EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
between
LEUCADIA NATIONAL CORPORATION, as Issuer,
and
THE CHASE MANHATTAN BANK, as Trustee
Dated as of January 21, 1997
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES . . . . 4
ARTICLE III
REDEMPTION OF THE DEBENTURES . . . . . . . . . . . . . 10
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD . . . . . . . . . 11
ARTICLE V
EXPENSES AND GUARANTEE . . . . . . . . . . . . . . . . 13
ARTICLE VI
FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 26
FIRST SUPPLEMENTAL INDENTURE, dated as of January 21, 1997
(the "First Supplemental Indenture"), between Leucadia National
Corporation, a New York corporation (the "Company") and The Chase
Manhattan Bank, as trustee (the "Trustee"), under the Indenture dated
as of January 21, 1997 between the Company and the Trustee (the
"Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the issuance of the Company s unsecured
junior subordinated debt securities to be issued from time to time in
one or more series as might be determined by the Company under the
Indenture, in an unlimited aggregate principal amount which may be
authenticated and delivered as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a series of its Debt
Securities to be known as 8.65% Junior Subordinated Deferrable
Interest Debentures due 2027 (the "Initial Debentures"), and to
provide for, if and when issued in exchange for the Initial Debentures
pursuant to the Indenture and the Registration Agreement, a series of
its Debt Securities to be known as 8.65% Junior Subordinated
Deferrable Interest Debentures due 2027 (the "Exchange Debentures" and
together with the Initial Debentures, the "Debentures"), the form and
substance of each such series of Debentures and the terms, provisions
and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, Leucadia Capital Trust I, a Delaware statutory
business trust (the "Trust"), has offered for sale pursuant to an
exemption from the registration requirements of the Securities Act of
1933, $150,000,000 aggregate liquidation amount of 8.65% Capital Trust
Pass-through Securities (the "Initial Capital Securities"),
representing undivided beneficial interests in the assets of the Trust
and proposes to invest the proceeds from such offering, together with
the proceeds of the issuance and sale by the Trust to the Company of
its common securities, in $154,640,000 aggregate principal amount of
the Debentures;
WHEREAS, the Trust may offer and issue 8.65% Capital Trust
Pass-through Securities (the "Exchange Capital Securities") in
exchange for the Initial Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture; all requirements
necessary to make this First Supplemental Indenture a valid instrument
in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company,
have been performed; and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and
acceptance of the Initial Debentures by the holders thereof, and for
the purpose of setting forth, as provided in the Indenture, the form
and substance of each series of Debentures and the terms, provisions
and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Administrators; (ii) Business Day; (iii) Capital Security
Certificate; (iv) Clearing Agency; (v) Delaware Trustee; (vi) Depositary;
(vii) Distribution; (viii) Institutional Trustee; (ix) Purchase Agreement;
(x) Redemption Tax Opinion; and (xi) Tax Event;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5(c).
"Call Price" shall have the meaning set forth in Section 3.2.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of January 21, 1997, as amended or
supplemented from time to time.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that the Trust is to be dissolved
in accordance with the Declaration, and the Debentures held by the
Institutional Trustee are to be distributed to the holders of the
Trust Securities issued by the Trust pro rata in accordance with the
Declaration.
"Extension Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in
Section 2.4(a)(i).
"interest" shall include all interest payable on a series of
Debentures including any Additional Interest, Compounded Interest and
Special Interest, if applicable.
"Maturity Date" means January 15, 2027.
"Non-Book-Entry Capital Securities" shall have the meaning
set forth in Section 2.4(a)(ii).
"Record Date" shall have the meaning set forth in the
Debentures.
"Registration Agreement" means the Registration Rights
Agreement, dated January 21, 1997, relating to the Debentures and the
other securities described therein among the Company, the Trust and
the initial purchasers named therein.
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Shelf Registration Event" has the meaning set forth in
Section 2.5(e)(ii).
"Special Interest" has the meaning set forth in Section
2.5(e)(iv).
"Tax Contingency" means that the Company shall determine in
good faith that there is a reasonable likelihood that, or a material
uncertainty as to whether, consummation of the Registered Exchange
Offer would result in an adverse tax consequence to the Company.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
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The Initial Debentures and the Exchange Debentures are
hereby authorized as two series of Debt Securities. The aggregate
principal amount of Debentures outstanding at any time shall not
exceed $154,640,000 (except as set forth in Section 2.03(2) of the
Indenture). Upon receipt of a written order of the Company for the
authentication and delivery of a series of Debentures and satisfaction
of the requirements of Section 2.04 of the Indenture, the Trustee
shall authenticate (a) Initial Debentures for original issuance in an
aggregate principal amount not to exceed $154,640,000 (except as set
forth in Section 2.03(2) of the Indenture) or (b) Exchange Debentures
for issuance pursuant to a Registered Exchange Offer for Initial
Debentures in a principal amount equal to the principal amount of
Initial Debentures exchanged in such Registered Exchange Offer.
