the Bond Equivalent Yield of the rate for the date on which such auction would have been ordinarily been held in accordance with the usual practices of the United Stated Treasury of the rate set forth in H.15, or another recognized electronic source used for displaying that rate, under the heading “U.S. government securities/Treasury bills (secondary market)”.
(iv) If the rate described in clause (iii) above does not appear in H.15 or another recognized electronic source on such Calculation Date (unless the calculation is made earlier and the rate is available from that source at that time), the Treasury Rate will be the Bond Equivalent Yield of the arithmetic mean of the following secondary market bid rates for the issue of Treasury Bills with a remaining maturity closest to the Index Maturity: the rates bid as of approximately 3:30 P.M., New York City time, on such Interest Reset Date, by primary U.S. government securities dealers in New York City selected by the Calculation Agent.
(v) If no quotation is provided as described in the preceding paragraph, then the Calculation Agent, after consulting such sources as it deems comparable to any of the foregoing secondary market bids or any display page or other U.S. government publication or source, or any other source as it deems reasonable from which to estimate the Treasury Bills auction rate or any of the foregoing secondary market bid rates, shall determine the Treasury Rate for such Interest Reset Date in its sole discretion.
(h) Maximum Limits. Notwithstanding the foregoing, the rate at which interest accrues on this Security (i) shall not at any time be higher than the Maximum Rate, if any, or less than the Minimum Rate, if any, specified on the face hereof, in each case on an accrual basis, and (ii) shall not at any time be higher than the Maximum Rate permitted by New York law, as the same may be modified by United States law of general application.
(i) Calculation of Interest. Payments of interest hereon with respect to any Interest Payment Date or at the Maturity of the principal hereof will include interest accrued to but excluding the next date to which interest will accrue (which may be the Interest Payment Date depending on the Business Day Convention) or the date of such maturity, as the case may be.
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With respect to this Security (unless the Base Rate is Compounded SOFR), accrued interest from the date of issue or from the last date to which interest has accrued shall be calculated by the Calculation Agent by multiplying the principal amount by an accrued interest factor for the Interest Period. Such accrued interest factor shall be expressed as a decimal and computed by multiplying the interest rate for such Interest Period (also expressed as a decimal) by the Day Count Convention specified on the face hereof for such Interest Period.
With respect to this Security if the Base Rate is Compounded SOFR, accrued interest from the date of issue or from the last date to which interest has accrued shall be calculated by the Calculation Agent by multiplying the principal amount by the sum of the Interest Factors calculated for each day during such Interest Period. The “Interest Factor” for each such day will be computed by dividing the interest rate applicable to that day by 360. The interest rate applicable to each such day will be determined according to Section 3(d) above.
All percentages resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to this Security will be rounded upward or downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.
(j) Definitions of Calculation Terms. As used in this Security, the following terms have the meanings set forth below:
“Bond Equivalent Yield” means a yield expressed as a percentage and calculated in accordance with the following formula:
where
● | “D” equals the annual rate for Treasury Bills quoted on a bank discount basis and expressed as a decimal; |
● | “N” equals 365 or 366, as the case may be; and |
● | “M” equals the actual number of days in the applicable Interest Reset Period. |
The “Calculation Date” means the Business Day immediately preceding the date on which interest will next be paid on this Security.
“H.15” means statistical release of H.15, available through the website of the Board of Governors of the Federal Reserve System, at https://www.federalreserve.gov/releases/h15, or any successor site or publication.
“Interest Period” means, with respect to a Security other than where the Base Rate is Compounded SOFR, the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), to but excluding the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof). With respect to a Security where the Base Rate is Compounded SOFR, “Interest Period” means the period from and including the Original Issue Date, or the last date to which interest has been paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof) to, but excluding, the next date to which interest will be paid (which may be an Interest Payment Date, depending on the Business Day Convention specified on the face hereof), provided that Compounded SOFR for each calendar day from, and including, the Rate Cut-Off Date for each Interest Period to, but excluding, the Interest Payment Date for such Interest Period will equal SOFR in respect of the Rate Cut-Off Date. The Rate Cut-Off Date for each Interest Period is as specified on the face hereof.
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“Representative Amount” means an amount that, in the Calculation Agent’s judgment, is representative of a single transaction in the relevant market at the relevant time.
“Reuters Screen” means the display on the Reuters 3000 Xtra service or any successor or replacement service, on the page or pages, or any successor or replacement page or pages on that service.
(k) Calculation Agent and Exchange Rate Agent. The Issuers have initially appointed the institutions named on the face of this Security as Calculation Agent and Exchange Rate Agent, respectively, to act as such agents with respect to this Security, but the Issuers may, in their sole discretion, appoint any other institution (including any Affiliate of the Issuers) to serve as any such agent from time to time. The Issuers will give the Trustee prompt written notice of any change in any such appointment. Insofar as this Security provides for any such agent to obtain rates, quotes or other data from a bank, dealer or other institution for use in making any determination hereunder, such agent may do so from any institution or institutions of the kind contemplated hereby notwithstanding that any one or more of such institutions are any such agent, Affiliates of any such agent or Affiliates of the Issuers.
All determinations made by the Calculation Agent or the Exchange Rate Agent may be made by such agent in its sole discretion and, absent manifest error, shall be conclusive for all purposes and binding on the Holder of this Security and the Issuers. Neither the Calculation Agent nor the Exchange Rate Agent shall have any liability therefor.
