Exhibit 4
LEUCADIA NATIONAL CORPORATION
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone 000-000-0000
GUARANTY
TO: FLEET SECURITIES, INC., AS ADMINISTRATIVE AGENT AND THE LENDERS FROM TIME
TO TIME PARTY TO THE LOAN AGREEMENT (AS DEFINED BELOW):
LEUCADIA NATIONAL CORPORATION, of 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, incorporated under the laws of the State of New York (hereinafter
referred to as the "Guarantor"), in order to induce the Lenders and the
Administrative Agent under that certain Loan Agreement dated as of August 21,
2001 (as amended, restated or modified from time to time, the "Loan Agreement")
and the related Loan Documents, by and among BERKADIA LLC (the "Borrower"), the
Lenders from time to time party thereto (the "Lenders") and FLEET SECURITIES,
INC. as administrative agent for the Lenders (the "Administrative Agent"), to
make the Loans evidenced by the Loan Agreement and the Notes to the Borrower,
does hereby guarantee irrevocably and unconditionally the punctual payment and
performance of the Obligations, and not only of their collectability, to the
Lenders and the Administrative Agent, as applicable, together with all interest
and other charges and reasonable expenses attributable thereto and all
reasonable expenses incurred by the Lenders and the Administrative Agent, in
enforcing their rights under this Guaranty. Should the Borrower default in the
payment or performance of any of the Obligations as and when they become due in
accordance with the terms of the Loan Agreement and the other Loan Documents,
the Administrative Agent shall provide five (5) Business Days' prior written
notice to the Guarantor at the above address (or at such other address for
notice as the Guarantor shall last have furnished in writing to the
Administrative Agent) and to Berkshire Hathaway Inc. ("BH") that the obligations
of the Guarantor hereunder and of BH under the BH Guaranty, in respect of such
payment or performance shall become immediately due and payable as of the date
stated in such notice (a "Payment Demand"). Notwithstanding the foregoing, the
Guarantor's liability in respect of each Payment Demand hereunder shall be
limited to an amount equal to ten percent (10%) of such Payment Demand.
Payments by the Guarantor may be required hereunder on any number of occasions,
and shall be made to the Administrative Agent in accordance with the relevant
Payment Demand. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Loan Agreement.
The liability of the Guarantor under this Guaranty shall be unconditional
irrespective of (i) any lack of enforceability of any Obligation, (ii) any
change of the time, manner or place of payment, or any other term of any
Obligation, (iii) any exchange, release, impairment or non-perfection of any
collateral securing payment of any Obligation, (iv) any law, regulation or order
of any jurisdiction affecting any term of any Obligation or the Lenders' or the
Administrative Agent's rights with respect thereto, and (v) any other
circumstance which might otherwise
constitute a defense available to, or a discharge of, the Borrower or a
guarantor other than the irrevocable payment and satisfaction in full in cash of
all of the Obligations.
The Guarantor waives promptness, diligence, presentment, demand, protest,
notice of acceptance and all other notices with respect to any Obligation and
this Guaranty, all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any
requirement that the Administrative Agent or any Lender exhaust any right or
take any action against the Borrower or any collateral security, and all
suretyship defenses generally.
This is a continuing guaranty and shall remain in full force and effect
until the irrevocable payment and satisfaction in full in cash of all of the
Obligations. This Guaranty shall continue to be effective or be reinstated,
notwithstanding the foregoing, if at any time a court of proper jurisdiction
orders any payment made with respect to any Obligation to be returned to the
Borrower by the Administrative Agent or any Lender upon the insolvency,
bankruptcy or reorganization of the Borrower or FNV Capital, or otherwise, all
as though such payment had not been made or received.
Until the irrevocable payment and satisfaction in full in cash of all of
the Obligations, the Guarantor (a) shall not exercise any rights against the
Borrower arising as a result of payment by the Guarantor hereunder, by way of
subrogation, reimbursement, restitution or contribution, (b) will assign to the
Lenders the proceeds of any claim in respect of any payment hereunder in any
bankruptcy, insolvency or reorganization case or proceedings of any nature in
which the Borrower is the debtor, and (c) will not claim any setoff, recoupment
or counterclaim against the Borrower for any payment made hereunder in respect
of any liability of the Guarantor to the Borrower.