The Initial Debentures shall be issued pursuant to an
exemption from registration under the Securities Act and the
Restricted Securities Legend shall appear thereon, unless otherwise
determined by the Company in accordance with applicable law. The
Initial Debentures may not be transferred except in compliance with
the Restricted Securities Legend set forth in Section 2.07 of the
Indenture, unless otherwise determined by the Company in accordance
with applicable law. The Initial Debentures shall be issued in
minimum denominations of $100,000 and any integral multiple of $1,000
in excess thereof, and the Exchange Debentures shall be issuable in
minimum denominations of $1,000 and any integral multiple of $1,000 in
excess thereof.
SECTION 2.2
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At the Maturity Date, the Debentures shall mature and the
principal thereof shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest, Additional
Interest and Special Interest thereon, if any.
SECTION 2.3
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Except as provided in Section 2.4, Debentures of a series
shall be issued in fully registered certificated form without interest
coupons. Principal and interest on Debentures of a series issued in
certificated form will be payable, the transfer of such Debentures
will be registrable and such Debentures will be exchangeable for
Debentures of such series bearing identical terms and provisions at
the office or agency of the Company in the Borough of Manhattan, The
City of New York, which office or agency shall initially be the
corporate trust office of the Trustee; provided, however, that payment
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of interest may be made at the option of the Company by check mailed
to the holder of any Debenture at such address as shall appear in the
Debt Security Register for such series of Debentures or by wire
transfer to an account appropriately designated by such holder.
Notwithstanding the foregoing, so long as the holder of any Debentures
of a series is the Institutional Trustee, the payment of the principal
of (and premium, if any) and interest (including Compounded Interest,
Additional Interest and Special Interest, if any) on the Debentures
held by the Institutional Trustee will be made at such place and to
such account as may be designated by the Institutional Trustee.
SECTION 2.4
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(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence,
Debentures of a series in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a Global
Security for such series in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Debentures of such
series (a "Global Debenture"), to be registered in the name of The
Depository Trust Company, New York, New York, or its nominee (hereby
designated to be the Depositary for Debentures of such series), and
delivered by the Trustee to the Depositary or its custodian for
crediting to the accounts of the Depositary s participants pursuant
to the instructions of the Administrators of the Trust, which
instructions shall be provided in accordance with the terms of the
Declaration; the Company upon any such presentation shall execute a
Global Debenture for such series in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental
Indenture; payments on the
Debentures of a series issued as a Global Debenture will be made to
the Depositary;
(ii) if any Capital Securities of a series are not held by the
Clearing Agency or its nominee ("Non-Book-Entry Capital
Securities"), the Debentures in certificated form of the series held
by the Trust corresponding to such Capital Securities of such series
may be presented to the Trustee by the Institutional Trustee and any
Capital Security Certificate which represents such Non-Book-Entry
Capital Securities will be deemed to represent beneficial interests
in Debentures so presented to the Trustee by the Institutional
Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of such Non-Book-Entry Capital Securities until
such Capital Security Certificates are presented to the Debt
Security registrar for registration of transfer or reissuance at
which time such Capital Security Certificates will be canceled and a
Debenture of the series previously held by the Trust registered in
the name of the holder of the Capital Security Certificate or the
transferee of the holder of such Capital Security Certificate, as
the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Security Certificate
canceled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture; upon issue of such
Debentures of such series, Debentures of such series with an
equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been
canceled; and
(iii) prior to the distribution of Debentures of a series held
by the Institutional Trustee to the holders of Trust Securities, the
Company and the Trustee shall enter into a supplemental indenture
pursuant to Article IX of the Indenture to provide for transfer
procedures and restrictions with respect to such Debentures of such
series substantially similar to those contained in the Declaration
with respect to Capital Securities of the corresponding series to
the extent applicable in the circumstances existing at the time of
distribution of Debentures of such series in connection with a
Dissolution Event for purposes of assuring that no registration of
Debentures of such series is required under the Securities Act of
1933, as amended.
