EXHIBIT 4.02
THIRD SUPPLEMENTAL INDENTURE
This THIRD SUPPLEMENTAL INDENTURE ("the THIRD SUPPLEMENTAL
INDENTURE"), dated as of December 19, 2005, is entered into by and among Lazard
Group LLC (the "COMPANY"), a Delaware Limited Liability company, The Bank of New
York, a New York banking corporation, as Trustee ("TRUSTEE") and, for purposes
of consent pursuant to Section 9.02 of the Indenture (as defined below), Lazard
Group Finance LLC, a Delaware limited liability company ("LAZARD GROUP
FINANCE").
RECITALS
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture, dated as of May 10, 2005 (the "INDENTURE"), providing
for the issuance from time to time of securities to be issued in one or more
series as provided in the Indenture (capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Indenture);
WHEREAS, the Company has heretofore executed and delivered to
the Trustee a Second Supplemental Indenture (the "SECOND SUPPLEMENTAL
INDENTURE"), dated as of May 10, 2005, by and between the Company and the
Trustee, providing for the issuance of 6.120% Senior Notes Initially Due 2035 in
aggregate principal amount of $287,500,000 (the "$287,500,000 NOTES") and 6.120%
Senior Notes Initially Due 2035 in aggregate principal amount of $150,000,000
(the "$150,000,000 NOTES," and, together with the $287,500,000 Notes, the
"NOTES");
WHEREAS, pursuant to the Agreement and Plan of Merger (the
"MERGER AGREEMENT"), dated as of December 19, 2005, by and between Lazard Group
Finance and the Company, Lazard Group Finance shall merge with and into the
Company (the "MERGER"), the separate existence of Lazard Group Finance shall
cease and the Company shall survive and continue to exist as the continuing
company (the "CONTINUING COMPANY");
WHEREAS, Lazard Group Finance has heretofore executed and
delivered to the Bank of New York, as Trustee ("FINANCE TRUSTEE") an Indenture,
dated as of May 10, 2005 (the "LAZARD GROUP FINANCE INDENTURE"), providing for
the issuance from time to time of securities to be issued in one or more series
as provided in the Indenture;
WHEREAS, Lazard Group Finance has heretofore executed and
delivered to the Finance Trustee a First Supplemental Indenture, dated as of May
10, 2005, by and between the Company and the Finance Trustee, providing for the
issuance of 6.120% Senior Notes Initially Due 2035 in principal amount of
$287,500,000, and a Second Supplemental Indenture, dated as of May 10, 2005, by
and between the Company and the Finance Trustee, providing for the issuance of
6.120% Senior Notes Initially Due 2035 in aggregate principal amount of
$150,000,000 (collectively, the "LAZARD GROUP FINANCE NOTES");
WHEREAS, at the Effective Time (as defined in the Merger
Agreement) and pursuant to Section 5.01(b)(B) of the Lazard Group Finance
Indenture, the Company and the Trustee will exchange the Lazard Group Finance
Notes for the Notes;
WHEREAS, the Company and Lazard Group Finance have agreed to
certain technical modifications of the Notes in order to give effect to the
provisions of Section 5.01(b)(B) of the Lazard Group Finance Indenture;
WHEREAS, at the Effective Time and pursuant to Section 9.05 of
the Indenture, Lazard Group Finance shall deliver the Notes to the Trustee, and
the Trustee is hereby authorized and directed to attach to each Note as Exhibit
A thereto a copy of this Third Supplemental Indenture, to place a notation on
the $287,500,000 Note reading, "The terms of this Note have been revised in
accordance with Section 2 of the Third Supplemental Indenture, dated as of
December 19, 2005, by and among Lazard Group LLC and The Bank of New York, as
Trustee, attached hereto as Exhibit A," and to place a notation on the
$150,000,000 Note reading, "The terms of this Note have been revised in
accordance with Section 3 of the Third Supplemental Indenture, dated as of
December 19, 2005, by and among Lazard Group LLC and The Bank of New York, as
Trustee, attached hereto as Exhibit A";
WHEREAS, Section 9.02 of the Indenture provides that the
Company and the Trustee may amend the Notes without notice to any Holder but
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding affected by such amendment;
WHEREAS, the sole Holder of the Notes, Lazard Group Finance,
shall consent to this amendment in writing by executing this Third Supplemental
Indenture solely for the purpose of consent pursuant to Section 9.02 of the
Indenture; and
WHEREAS, the Company has delivered, or caused to be delivered
on its behalf, to the Trustee, Opinions of Counsel and an Officer's Certificate
stating that this Third Supplemental Indenture complies with Section 9.02, that
all conditions precedent provided for in the Indenture related to the execution
and delivery of this Third Supplemental Indenture have been complied with, and
that execution and delivery of this Third Supplemental Indenture is authorized
or permitted under the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby mutually covenant and agree as
follows.