(l) Other Definitions.
“Business Day” means, for this Security, a day that meets the requirements set forth in each of clauses (i) through (iii) below, in each case to the extent such requirements apply to this Security as specified below:
(i) is a New York Business Day (as defined below);
(ii) if the Specified Currency for payment of principal of or interest on this Security is other than U.S. dollars or euro, is also a day on which banking institutions are not authorized or obligated by law, regulation or executive order to close in the principal financial center of the country issuing the Specified Currency;
(iii) if the Specified Currency for payment of principal of or interest on this Security is euro, is also a Euro Business Day; and
(iv) solely with respect to any payment or other action to be made or taken at any Place of Payment outside The City of New York, is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in such Place of Payment generally are authorized or obligated by law, regulation or executive order to close.
“Day Count Convention” means:
(v) if “1/1 (ISDA)”, 1;
(vi) if “Actual/Actual (ISDA)” or “Act/Act (ISDA)”, the actual number of days in the Interest Period divided by 365 (or, if any portion of that Interest Period falls in a leap year, the sum of (1) the actual number of days in that portion of the Interest Period falling in a leap year divided by 366 and (2) the number of days in that portion of the Interest Period falling in a non-leap year divided by 365);
(vii) if “Actual/Actual (ICMA)”, the number of days in the Interest Period, including February 29 in a leap year, divided by the product of (1) the actual number of days in such Interest Period and (2) the number of Interest Periods in the calendar year;
(viii) if “Actual/Actual (Bond)”, the number of calendar days in the Interest Period, divided by the number of calendar days in the Interest Period multiplied by the number of Interest Periods in the calendar year;
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(ix) if “Actual/Actual (Euro)”, the number of calendar days in the Interest Period divided by 365 or, if the Interest Period includes February 29, 366;
(x) if “Actual/365 (Fixed)”, “Act/365 (Fixed)”, “A/365 (Fixed)” or “A365F”, the actual number of days in the Interest Period divided by 365;
(xi) if “Actual/360 (ISDA)”, “Act/360 (ISDA)” or “A/360 (ISDA)”, the actual number of days in the Interest Period divided by 360;
(xii) if “Actual/360 (ICMA)”, the number of calendar days in the period, including February 29 in a leap year, divided by 360 days;
(xiii) if “30/360”, the calculation shall be made assuming a 360-day year of 12 30-day months;
(xiv) if “30/360 (ISDA)”, “360/360 (ISDA)” or “Bond Basis (ISDA)”, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless such number would be 31, in which case D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless such number would be 31 and D1 is greater than 29, in which case D2 will be 30; and |
(xv) if “30E/360”, “30E/360 (ISDA)” or “Eurobond Basis”, the number of days in the Interest Period in respect of which payment is being made divided by 360, calculated on a formula basis as follows:
where
● | “Y1” is the year, expressed as a number, in which the first day of the Interest Period falls; |
● | “Y2” is the year, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “M1” is the calendar month, expressed as a number, in which the first day of the Interest Period falls; |
● | “M2” is the calendar month, expressed as a number, in which the day immediately following the last day included in the Interest Period falls; |
● | “D1” is the first calendar day, expressed as a number, of the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is the last day of February, in which cases D1 will be 30; and |
● | “D2” is the calendar day, expressed as a number, immediately following the last day included in the Interest Period, unless (1) such number would be 31, or (2), if “30E/360 (ISDA)” is specified, that day is also the last day of February and not the maturity date, in which cases D2 will be 30. |
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“EMU Countries” means, at any time, the countries (if any) then participating in the third stage of the European Economic and Monetary Union pursuant to the treaty establishing the European Community, as it may be amended from time to time.
“Euro Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System, or any successor system, is open for business.
“New York Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City generally are authorized or obligated by law, regulation or executive order to close.
“New York City Banking Day” means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in New York City.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income department of its members be closed for the entire day for purposes of trading in U.S. government securities.
References in this Security to U.S. dollars shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the United States of America.
References in this Security to the euro shall mean, as of any time, the coin or currency (if any) that is then legal tender for the payment of public and private debts in all EMU Countries.
References in this Security to a particular currency other than U.S. dollars and euro shall mean, as of any time, the coin or currency that is then legal tender for the payment of public and private debts in the country issuing such currency on the Original Issue Date.
(m) Sources and Corrections. References herein to a Base Rate as set forth on a display page, other published source, information vendor or other vendor officially designated by the sponsor of that rate, if there is a successor source for the display page, other published source, information vendor or other official vendor, include that successor source as applicable as determined by the Calculation Agent. References herein to a particular heading or headings on any such sources, include any successor or replacement heading or headings as determined by the Calculation Agent.
If the Base Rate is based on information obtained from a Reuters Screen, such rate will be subject to the corrections, if any, published on such Reuter’s Screen within one hour of the time such information was first displayed on such source. If the Base Rate is based on information obtained from H.15, such rate will be subject to the corrections, if any, published by that source within 30 days of the day such rate was first published in that source.