The Guarantor hereby makes the representations and warranties set forth on
Exhibit A hereto as of the Closing Date.
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The Guarantor will promptly notify the Administrative Agent in writing of
any event or occurrence with respect to it which could reasonably be expected to
have a Material Adverse Effect.
The Administrative Agent's books and records shall be prima facie evidence
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(absent manifest error) of any claim the Lenders and the Administrative Agent
may make under this Guaranty.
This Guaranty shall be binding upon the Guarantor and its successors and
shall inure to the benefit of the Administrative Agent and the Lenders and their
respective successors, transferees and assigns. The Guarantor may not assign
any of its obligations hereunder.
This Guaranty shall be governed by and construed in accordance with the
laws of State of New York. The Guarantor agrees that any suit for the
enforcement of this Guaranty may be brought in the courts of the State of New
York or any federal court sitting therein and consents to the nonexclusive
jurisdiction of such court and service of process in any such suit being made
upon the Guarantor by mail at the address set forth in this Guaranty.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed as of the 21st day of August, 2001.
LEUCADIA NATIONAL CORPORATION
By: /s/ XXXXXX X. ORLANDO
______________________________
Name: Xxxxxx X. Orlando
Title: Authorized Officer
Acknowledged and Agreed:
FLEET SECURITIES, INC.,
as Administrative Agent
By: /s/ XXXXXX X. XXXXXXX
_____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Director
EXHIBIT A TO GUARANTY
Capitalized terms used herein without definition shall have the definitions
given to such terms in the Guaranty or the Loan Agreement.
1. Corporate Authority.
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1.1 Incorporation; Good Standing. The Guarantor (a) is a corporation
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duly organized, validly existing and in good standing under the laws of New
York, (b) has all requisite corporate power to own its material property
and conduct its business as now conducted and as presently contemplated,
and (c) is in good standing as a foreign corporation and is duly authorized
to do business in each jurisdiction where such qualification is necessary
except where a failure to be so qualified would not have a Material Adverse
Effect.
1.2 Authorization. The execution, delivery and performance of the
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Guaranty and the transactions contemplated thereby (a) are within the
corporate authority of the Guarantor, (b) have been duly authorized by all
necessary corporate proceedings, (c) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which the Guarantor is subject or any judgment, order, writ,
injunction, license or permit applicable to the Guarantor except such as
would not have a Material Adverse Effect, and (d) do not conflict with any
provision of the Governing Documents of, or any agreement or other
instrument binding upon, the Guarantor.
1.3 Enforceability. The execution and delivery of the Guaranty will
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result in valid and legally binding obligations of the Guarantor
enforceable against it in accordance with the terms and provisions thereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally
the enforcement of creditors' rights and except to the extent that the
availability of certain equitable remedies is subject to the discretion of
the court before which any proceeding therefor may be brought.
2. Governmental Approvals. The execution, delivery and performance by the
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Guarantor of the Guaranty and the transactions contemplated thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those (a) already obtained, and (b) the failure to obtain
which would not have, with respect to it, a Material Adverse Effect.
3. Financial Statements. There has been furnished to each of the Lenders a
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consolidated balance sheet of the Guarantor as at the Balance Sheet Date, and
the consolidated statement of income and consolidated statement of cash flow of
the Guarantor for the fiscal year then ended, certified by
PricewaterhouseCoopers. Such balance sheet, statement of income and statement of
cash flow have been prepared in accordance with generally accepted accounting
principles and fairly present the consolidated financial condition of the
Guarantor as at such date and the results of operations for the fiscal year then
ended. There were no contingent liabilities of the Guarantor as of such date
involving material amounts, known to the officers of the Guarantor, which were
required by GAAP to be disclosed in such balance sheets and/or the notes related
thereto which were not so disclosed.
4. No Material Changes, etc. Since the Balance Sheet Date, there has been
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no event or occurrence with respect to it which has had a Material Adverse
Effect.