(b) A Global Debenture may be transferred, in whole but not in
part, only by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary,
or to a successor Depositary selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the
Depositary shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of
such condition, as the case may be, the Company will execute, and, subject
to Article II of the Indenture, the Trustee, upon written request of the
Company, will authenticate and make available for delivery, Debentures of
each series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture of such series in exchange for such Global
Debenture. In addition, the Company may at any time determine that the
Debentures of a series shall no longer be represented by a Global
Debenture. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers Certificate
evidencing such determination by the Company, will authenticate and deliver
Debentures of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture of such series in exchange for
such Global Debenture. A Global Debenture shall also be exchangeable for
Debentures in definitive form upon the occurrence of an Event of Default.
Upon the exchange of a Global Debenture for Debentures in definitive
registered form without coupons, in authorized denominations, such Global
Debenture shall be canceled by the Trustee. Such Debentures in definitive
registered form issued in exchange for such Global Debenture shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5
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(a) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for
any period shorter than a full semiannual period for which interest is
computed, will be computed on the basis of the actual number of days
elapsed in such a period (assuming each full month elapsed in such
period consists of 30 days). In the event that any date on which
interest is payable on the Debentures of a series is not a Business
Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(b) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of
all present and future Senior Indebtedness and pari passu in right of
payment with all Debentures of each other series.
(c) If, at any time while the holder of any Debentures of a
series is the Institutional Trustee, the Trust is required to pay any
taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any such case, the Company shall pay as
additional interest ("Additional Interest") on the Debentures held by the
Institutional Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Institutional Trustee would have received had no
such taxes, duties, assessments or other governmental charges been imposed.
(d) If an Initial Debenture is exchanged in a Registered Exchange
Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on such
Initial Debenture, up to but not including the date of issuance of the
Exchange Debenture or Exchange Debentures issued in exchange for such
Initial Debenture, shall be paid on the first Interest Payment Date for
such Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on the
first Record Date with respect to such Exchange Debenture or Exchange
Debentures. If an Initial Debenture is exchanged in a Registered Exchange
Offer subsequent to the Record Date for the first
Interest Payment Date following such exchange but on or prior to such
Interest Payment Date, then any such accrued and unpaid interest with
respect to such Initial Debenture and any accrued and unpaid interest
on the Exchange Debenture or Exchange Debentures issued in exchange
for such Initial Debenture, through the day before such Interest
Payment Date, shall be paid on such Interest Payment Date to the
Securityholder of such Initial Debenture on such Record Date.
(e) The following terms relate to Special Interest:
(i) Except as described in paragraph (ii), in the event that
either (A) the Exchange Offer Registration Statement (as such term
is defined in the Registration Agreement) is not filed with the
Securities and Exchange Commission (the "Commission") on or prior to
the 120th day following the Closing Date (as such term is defined in
the Registration Agreement), (B) the Exchange Offer Registration
Statement is not declared effective by the Commission on or prior to
the 180th day following the Closing Date or (C) the Registered
Exchange Offer (as such term is defined in the Registration
Agreement) is not consummated or a Shelf Registration Statement (as
such term is defined in the Registration Agreement) with respect to
the Initial Debentures is not declared effective by the Commission
on or prior to the 210th day following the Closing Date, interest
shall accrue on Initial Debentures (in addition to the stated
interest on Initial Debentures) from and including the next day
following each of (1) such 120-day period in the case of clause (A)
above, (2) such 180-day period in the case of clause (B) above and
(3) such 210- day period in the case of clause (C) above. In each
case, such additional interest shall accrue at a rate per annum
equal to --- ----- 0.25% of the principal amount of the Initial
Debentures (determined daily). The aggregate amount of additional
interest payable pursuant to the above provisions will in no event
exceed 0.25% per annum of the principal amount of the Initial
Debentures --- ----- (determined daily). Upon (X) the filing of the
Exchange Offer Registration Statement or the occurrence of a Shelf
Registration Event (as defined below), if applicable, after the
120-day period described in clause (A) above, (Y) the effectiveness
of the Exchange Offer Registration Statement (if applicable) (or the
filing of a Shelf Registration Statement, in the event of a Shelf
Registration Event, if applicable) after the 180-day period
described in clause (B) above or (Z) the consummation of the
Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 210-
day period described in clause (C) above (or the effectiveness of a
Shelf Registration Statement after the 240-day period specified
below, in the event of a Shelf Registration Event, if applicable),
the additional interest payable on the Initial Debentures, with
respect to such clause (A), (B) or (C), as the case may be, from the
date of such filing, effectiveness or consummation, as the case may
be, shall cease to accrue.