4. | Redemption at the Company’s Option |
If a Redemption Commencement Date or the occurrence of a specified event giving rise to redemption is specified on the face hereof, this Security shall be redeemable at the option of the Company before the Maturity of the principal thereof. If a Redemption Commencement Date or redemption event is so specified, and unless otherwise specified on the face hereof, this Security is subject to redemption upon the notice specified on the face hereof or, if no notice period is specified, upon not less than 30 days’ nor more than 60 days’ notice, at any time and from time to time on or after the Redemption Commencement Date, in each case as a whole or in part, at the election of the Company and at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Security to be redeemed), together with accrued interest to the redemption date, but interest installments due on or prior to such redemption date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record on the relevant record dates referred to on the face hereof, all as provided in the 2016 Indenture.
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5. | Repayment at the Holder’s Option |
Except as otherwise may be provided on the face hereof, if one or more Repayment Dates are specified on the face hereof, this Security will be repayable in whole or in part in an amount equal to any Authorized Denomination (provided that the remaining principal amount of any Security surrendered for partial repayment shall at least equal an Authorized Denomination), on any such Repayment Date, in each case at the option of the Holder and at the applicable Repayment Price specified on the face hereof (expressed as a percentage of the principal amount to be repaid), together with accrued interest to the applicable Repayment Date (but interest installments due on or prior to such Repayment Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Date as provided in the 2016 Indenture). If this Security provides for more than one Repayment Date and the Holder exercises its option to elect repayment, the Holder shall be deemed to have elected repayment on the earliest Repayment Date after all conditions to such exercise have been satisfied, and references herein to the applicable Repayment Date shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security to be repaid, the Company must receive at the applicable address of the Trustee set forth below (or at such other place or places of which the Company shall from time to time notify the Holder of this Security), on any Business Day not later than the 15th, and not earlier than the 25th, calendar day prior to the applicable Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), either (i) this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of this Security, (b) the principal amount of this Security and the amount of this Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that the Company will receive this Security, with the form below entitled “Option to Elect Repayment” duly completed and signed, not later than five Business Days after the date of such facsimile transmission or letter (provided that this Security and form duly completed and signed are received by the Company by such fifth Business Day). Any such election shall be irrevocable. The address to which such deliveries are to be made is The Bank of New York Mellon, Attention: Corporate Trust Administration, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262 (or at such other places as the Company or the Trustee shall notify the Holder of this Security). All questions as to the validity, eligibility (including time of receipt) and acceptance of any Security for repayment will be determined by the Company, whose determination will be final and binding. Notwithstanding the foregoing, (x) if this Security is a Global Security, the option of the Holder to elect repayment may be exercised in accordance with the Applicable Procedures of the Depositary for this Security at least 15 calendar days prior to the applicable Repayment Date and (y) whether or not this Security is a Global Security, the option of the Holder to elect repayment may be exercised in any such manner as the Company may approve.
6. | Transfer and Exchange |
As provided in the 2016 Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuers in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the 2016 Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor, of a different Authorized Denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuers may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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Prior to due presentment of this Security for registration of transfer, the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuers, the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to the provisions of the 2016 Indenture relating to Global Securities, including the limitations in Section 3.05 thereof on transfers and exchanges of Global Securities.
7. | Defeasance |
The 2016 Indenture contains provisions for Defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the 2016 Indenture. Unless otherwise specified on the face hereof, both of such provisions are applicable to this Security.
8. | Subordination |
This Security and all other obligations of the Issuers hereunder will constitute part of the subordinated debt of the Issuers, will be issued under the 2016 Indenture and will be subordinate and junior in right of payment, to the extent and in the manner set forth in the 2016 Indenture, to all “Senior Debt” of the Issuers. The 2016 Indenture defines “Senior Debt” as all indebtedness and obligations (other than the Securities) of, or guaranteed or assumed by, an Issuer that are for borrowed money or are evidenced by bonds, debentures, notes or other similar instruments, whether outstanding on the date of the 2016 Indenture or thereafter created, incurred, assumed or guaranteed, and all amendments, renewals, extensions, modifications and refundings of such indebtedness and obligations, unless in any such case the instrument by which such indebtedness or obligations are created, incurred, assumed or guaranteed by an Issuer, or are evidenced, provides that they are subordinate, or are not superior, in right of payment to the Securities.
9. | Remedies |
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the 2016 Indenture.
As provided in and subject to the provisions of the 2016 Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the 2016 Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 51% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
If so provided pursuant to the terms of any specific Securities, the above-referenced provisions of the 2016 Indenture regarding the ability of Holders to waive certain defaults, or to request the Trustee to institute proceedings (or to give the Trustee other directions) in respect thereof, may be applied differently with regard to such Securities.
No reference herein to the 2016 Indenture and no provision of this Security or of the 2016 Indenture shall alter or impair the obligation of the Issuers, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
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10. | Modification and Waiver |
The 2016 Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuers and the rights of the Holders of the Securities to be affected under the 2016 Indenture at any time by the Issuers and the Trustee with the consent of the Holders of a majority in principal amount of all Securities at the time Outstanding to be affected, considered together as one class for this purpose (such Securities to be affected may be Securities of the same or different series and, with respect to any series, may comprise fewer than all the Securities of such series). The 2016 Indenture also contains provisions (i) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding to be affected under the 2016 Indenture, considered together as one class for this purpose (such affected Securities may be Securities of the same or different series and, with respect to any particular series, may comprise fewer than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with certain provisions of the 2016 Indenture and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding of any series to be affected under the 2016 Indenture (with each such series considered separately for this purpose), on behalf of the Holders of all Securities of such series, to waive certain past defaults under the 2016 Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. | Governing Law |
This Security and the 2016 Indenture shall be governed by and construed in accordance with the laws of the State of New York, but without regard to principles of conflicts of laws.