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SECTION 1. TECHNICAL MODIFICATION TO THE SECOND SUPPLEMENTAL
INDENTURE. Section 2 of the Second Supplemental Indenture is amended by adding
after Section 2.11 thereof, the following:
SECTION 2.12. LISTING. In the event that the Notes
become separately traded from the Normal Units, to the extent that
applicable exchange listing requirements are met, the Company shall
use commercially reasonable efforts to cause such Notes to be listed
on the securities exchange on which the Normal Units are then listed.
SECTION 2.13. REGISTRATION STATEMENT. The Company
shall use its commercially reasonable efforts to ensure that, if
required by applicable law, a registration statement with regard to
the full amount of the Senior Notes to be remarketed in the
remarketing shall be effective with the Securities and Exchange
Commission in a form that will enable the Remarketing Agent to rely on
it in connection with such remarketing.
SECTION 2.14. REMARKETING. (a) The Notes may be
remarketed at a specified price on certain dates as specified in
Section 5.04 of the Purchase Contract Agreement and in Section 4.05 of
the Notes Pledge Agreement, and the remarketing procedures set forth
in such sections shall apply to the Notes which provisions are hereby
incorporated into this Second Supplemental Indenture mutatis mutandis.
(b) The right of each Holder of Senior Notes to have
its Senior Notes tendered for purchase will be limited to the extent
that (i) the Remarketing Agent conducts a remarketing pursuant to the
terms of the Remarketing Agreement, (ii) the Senior Notes included in
the remarketing have not been called for redemption upon the
occurrence of a Special Event, (iii) the Remarketing Agent is able to
find a purchaser or purchasers for the remarketed Notes at a Reset
Rate such that the aggregate value of such remarketed Senior Notes is
equal to 100.5% of the aggregate principal amount of such Senior
Notes, and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent.
(c) If a Successful Remarketing occurs, the
Remarketing Agent shall as soon as practicable on the Remarketing Date
or on the Subsequent Remarketing Date, as the case may be, advise by
telephone:
(i) the Depositary and the Company of the Reset Rate
determined in the Remarketing and the aggregate principal amount of
Senior Notes sold in the Remarketing;
(ii) each purchaser or the Depository Participant
thereof of the Reset Rate and the aggregate principal amount of
remarketed Senior Notes such purchaser is to purchase; and
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(iii) each purchaser to give instructions to its
Depository Participant to pay the purchase price on the date of
settlement for such Remarketing in same day funds against delivery of
the remarketed Senior Notes purchased through the facilities of DTC.
(d) In the event of a Last Failed Remarketing the
interest rate payable on the Senior Notes will not be reset.
(e) In accordance with DTC's normal procedures on the
date of settlement of such Remarketing, the transactions described
above with respect to each Senior Note remarketed in the remarketing
shall be executed through DTC if the Senior Notes are registered in
the name of DTC, and in that case, the accounts of the respective
Depository Participants shall be debited and credited and such
remarketed Senior Notes delivered by book entry as necessary to effect
purchases and sales of such remarketed Senior Notes. DTC shall make
payment in accordance with its normal procedures.
(f) The Remarketing Agent is not obligated to
purchase any Senior Notes that otherwise would remain unsold in the
remarketing. Neither the Company nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of
the Senior Notes for remarketing.
(g) Under the Remarketing Agreement the Company in
its capacity as issuer of the Senior Notes shall be liable for and
shall pay any and all costs and expenses incurred in connection with
the remarketing, other than the Remarketing Fee.