(ii) In the event that on or before the 120th day following
the Closing Date, applicable law or applicable interpretations of
the staff of the Commission do not permit the Company and the Trust
to effect the Registered Exchange Offer, or if a Tax Contingency
exists (each, a "Shelf Registration Event"), then clauses (A) and
(1) of paragraph (i) shall not apply. To the extent that such a
Shelf Registration Event exists and the Company has filed a Shelf
Registration Statement covering resales of the Initial Debentures by
the 180th day following the Closing Date, then clauses (B) and (2)
of paragraph (i) shall not apply, and to the extent a Shelf
Registration Event exists on the 210th day following the Closing
Date, the period specified in clauses (C) and (3) of paragraph (i)
will be 240 days.
(iii) In the event that the Shelf Registration Statement is
declared effective pursuant to the terms of the Registration
Agreement, if the Company or the Trust fails to keep such Shelf
Registration Statement filed pursuant to Section 3(i) or Section
3(ii) of the Registration Agreement continuously effective for the
period required by the Registration Agreement, then from the next
day following such time as the Shelf Registration Statement is no
longer effective until the earlier of (A) the date that the Shelf
Registration Statement is again deemed effective, (B) the date that
is the third anniversary of the Closing Date or (C) the date as of
which all of the Initial Debentures are sold pursuant to the Shelf
Registration Statement or may be sold without registration pursuant
to Rule 144 under the Securities Act of 1933, interest shall accrue
on the Initial Debentures (in addition to the stated interest on the
Initial Debentures) at a rate per annum equal to 0.25% of the
principal amount of the --- ----- Initial Debentures (determined
daily), it being understood that if the Registered Exchange Offer
shall have been consummated, no special interest shall be payable in
respect of any Initial Debentures.
(iv) Any additional interest that accrues with respect to the
Initial Debentures as provided in this paragraph is referred to as
Special Interest. For all purposes of the Indenture, this
Supplemental Indenture and the Initial Debentures, Special Interest
shall be treated as interest and shall be payable on the same
Interest Payment Dates and to the Securityholders of record on the
same record dates as would be the case for stated interest.
SECTION 2.6
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If at any time the holder of all Debentures of a series
ceases to be the Institutional Trustee and, at such time, the Capital
Securities issued by the Trust are rated by at least one nationally
recognized statistical rating agency, then the Company shall use its
best efforts to obtain from at least one nationally recognized
statistical rating agency a rating for the Debentures of such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
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If a Tax Event has occurred and is continuing and the
Company has received a Redemption Tax Opinion, then the Company shall
have the right, within 90 days following the occurrence of such Tax
Event (the "90 Day Period"), upon not less than 30 days nor more than
60 days notice, to redeem the Debentures held by the Institutional
Trustee, in whole or in part, for cash at a redemption price equal to
100% of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption (the "Tax Event
Redemption Price"), provided that if at the time there is available to
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the Company or the Trust the opportunity to eliminate, within the 90
Day Period and before any such notice is given, the adverse effects of
such Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election or pursuing some
other similar reasonable measure that will have no adverse effect on
the Company, the Trust or the holders of the Trust Securities, the
Company or the Trust shall pursue such Ministerial Action in lieu of
redemption.
SECTION 3.2
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Subject to the provisions of Article XIV of the Indenture,
and in addition to the rights set forth in Section 3.1 of this First
Supplemental Indenture, except as otherwise may be specified in this
First Supplemental Indenture, the Company shall have the right to
redeem the Debentures, in whole or in part, at
any time and from time to time on or after January 15, 2007, at the
call prices (expressed as a percentage of principal amount per
Debenture being redeemed) specified below (each, a "Call Price"), plus
any accrued and unpaid interest thereon to the date of such
redemption:
If redeemed during
the 12-month period:
Beginning January 15, Call Price
2007 104.2790%
2008 103.8511
2009 103.4232
2010 102.9953
2011 102.5674
2012 102.1395
2013 101.7116
2014 101.2837
2015 100.8558
2016 100.4279
2017 100.0000
2018 100.0000
2019 100.0000
2020 100.0000
2021 100.0000
2022 100.0000
2023 100.0000
2024 100.0000
2025 100.0000
2026 100.0000
Any redemption pursuant to the preceding paragraph will be
made upon not less than 30 days nor more than 60 days notice to the
holder of the relevant Debentures, at the Call Price plus any accrued
and unpaid interest to the date of such redemption. If Debentures are
only partially redeemed pursuant to this Section 3.2, Debentures shall
be redeemed pro rata.