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CUSIP
NO.
ORIGINAL ISSUE DATE:
JEFFERIES
GROUP LLC
JEFFERIES GROUP CAPITAL FINANCE INC.
MEDIUM-TERM SUBORDINATED NOTE
OPTION TO ELECT REPAYMENT
TO
BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Issuers to repay the Security referred to in this notice (or the portion thereof specified below) at the applicable Repayment Price, together with interest to the Repayment Date, all as provided for in such Security, to the undersigned, whose name, address and telephone number are as follows:
(please print name of the undersigned) |
(please print address of the undersigned) |
(please print telephone number of the undersigned) |
If such Security provides for more than one Repayment Date, the undersigned requests repayment on the earliest Repayment Date after the requirements for exercising this option have been satisfied, and references in this notice to the Repayment Date mean such earliest Repayment Date. Terms used in this notice that are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable address of the Trustee set forth below or at such other place or places of which the Company or the Trustee shall from time to time notify the Holder of such Security, any Business Day not later than the 15th or earlier than the 25th calendar day prior to the Repayment Date (or, if either such calendar day is not a Business Day, the next succeeding Business Day), (i) such Security, with this “Option to Elect Repayment” form duly completed and signed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc., a commercial bank or a trust company in the United States of America setting forth (a) the name, address and telephone number of the Holder of such Security, (b) the principal amount of such Security and the amount of such Security to be repaid, (c) a statement that the option to elect repayment is being exercised thereby and (d) a guarantee stating that such Security to be repaid with the form entitled “Option to Elect Repayment” on the addendum to the Security duly completed and signed will be received by the Company not later than five Business Days after the date of such facsimile transmission or letter (provided that such Security and form duly completed and signed are received by the Company by such fifth Business Day). The address to which such deliveries are to be made is:
The
Bank of New York Mellon
Attention: Corporate Trust Administration
500 Ross Street, 12th Floor
Pittsburgh,
PA 15262
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of Security continued on next page)
or at such other places as the Company or the Trustee shall notify the Holder of such Security.
If less than the entire principal amount of such Supplemental Obligation is to be repaid, specify the portion thereof (which shall equal any Authorized Denomination) that the Holder elects to have repaid:
and specify the denomination or denominations (which shall equal any Authorized Denomination) of the Security or Securities to be issued to the Holder in respect of the portion of such Security not being repaid (in the absence of any specification, one Security will be issued in respect of the portion not being repaid):
Date: | Notice: The signature to this Option to Elect Repayment must correspond with the name of the Holder as written on the face of such Security in every particular without alteration or enlargement or any other change whatsoever. |
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations.
TEN COM — as tenants in common
TEN ENT — as tenants by the entireties
JT TEN — as joint tenants with the right of survivorship and not as tenants in common
UNIF GIFT MIN ACT – | ______ | Custodian | ______ | |
(Cust) | (Minor) | |||
under Uniform Gifts to Minors | ||||
Act | ||||
(State) | ||||
Additional abbreviations may also be used though not in the above list. | ||||
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ASSIGNMENT
27
Exhibit 5.1
|
Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5300 +1 212 839 5599 Fax
AMERICA ● ASIA PACIFIC ● EUROPE |
February 1, 2022
Jefferies Group LLC
520 Madison Avenue
New York, NY 10022
Jefferies Group Capital Finance Inc.
520 Madison Avenue
New York, NY 10022
Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the “Registration Statement”) being filed by Jefferies Group LLC, a Delaware limited liability company (the “Company”), and Jefferies Group Capital Finance Inc., a Delaware corporation (the “Co-Issuer,” and each of the Company and the Co-Issuer, an “Issuer” and, collectively, the “Issuers”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of an unlimited amount of:
(i) debt securities of the Issuers (the “Debt Securities”), which may be unsecured senior debt securities (the “Senior Debt Securities”) and/or unsecured subordinated debt securities (the “Subordinated Debt Securities”); and
(ii) warrants (the “Warrants”).
The Debt Securities and the Warrants are collectively referred to herein as the “Securities.”
Unless otherwise specified in the applicable prospectus supplement:
(1) the Senior Debt Securities will be issued under the indenture, dated as of May 26, 2016 (the “Senior Indenture”), between the Issuers and The Bank of New York Mellon, as trustee (the “Senior Trustee”);
(2) the Subordinated Debt Securities will be issued under one or more indentures (each, a “Subordinated Indenture”) to be entered into between the Issuers and a trustee (the “Subordinated Trustee”); and
(3) the Warrants will be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the Issuers and a warrant agent (the “Warrant Agent”);
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships. |
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
February 1, 2022
Page 2
in each case substantially in the form that has been or will be filed as an exhibit to the Registration Statement. The Senior Indenture, each Subordinated Indenture and each Warrant Agreement, as the same may be amended or supplemented from time to time after the date hereof, are collectively referred to herein a the “Opinion Documents.” References herein to a “prospectus supplement” shall be read to include any supplement to the prospectus in the Registration Statement, including without limitation any document referred to as a product supplement, index supplement or pricing supplement.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the exhibits thereto, the LLC operating agreement of the Company, as amended to the date hereof (the “Company LLC Agreement”), the certificate of incorporation of the Co-Issuer, as amended to the date hereof (the “Co-Issuer Charter”), the by-laws of the Co-Issuer, as amended to the date hereof (the “Co-Issuer By-Laws”), the resolutions (the “Company Resolutions”) adopted by the board of directors of the Company (the “Company Board”) relating to the Registration Statement and the resolutions (the “Co-Issuer Resolutions” and, together with the Company Resolutions, the “Resolutions”) adopted by the board of directors of the Co-Issuer (the “Co-Issuer Board”) relating to the Registration Statement. We have also examined originals, or copies of originals certified to our satisfaction, of such other agreements, documents, certificates and statements of the Issuers and others, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Issuers.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1. Each issue of Warrants covered by the Registration Statement will constitute valid and binding obligations of each Issuer when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) the prospectus supplement or prospectus supplements with respect to such issue of Warrants shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Warrant Agreement relating to such issue of Warrants shall have been duly authorized, executed and delivered by each of the Issuers and duly executed and delivered by the Warrant Agent named in the Warrant Agreement; (iv) the Company Board and the Co-Issuer Board or in each case a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Company LLC Agreement, the Co-Issuer Charter, the Co-Issuer By-Laws and the Resolutions authorizing the execution and delivery of the Warrant Agreement and the issuance and sale of such issue of Warrants; and (v) certificates representing such issue of Warrants shall have been duly executed, countersigned and issued in accordance with such Warrant Agreement and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
February 1, 2022
Page 3
2. The Senior Debt Securities of each series or issuance covered by the Registration Statement will constitute valid and binding obligations of each Issuer when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) the prospectus supplement or prospectus supplements with respect to such series of Senior Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) all necessary corporate action shall have been taken by each Issuer to authorize the form, terms, execution, delivery, performance, issuance and sale of such series or issuance of Senior Debt Securities as contemplated by the Registration Statement, the prospectus supplement or prospectus supplements relating to such Senior Debt Securities and the Senior Indenture and to authorize the execution, delivery and performance of any supplemental indenture or officers’ certificate(s) establishing the form and terms of such series of Senior Debt Securities as contemplated by the Senior Indenture; (iv) any applicable supplemental indenture or officers’ certificate(s) establishing the form and terms of such series of Senior Debt Securities shall have been duly executed and delivered by the Issuers and, in the case of a supplemental indenture, the Senior Trustee, in each case in accordance with the provisions of the Company LLC Agreement, the Co-Issuer Charter, the Co-Issuer By-Laws, final resolutions of the Company Board and the Co-Issuer Board or in each case a duly authorized committee thereof and the Senior Indenture; and (v) the certificates evidencing the Senior Debt Securities of such series shall have been duly executed and delivered by the Issuers, authenticated by the Senior Trustee and issued, all in accordance with the Company LLC Agreement, the Co-Issuer Charter, the Co-Issuer By-Laws, final resolutions of the Board or in each case a duly authorized committee thereof, the Senior Indenture and any supplemental indenture or officers’ certificate(s) establishing the form and terms of the Senior Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
February 1, 2022
Page 4
3. The Subordinated Debt Securities of each series or issuance covered by the Registration Statement will constitute valid and binding obligations of each Issuer when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the applicable Subordinated Indenture (including any necessary supplemental indenture), if not already so qualified, shall have been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”); (ii) a prospectus supplement or prospectus supplements with respect to such series of Subordinated Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the applicable Subordinated Indenture shall have been duly authorized, executed and delivered by the Issuers and the applicable Subordinated Trustee; (iv) all necessary corporate action shall have been taken by each Issuer to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Subordinated Debt Securities as contemplated by the Registration Statement, the prospectus supplement or prospectus supplements relating to such Subordinated Debt Securities and the applicable Subordinated Indenture and to authorize the execution, delivery and performance of any supplemental indenture or officers’ certificate establishing the form and terms of such series of Subordinated Debt Securities as contemplated by the applicable Subordinated Indenture; (v) any supplemental indenture or officers’ certificate(s) establishing the form and terms of such series of Subordinated Debt Securities shall have been duly executed and delivered by the Issuers and, in the case of a supplemental indenture, the applicable Subordinated Trustee, in each case in accordance with the provisions of the Company LLC Agreement, the Co-Issuer Charter, the Co-Issuer By-Laws, final resolutions of the Company Board and the Co-Issuer Board or in each case a duly authorized committee thereof and the applicable Subordinated Indenture; and (vi) the certificates evidencing the Subordinated Debt Securities of such series shall have been duly executed and delivered by the Issuers, authenticated by the applicable Subordinated Trustee and issued, all in accordance with the Company LLC Agreement, the Co-Issuer Charter, the Co-Issuer By-Laws, final resolutions of the Company Board and the Co-Issuer Board or in each case a duly authorized committee thereof, the applicable Subordinated Indenture and any supplemental indenture or officers’ certificate(s) establishing the form and terms of the Subordinated Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting, distribution or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
Our opinions are subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any Debt Securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
For the purposes of this letter, we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
(i) the Securities being offered will be issued and sold as contemplated in the Registration Statement and each prospectus supplement relating thereto;
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
February 1, 2022
Page 5
(ii) the execution, delivery and performance by the Issuers of the applicable Opinion Documents, and the issuance sale and delivery of the Securities will not (A) contravene or violate the Company LLC Agreement, the Co-Issuer Charter or the Co-Issuer By-Laws, (B) violate any law, rule or regulation applicable to the Company or the Co-Issuer, (C) result in a default under or breach of any agreement or instrument binding upon the Company or the Co-Issuer or any order, judgment or decree of any court or governmental authority applicable to the Company or the Co-Issuer, or (D) require any authorization, approval or other action by, or notice to or filing with, any court or governmental authority (other than such authorizations, approvals, actions, notices or filings which shall have been obtained or made, as the case may be, and which shall be in full force and effect);
(iii) the authorization thereof by the Issuers will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof; and
(iv) the Company LLC Agreement, the Co-Issuer Charter and the Co-Issuer By-laws, each as currently in effect, will not have been modified or amended and will be in full force and effect.