The Debentures are not entitled to the benefit of any
sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
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The Company shall have the right, subject to the conditions
set forth herein, to defer payments of interest on the
Debentures of a series by extending the interest payment period on the
Debentures of a series at any time and from time to time during the
term of the Debentures, for up to 10 consecutive semiannual periods
(each such extended interest payment period, an "Extension Period"),
during which Extension Periods no interest shall be due and payable;
provided that (i) no Extension Period may extend beyond the Maturity
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Date and (ii) no Extension Period may commence or be extended so long
as the Company is in default in the payment of any interest upon any
Debentures of such series or has not paid all Deferred Interest from a
prior completed Extension Period. At the termination of an Extension
Period for the Debentures of a series or, if not an Interest Payment
Date, on the Interest Payment Date immediately following termination
of such Extension Period for the Debentures of such series, the
Company shall pay all interest then accrued and unpaid on the
Debentures, together with interest thereon at the rate of 8.65% per
annum, compounded semiannually (to the extent permitted by applicable
law) ("Compounded Interest") and any Additional Interest (together
with Compounded Interest, "Deferred Interest"), which Deferred
Interest shall be payable to the holders of the Debentures of such
series in whose names the Debentures are registered in the Debt
Security Register on the record date for the payment of interest on
such Interest Payment Date. Before the termination of any Extension
Period, the Company may further extend such period, provided that such
period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semiannual periods,
or extend beyond the Maturity Date. Upon the termination of any
Extension Period and upon the payment of all Deferred Interest then
due, the Company may commence a new Extension Period, subject to the
foregoing requirements.
SECTION 4.2
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(a) If the Institutional Trustee is the only registered holder of
the Debentures of a series at the time the Company initiates an Extension
Period, the Company shall give written notice to the Administrators, the
Institutional Trustee and the Trustee of its initiation of such Extension
Period one Business Day before the earlier of (i) the date on which
distributions on the Capital Securities of the corresponding series are
payable, or (ii) the date the Administrators are required to give notice to
holders of the Capital Securities of the corresponding series (or any
national securities exchange or other organization on which such Capital
Securities are listed, if any) of the record date or the distribution
payment date, in each case with respect to distributions on the Trust
Securities the payment of which is being deferred.
(b) If the Institutional Trustee is not the only registered
holder of the Debentures of a series at the time the Company initiates an
Extension Period, the Company shall give the holders of the Debentures of
such series and the Trustee written notice of its initiation of such
Extension Period at least ten Business Days before the earlier of (i) the
next succeeding Interest Payment Date or (ii) the date the Company is
required to give notice to holders of the Debentures of such series (or any
national securities exchange or other organization on which the Capital
Securities of the corresponding series are listed, if any) of the record or
payment date of such interest, in each case with respect to interest
payments the payment of which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
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In connection with the offering, sale and issuance of the
Debentures of a series and in connection with the sale of any Trust
Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures of such series, shall:
(a)pay all costs and expenses relating to the offering, sale and
issuance of Debentures of such series, including commissions to the
underwriters payable pursuant to the Purchase Agreement and compensation of
the Trustee under the Indenture in accordance with the provisions of
Section 6.06 of the Indenture;
(b) pay all debts and other obligations (other than with respect
to the Trust Securities) and costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and
expenses, if any, of the Institutional Trustee, the Delaware Trustee and
each Administrator, the costs and expenses relating to the operation of the
Trust, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust assets
of the Trust);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration or the Purchase
Agreement or the Registration Agreement; and
(d) pay any and all taxes, duties, assessments or governmental
charges of whatever nature and all liabilities, costs and expenses with
respect thereto (other than United States withholding taxes attributable to
the Trust or assets of the Trust) to which the Trust may become subject.
SECTION 5.2
-----------
Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Institutional Trustee, as
the case may be, pursuant to Section 5.7 of the Declaration, the
Company shall pay to the Delaware Trustee or the Institutional
Trustee, as the case may be, all amounts owing to the Delaware Trustee
or the Institutional Trustee, as the case may be, under Sections 10.4
and 10.6 of the Declaration accrued to the date of such termination,
removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee s certificate of
authentication to be endorsed thereon are to be substantially in the
following forms and are expressly made a part of this First
Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This
Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Debenture is exchangeable for
Debentures of this series registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture may be
registered except in limited circumstances. Except as otherwise
provided in Section 2.11 of the Indenture, this Debenture may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such
successor Depositary.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any Debenture of this series issued
is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT,
AS SPECIFIED PURSUANT TO SECTION 2.03 OF THE INDENTURE, INSERT THE
FOLLOWING UNLESS OTHERWISE DETERMINED BY THE COMPANY -- THIS DEBENTURE
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER
THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS DEBENTURE BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
DEBENTURE PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH LEUCADIA
NATIONAL CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE)
(THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY,
(B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE DEBENTURES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"),
TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO
AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE DEBENTURE FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE
INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE
HOLDER OF THIS DEBENTURE AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS. DEBENTURES OWNED BY A PURCHASER THAT IS NOT A
QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTIONS TERMINATION DATE.]