We have further assumed that each Opinion Document to be executed and delivered after the date hereof will be governed by the laws of the State of New York.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto; provided that we make no such assumption insofar as any of the foregoing matters relates to an Issuer and is expressly covered in one of numbered opinions set forth above.
This opinion letter is limited to the General Corporation Law of the State of Delaware, the Limited Liability Company Act of the State of Delaware and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
Jefferies Group LLC
Jefferies Group Capital Finance Inc.
February 1, 2022
Page 6
We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In addition, if a prospectus supplement relating to the offer and sale of any particular Senior Debt Securities is prepared and filed by the Issuers with the SEC on a future date and the prospectus supplement contains our opinion and a reference to us substantially in the form set forth below, this consent shall apply to our opinion and the reference to us in substantially such form:
“In the opinion of Sidley Austin LLP, as counsel to the issuers, when the notes offered by this [prospectus][pricing] supplement have been executed and issued by the issuers and authenticated by the trustee pursuant to the indenture, and delivered against payment as contemplated herein, such notes will be valid and binding obligations of the issuers, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel expresses no opinion as to the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above. This opinion is given as of the date hereof and is limited to the Federal laws of the United States, the laws of the State of New York, the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act as in effect on the date hereof. In addition, this opinion is subject to customary assumptions about the trustee’s authorization, execution and delivery of the indenture and the genuineness of signatures and certain factual matters, all as stated in the letter of such counsel dated February 1, 2022, which has been filed as Exhibit 5.1 to the issuers’ Registration Statement on Form S-3 filed with the Securities and Exchange Commission on February 1, 2022. [This opinion is also subject to the discussion, as stated in such letter, of the enforcement of notes denominated in a foreign currency or currency unit.]”
In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours, |
/s/ Sidley Austin LLP |
Exhibit 8.1
|
Sidley Austin LLP 787 Seventh Avenue New York, NY 10019 +1 212 839 5300 +1 212 839 5599 Fax
AMERICA ● ASIA PACIFIC ● EUROPE |
February 1, 2022
Jefferies Group LLC
520 Madison Avenue
New York, NY 10022
Jefferies Group Capital Finance Inc.
520 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
As United States tax counsel to Jefferies Group LLC (the “Company”) and Jefferies Group Capital Finance Inc. (the “Co-Issuer,” and, together with the Company, the “Issuers”) in connection with the registration statement (the “Registration Statement”) being filed with the Securities and Exchange Commission (the “SEC”) to register under the Securities Act of 1933 Debt Securities and Warrants to be issued by the Company, together with the Co-Issuer, we hereby confirm to you that the discussion set forth under the heading “Material United States Federal Income Tax Consequences” in the prospectus forming a part of the Registration Statement is our opinion, subject to the qualifications and limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. If a prospectus supplement (including without limitation any prospectus supplement that is referred to as a product supplement or a pricing supplement) relating to the offer and sale of any particular security referenced above is prepared and filed by the Issuers with the SEC on a future date and such prospectus supplement or pricing supplement contains our opinion and a reference to us, this consent shall apply to our opinion and the reference to us. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933.
Very truly yours, |
/s/ Sidley Austin LLP |
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
Exhibit 25.1
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT
OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK
IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE
BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382
(I.R.S. employer identification no.) |
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) |
10286
(Zip code) |
JEFFERIES
GROUP LLC
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
95-4719745
(I.R.S. employer identification no.) |
520 Madison Avenue
New York, New York (Address of principal executive offices) |
10022 (Zip code) |
Senior
Debt Securities
(Title of the indenture securities)
1. | General information. Furnish the following information as to the Trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Name | Address |
Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 |
Federal Deposit Insurance Corporation |
550 17th Street, NW
Washington, D.C. 20429 |
The Clearing House Association L.L.C. |
100 Broad Street
New York, N.Y. 10004 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 26th day of January, 2022.
THE BANK OF NEW YORK MELLON | |||
By: | /s/ | Francine Kincaid | |
Name: | Francine Kincaid | ||
Title: | Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of
240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30, 2021, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS |
Dollar amounts in thousands |
||||
Cash and balances due from depository institutions: | |||||
Noninterest-bearing balances and currency and coin | 5,784,000 | ||||
Interest-bearing balances | 142,725,000 | ||||
Securities: | |||||
Held-to-maturity securities | 56,263,000 | ||||
Available-for-sale debt securities | 100,318,000 | ||||
Equity securities with readily determinable fair values not held for trading | 72,000 | ||||
Federal funds sold and securities purchased under agreements to resell: | |||||
Federal funds sold in domestic offices | 0 | ||||
Securities purchased under agreements to resell | 12,803,000 | ||||
Loans and lease financing receivables: | |||||
Loans and leases held for sale | 0 | ||||
Loans and leases held for investment | 29,494,000 | ||||
LESS: Allowance for loan and lease losses | 206,000 | ||||
Loans and leases held for investment, net of allowance | 29,288,000 | ||||
Trading assets | 11,512,000 | ||||
Premises and fixed assets (including capitalized leases) | 2,931,000 | ||||
Other real estate owned | 1,000 | ||||
Investments in unconsolidated subsidiaries and associated companies | 1,576,000 | ||||
Direct and indirect investments in real estate ventures | 0 | ||||
Intangible assets | 6,936,000 | ||||
Other assets | 15,621,000 | ||||
Total assets | 385,830,000 | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | 218,664,000 | |||
Noninterest-bearing | 96,074,000 | |||
Interest-bearing | 122,590,000 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 123,251,000 | |||
Noninterest-bearing | 8,901,000 | |||
Interest-bearing | 114,350,000 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 0 | |||
Securities sold under agreements to repurchase |
4,020,000 | |||
Trading liabilities | 2,655,000 | |||
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) |
701,000 | |||
Not applicable | ||||
Not applicable | ||||
Subordinated notes and debentures | 0 | |||
Other liabilities | 8,028,000 | |||
Total liabilities | 357,319,000 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 1,135,000 | |||
Surplus (exclude all surplus related to preferred stock) | 11,725,000 | |||
Retained earnings | 16,437,000 | |||
Accumulated other comprehensive income | -786,000 | |||
Other equity capital components | 0 | |||
Total bank equity capital | 28,511,000 | |||
Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
Total equity capital | 28,511,000 | |||
Total liabilities and equity capital | 385,830,000 |
I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Emily Portney
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Thomas P. Gibbons | ||
Samuel C. Scott | Directors | |
Joseph J. Echevarria | ||
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382
(I.R.S. employer identification no.) |
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) |
10286
(Zip code) |
JEFFERIES GROUP LLC
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
95-4719745
(I.R.S. employer identification no.) |
520
Madison Avenue
New York, New York (Address of principal executive offices) |
10022 (Zip code) |
Jefferies Group Capital Finance Inc.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
81-1265442
(I.R.S. employer identification no.) |
520
Madison Avenue
New York, New York (Address of principal executive offices) |
10022 (Zip code) |
Senior Debt Securities
(Title of the indenture securities)
1. | General information. Furnish the following information as to the Trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Name | Address |
Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 |
Federal Deposit Insurance Corporation |
550 17th Street, NW
Washington, D.C. 20429 |
The Clearing House Association L.L.C. |
100 Broad Street
New York, N.Y. 10004 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 26th day of January, 2022.
THE BANK OF NEW YORK MELLON | |||
By: | /s/ | Francine Kincaid | |
Name: | Francine Kincaid | ||
Title: | Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of
240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30, 2021, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS |
Dollar amounts in thousands |
||||
Cash and balances due from depository institutions: | |||||
Noninterest-bearing balances and currency and coin | 5,784,000 | ||||
Interest-bearing balances | 142,725,000 | ||||
Securities: | |||||
Held-to-maturity securities | 56,263,000 | ||||
Available-for-sale debt securities | 100,318,000 | ||||
Equity securities with readily determinable fair values not held for trading | 72,000 | ||||
Federal funds sold and securities purchased under agreements to resell: | |||||
Federal funds sold in domestic offices | 0 | ||||
Securities purchased under agreements to resell | 12,803,000 | ||||
Loans and lease financing receivables: | |||||
Loans and leases held for sale | 0 | ||||
Loans and leases held for investment | 29,494,000 | ||||
LESS: Allowance for loan and lease losses | 206,000 | ||||
Loans and leases held for investment, net of allowance | 29,288,000 | ||||
Trading assets | 11,512,000 | ||||
Premises and fixed assets (including capitalized leases) | 2,931,000 | ||||
Other real estate owned | 1,000 | ||||
Investments in unconsolidated subsidiaries and associated companies | 1,576,000 | ||||
Direct and indirect investments in real estate ventures | 0 | ||||
Intangible assets | 6,936,000 | ||||
Other assets | 15,621,000 | ||||
Total assets | 385,830,000 | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | 218,664,000 | |||
Noninterest-bearing | 96,074,000 | |||
Interest-bearing | 122,590,000 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 123,251,000 | |||
Noninterest-bearing | 8,901,000 | |||
Interest-bearing | 114,350,000 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 0 | |||
Securities sold under agreements to repurchase |
4,020,000 | |||
Trading liabilities | 2,655,000 | |||
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) |
701,000 | |||
Not applicable | ||||
Not applicable | ||||
Subordinated notes and debentures | 0 | |||
Other liabilities | 8,028,000 | |||
Total liabilities | 357,319,000 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 1,135,000 | |||
Surplus (exclude all surplus related to preferred stock) | 11,725,000 | |||
Retained earnings | 16,437,000 | |||
Accumulated other comprehensive income | -786,000 | |||
Other equity capital components | 0 | |||
Total bank equity capital | 28,511,000 | |||
Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
Total equity capital | 28,511,000 | |||
Total liabilities and equity capital | 385,830,000 |
I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Emily Portney
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Thomas P. Gibbons | ||
Samuel C. Scott | Directors | |
Joseph J. Echevarria | ||
Exhibit 25.3
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT
OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK
IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE
BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
New York
(Jurisdiction of incorporation if not a U.S. national bank) |
13-5160382
(I.R.S. employer identification no.) |
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices) |
10286
(Zip code) |
JEFFERIES
GROUP LLC
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
95-4719745
(I.R.S. employer identification no.) |
520 Madison Avenue
New York, New York (Address of principal executive offices) |
10022 (Zip code) |
Jefferies
Group Capital Finance Inc.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
81-1265442
(I.R.S. employer identification no.) |
520 Madison Avenue
New York, New York (Address of principal executive offices) |
10022 (Zip code) |
Subordinated
Debt Securities
(Title of the indenture securities)
1. | General information. Furnish the following information as to the Trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
Name | Address |
Superintendent of the Department of Financial Services of the State of New York | One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
Federal Reserve Bank of New York | 33 Liberty Street, New York, N.Y. 10045 |
Federal Deposit Insurance Corporation |
550 17th Street, NW
Washington, D.C. 20429 |
The Clearing House Association L.L.C. |
100 Broad Street
New York, N.Y. 10004 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
1. | A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735). |
4. | A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-261533). |
6. | The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519). |
7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 26th day of January, 2022.