No. _________________
LEUCADIA NATIONAL CORPORATION
8.65% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2027
LEUCADIA NATIONAL CORPORATION, a New York corporation (the
Company, which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to ____________ or registered assigns, the principal
sum of ________________ Dollars ($_________) on January 15, 2027, and
to pay interest on said principal sum from January 21, 1997, or from
the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semiannually (subject to deferral as set forth herein) in arrears on
July 15 and January 15 of each year commencing July 15, 1997, at the
rate of 8.65% per annum until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded semiannually. The
amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Debenture
is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Debenture (or
one or more Predecessor Securities, as defined in said Indenture) is
registered at the close of business on the Record Date for such
interest installment, [which shall be the close of business on the
Business Day next preceding such Interest Payment Date]. [IF PURSUANT
TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES OF THIS SERIES ARE
NO LONGER REPRESENTED SOLELY BY A GLOBAL DEBENTURE, SUBSTITUTE THE
FOLLOWING FOR THE FOREGOING BRACKETED TEXT -- which shall be the close
of business on the 15th day next preceding such Interest Payment
Date.] Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered
holders on such Record Date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be
fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of
this series of Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Debentures of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the
Indenture. In the event the Debentures of this series are issued in
non-book entry form, the principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made at the option of the Company by check mailed
to the registered holder at such address as shall appear in the Debt
Security Register or by wire transfer to an account appropriately
designated by the holder hereof. Notwithstanding the foregoing, so
long as the holder of this Debenture is the Institutional Trustee, the
payment of the principal of (and premium, if any) and interest on this
Debenture will be made in immediately available funds at such place
and to such account as may be designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness, and
this Debenture is issued subject to the provisions of the Indenture
with respect thereto. Each holder of this Debenture, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate
the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
If this Debenture is exchanged in a Registered Exchange
Offer prior to the Record Date for the first Interest Payment Date
following such exchange, accrued and unpaid interest, if any, on this
Debenture, up to but not including the date of issuance of the
Exchange Debenture or Exchange Debentures issued in exchange for this
Debenture, shall be paid on the first Interest Payment Date for such
Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on
the first Record
Date with respect to such Exchange Debenture or Exchange Debentures.
If this Debenture is exchanged in a Registered Exchange Offer
subsequent to the Record Date for the first Interest Payment Date
following such exchange but on or prior to such Interest Payment Date,
then any such accrued and unpaid interest with respect to this
Debenture and any accrued and unpaid interest on the Exchange
Debenture or Exchange Debentures issued in exchange for this
Debenture, through the day before such Interest Payment Date, shall be
paid on such Interest Payment Date to the Securityholder of this
Debenture on such Record Date.
If any time the Trust shall be required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States or any other
taxing authority, then, in any such case, the Company shall pay as
additional interest on the Debentures held by the Institutional
Trustee such additional amounts as shall be required so that the net
amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal
the amounts the Trust and the Institutional Trustee would have
received had no such taxes, duties, assessments or other governmental
charges been imposed. [IF THIS DEBENTURE IS AN INITIAL DEBENTURE
INSERT -- In addition, the interest rate payable on the Debentures of
this series is subject to increase as provided in the Indenture if,
pursuant to the Registration Agreement, except as provided in the
following paragraph, either (A) the Exchange Offer Registration
Statement (as such term is defined in the Registration Agreement) is
not filed with the Securities and Exchange Commission (the
"Commission") on or prior to the 120th day following the Closing Date
(as such term is defined in the Registration Agreement), (B) the
Exchange Offer Registration Statement is not declared effective by the
Commission on or prior to the 180th day following the Closing Date or
(C) the Registered Exchange Offer (as such term is defined in the
Registration Agreement) is not consummated or a Shelf Registration
Statement (as such term is defined in the Registration Agreement) is
not declared effective by the Commission on or prior to the 210th day
following the Closing Date.