THE BANK OF NEW YORK MELLON | |||
By: | /s/ | Francine Kincaid | |
Name: | Francine Kincaid | ||
Title: | Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of
240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30, 2021, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS |
Dollar amounts in thousands |
||||
Cash and balances due from depository institutions: | |||||
Noninterest-bearing balances and currency and coin | 5,784,000 | ||||
Interest-bearing balances | 142,725,000 | ||||
Securities: | |||||
Held-to-maturity securities | 56,263,000 | ||||
Available-for-sale debt securities | 100,318,000 | ||||
Equity securities with readily determinable fair values not held for trading | 72,000 | ||||
Federal funds sold and securities purchased under agreements to resell: | |||||
Federal funds sold in domestic offices | 0 | ||||
Securities purchased under agreements to resell | 12,803,000 | ||||
Loans and lease financing receivables: | |||||
Loans and leases held for sale | 0 | ||||
Loans and leases held for investment | 29,494,000 | ||||
LESS: Allowance for loan and lease losses | 206,000 | ||||
Loans and leases held for investment, net of allowance | 29,288,000 | ||||
Trading assets | 11,512,000 | ||||
Premises and fixed assets (including capitalized leases) | 2,931,000 | ||||
Other real estate owned | 1,000 | ||||
Investments in unconsolidated subsidiaries and associated companies | 1,576,000 | ||||
Direct and indirect investments in real estate ventures | 0 | ||||
Intangible assets | 6,936,000 | ||||
Other assets | 15,621,000 | ||||
Total assets | 385,830,000 | ||||
LIABILITIES | ||||
Deposits: | ||||
In domestic offices | 218,664,000 | |||
Noninterest-bearing | 96,074,000 | |||
Interest-bearing | 122,590,000 | |||
In foreign offices, Edge and Agreement subsidiaries, and IBFs | 123,251,000 | |||
Noninterest-bearing | 8,901,000 | |||
Interest-bearing | 114,350,000 | |||
Federal funds purchased and securities sold under agreements to repurchase: | ||||
Federal funds purchased in domestic offices | 0 | |||
Securities sold under agreements to repurchase |
4,020,000 | |||
Trading liabilities | 2,655,000 | |||
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases) |
701,000 | |||
Not applicable | ||||
Not applicable | ||||
Subordinated notes and debentures | 0 | |||
Other liabilities | 8,028,000 | |||
Total liabilities | 357,319,000 | |||
EQUITY CAPITAL | ||||
Perpetual preferred stock and related surplus | 0 | |||
Common stock | 1,135,000 | |||
Surplus (exclude all surplus related to preferred stock) | 11,725,000 | |||
Retained earnings | 16,437,000 | |||
Accumulated other comprehensive income | -786,000 | |||
Other equity capital components | 0 | |||
Total bank equity capital | 28,511,000 | |||
Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||
Total equity capital | 28,511,000 | |||
Total liabilities and equity capital | 385,830,000 |
I, Emily Portney, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
Emily Portney
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.
Thomas P. Gibbons | ||
Samuel C. Scott | Directors | |
Joseph J. Echevarria | ||
Security Type
|
Security Class Title
|
Debt
|
Senior Securities
|
Debt
|
Senior Debt Securities
|
Debt
|
Subordinated Debt Securities
|
Other
|
Index-Linked Warrants
|
Other
|
Currency-Linked Warrants
|
Other
|
Interest Rate-Linked Warrants
|
Other
|
Benchmarked Warrants
|
(1)
An indeterminate aggregate initial offering price or number of the securities of each identified class is
being registered as may be sold from time to time at indeterminate prices. In accordance with Rules 456(b) and 457(r), the Registrants are deferring payment of all of the registration fee. In connection with the securities offered hereby,
the Registrants will pay “pay-as-you-go” registration fees in accordance with Rule 456(b).
|