In the event that on or after the 120th day following the
Closing Date applicable law or applicable interpretations of the staff
of the Commission do not permit the Company and the Trust to effect
the Registered Exchange Offer, or if a Tax Contingency exists (each, a
"Shelf Registration Event"), then clause (A) of the preceding
paragraph shall not apply. To the extent that such a Shelf
Registration Event exists and the Company has filed a Shelf
Registration Statement covering resales of the Initial Debentures by
the 180th day following the Closing
Date, then clause (B) of the preceding paragraph shall not apply, and
to the extent a Shelf Registration Event exists on the 210th day
following the Closing ate, the period specified in clause (C) of the
preceding paragraph will be 240 days. The interest rate payable on
the Debentures of this series is also subject to adjustment in certain
circumstances if a Shelf Registration Statement filed pursuant to
Section 3(i) or Section 3(ii) of the Registration Agreement is not
kept continuously effective for a specified period, as provided in the
Indenture.]
This Debenture shall not be entitled to any benefit under
the Indenture hereinafter referred to, be valid or become obligatory
for any purpose until the certificate of authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the
reverse side hereof and such continued provisions shall for all
purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument
to be executed this ______ day of _____________, ____.
LEUCADIA NATIONAL CORPORATION
By:
-----------------------------
Name:
Title:
[Seal]
By:
-----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
------------------------------
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated ________________
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------
Authorized Officer
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt
Securities of the Company, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of January 21,
1997, duly executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture dated as of January 21, 1997, between the
Company and the Trustee (the Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the series of Debt
Securities (referred to herein as the "Debentures") of which this
Debenture is a part. The summary of the terms of this Debenture
contained herein does not purport to be complete and is qualified by
reference to the Indenture. By the terms of the Indenture, the Debt
Securities are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate
principal amount as specified in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event, in
certain circumstances, this Debenture may become due and payable, in
whole, or in part, at a redemption price equal to 100% of the
principal amount being redeemed together with any accrued and unpaid
interest thereon. The Company shall also have the right to redeem
this Debenture at the option of the Company, in whole or in part, at
any time or from time to time on or after January 15, 2007 (an
"Optional Redemption"), at the call price (the "Call Price")
(expressed as a percentage of the principal amount being redeemed)
specified below, plus accrued and unpaid interest to the redemption
date:
If redeemed during the
12-month period Call Price
commencing January 15,
2007 104.2790%
2008 103.8511
2009 103.4232
2010 102.9953
2011 102.5674
2012 102.1395
2013 101.7116
2014 101.2837
2015 100.8558
2016 100.4279
If redeemed during the
12-month period Call Price
commencing January 15,
2017 100.0000
2018 100.0000
2019 100.0000
2020 100.0000
2021 100.0000
2022 100.0000
2023 100.0000
2024 100.0000
2025 100.0000
2026 100.0000
Any redemption pursuant to the preceding paragraph will be
made upon not less than 30 days nor more than 60 days notice, at a
redemption price equal to 100% of the principal amount being redeemed
or at the Call Price, as the case may be, plus any accrued and unpaid
interest to the date of such redemption. If the Debentures are only
partially redeemed by the Company, the Debentures will be redeemed pro
rata; provided that if, at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the
principal amount of such Debentures held by each of its direct
participants to be redeemed pro rata.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion
hereof will be issued in the name of the holder hereof upon the
cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the
Debentures may be declared due and payable, and upon such declaration
of acceleration shall become due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Debt Securities of any
series at the time outstanding affected thereby, as specified in the
Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or
of modifying in any manner the rights of the holders of the Debt
Securities; provided, however, that no such supplemental indenture
-------- -------
shall, among other things, without the consent of the holders of each
Debt Security then outstanding and affected thereby (i) extend
the fixed maturity of any Debt Securities of any series, or reduce the
principal amount thereof or any redemption premium thereon, or reduce
the rate or extend the time of payment of interest thereon, or make
the principal of, or interest or premium on, the Debt Securities
payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any holder of Debt
Securities to institute suit for the payment thereof, or (ii) reduce
the aforesaid percentage of Debt Securities, the holders of which are
required to consent to any such supplemental indenture. The Indenture
also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities of a series at the
time outstanding affected thereby as provided in the Indenture, on
behalf of all of the holders of the Debt Securities of such series, to
waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any
of the Debt Securities of such series. Any such consent or waiver by
the registered holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not
any notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of
this Debenture or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and premium, if any, and interest on this Debenture
at the time and place and at the rate and in the money herein
prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time, subject to certain
conditions, to defer payment of interest on the Debentures of a series
by extending the interest payment period for Extension Periods, each
not exceeding 10 consecutive semiannual periods as provided in the
Indenture. Notwithstanding the foregoing, no Extension Period may
extend beyond the maturity date of the Debentures. In the event that
the Company exercises its right to extend an interest payment period,
then during any Extension Period (a) the Company shall not declare or
pay any dividends on, make any distribution with respect to, or
redeem, purchase, acquire, or make a liquidation payment with respect
to, any of its capital stock or rights to acquire such capital stock
(other than (i) purchases or acquisitions of shares of any such
capital stock or rights to acquire such capital stock in connection
with
the satisfaction by the Company of its obligations under any employee
benefit plans or any other contractual obligations of the Company
(other than a contractual obligation ranking pari passu with or junior
to the Debentures), (ii) as a result of a reclassification of the
Company s capital stock or rights to acquire such capital stock or the
exchange or conversion of one class or series of the Company s capital
stock or rights to acquire such capital stock for another class or
series of the Company s capital stock or rights to acquire such
capital stock, (iii) the purchase of fractional interests in shares of
the Company s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends and distributions made on the Company s
capital stock or rights to acquire such capital stock with the
Company s capital stock or rights to acquire such capital stock, or
(v) any declaration of a dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto), or make guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or
junior to the Debentures (other than payments under the Capital
Securities Guarantee or the Common Securities Guarantee for the Trust)
and (b) the Company shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior
to the Debentures. Prior to the termination of any such Extension
Period, the Company may further defer payments of interest by
extending the interest payment period; provided, however, that each
-------- -------
such Extension Period, including all such previous and further
extensions thereof, may not exceed 10 consecutive semiannual periods
or extend beyond the maturity of the Debentures. Upon the termination
of any Extension Period and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the terms set
forth in the Indenture. No interest during an Extension Period,
except on the date on which such Extension Period terminates (or if
such date is not an Interest Payment Date, on the immediately
following Interest Payment Date), shall be due and payable.
As provided in the Indenture and subject to certain
limitations herein and therein set forth, this Debenture is
transferable by the registered holder hereof on the Debt Security
Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in the
City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the
Trustee duly executed by the registered holder hereof or his attorney
duly authorized in writing, and thereupon
one or more new Debentures of authorized denominations and for the
same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made
for any such registration of transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of
this Debenture, the Company, the Trustee, any Authenticating Agent,
any paying agent, any transfer agent and the Debt Security registrar
may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and
notwithstanding any notice of ownership or writing hereon) for the
purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor
any Debt Security registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal
of, the premium, if any, on or the interest on this Debenture, or for
any claim based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture, against any incorporator, stockholder,
officer or director, past, present or future, as such, of the Company
or of any predecessor or successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Debentures of this series are issuable only in
registered form without coupons. A Global Debenture is exchangeable
for Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. As provided in the
Indenture and subject to certain limitations herein and therein set
forth, Debentures of this series are exchangeable for a like aggregate
principal amount of Debentures of this series of a different
authorized denomination, as requested by the holder surrendering the
same.
[IF THIS DEBENTURE IS AN INITIAL DEBENTURE INSERT -- The
Debentures of this series are issuable only in minimum denominations
of $100,000 and any integral multiple of $1,000 in excess thereof.
The Debentures of this series may be transferred only in blocks having
an aggregate principal amount of not less than $100,000. Any transfer
of Debentures of this series in a block having an aggregate principal
amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever.
Any transferee of Debentures of this series having an aggregate
principal amount of less than $100,000 shall be deemed not to be the
holder of such Debentures for any purpose, including, but not limited
to, the receipt of payments on such Debentures, and such transferee
shall be deemed to have no interest whatsoever in such Debentures.]
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBENTURES, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
-----------
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Indenture in the manner and to
the extent herein and therein provided.
SECTION 7.2
-----------
The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 7.3
-----------
This First Supplemental Indenture and each Debenture shall
be deemed to be a contract made under the internal laws of the State
of New York, and for all purposes shall be construed in accordance
with the laws of said State without regard to conflict of laws
principles thereof.
SECTION 7.4
-----------
In case any one or more of the provisions contained in this
First Supplemental Indenture or in a series of Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this
First Supplemental Indenture or of such series of the Debentures, but
this First Supplemental Indenture and such series of the Debentures
shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, as of the day and
year first above written.
LEUCADIA NATIONAL CORPORATION
By: /s/ Barbara Lowenthal
----------------------------
Name: Barbara Lowenthal
Title: Vice President
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Patricia Kelly
-----------------------------
Name: Patricia Kelly
Title: Vice President
NYFS04...:\30\76830\0146\1197\IND1297X.030