(h) The settlement procedures set forth herein,
including provisions for payment by purchasers of the remarketed
Senior Notes in the Remarketing, shall be subject to modification to
the extent required by DTC or if the book-entry system is not
available for the remarketed Senior Notes at the time of the
remarketing, to facilitate the remarketing of the remarketed Senior
Notes in certificated form, and shall provide for the authentication
and delivery of Senior Notes in a principal amount equal to the
unremarketed portion of such Senior Notes. In addition, the
Remarketing Agent may modify the settlement procedures set forth
herein in order to facilitate the settlement process.
SECTION 2.15 OPTIONAL REMARKETING. On or prior to the
thirteenth Business Day immediately preceding the Stock Purchase Date
but no earlier than the sixteenth Business Day immediately preceding
the Stock Purchase Date, Holders of Separate Notes may elect to have
their Separate Notes remarketed by delivering their Separate Notes,
together with a notice of such election, substantially in the form of
Exhibit C to the Pledge Agreement, to the Custodial Agent. A Holder of
Separate Notes electing to have its Separate Notes remarketed will
also have the right to withdraw such election by written notice to the
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Custodial Agent, substantially in the form of Exhibit D to the Pledge
Agreement, on or prior to the thirteenth Business Day immediately
preceding the Stock Purchase Date, upon which notice the Custodial
Agent will return such Separate Notes to such Holder. If the Holder of
the Separate Notes delivers only such notice but not the Separate
Notes subject to such notice, then none of such Holder's Separate
Notes shall be included in the Remarketing. Once the Holder of
Separate Notes elects to participate in the Remarketing, such Separate
Notes will be remarketed in the Remarketing unless such notice is
properly withdrawn.
SECTION 2.16. DEFINITIONS. All capitalized terms used
in Section 2 hereof but not defined herein shall have the meanings
assigned thereto in the Purchase Contract Agreement.
SECTION 2. CONFORMITY OF $287,500,000 NOTE TO THE FORM OF
LAZARD GROUP FINANCE NOTES. Effective at the Effective Time, the form of
$287,500,000 Note is amended and restated to read in its entirety as follows,
and the $287,500,000 Notes shall be deemed replaced for all purposes by the note
reading as follows:
LAZARD GROUP LLC
6.120% SENIOR NOTE INITIALLY DUE 2035
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR 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 THE DEPOSITORY TRUST COMPANY, AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
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2.04 OF THE ORIGINAL INDENTURE, (B) THIS SECURITY MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.15(B) OF THE ORIGINAL
INDENTURE, (C) THIS SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.13 OF THE ORIGINAL INDENTURE AND
(D) EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.15(B) OF THE ORIGINAL
INDENTURE, THIS SECURITY MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART,
ONLY (X) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (Y) BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR (Z) BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Remainder of Page Intentionally Left Blank]
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CUSIP: 52107R AA 1
ISIN: US52107R AA 1
No. R1 $287,500,000
LAZARD GROUP LLC
6.120% SENIOR NOTE INITIALLY DUE 2035
LAZARD GROUP LLC, a Delaware limited liability
company (the "COMPANY", which term includes any successor Person under
the Indenture hereinafter referred to) for value received, hereby
promises to pay to The Bank of New York, as the Purchase Contract
Agent, the principal sum of Two hundred eighty seven million and five
hundred thousand United States dollars (U.S.$287,500,000), as such
amount may be increased or decreased as set forth on the Schedule of
Increases or Decreases in Global Note annexed hereto, on the Stated
Maturity Date (as defined in the Indenture, which is defined on the
reverse side of this Note), (such date is hereinafter referred to as
the "STATED MATURITY"), and to pay interest thereon, from August 15,
2005, or from the most recent Interest Payment Date (as defined below)
for which interest has been paid or duly provided for, initially at
the rate of 6.120% per annum (the "INITIAL INTEREST RATE"). The
interest rate applicable to this Note may change, as described in the
Second Supplemental Indenture.
Interest on this Note initially shall be payable
quarterly in arrears on February 15, May 15, August 15 and November 15
of each year, commencing August 15, 2005. After May 15, 2008, interest
on this Note shall be payable semi-annually in arrears on May 15 and
November 15 of each year, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or
duly provided for, on any such date will, as provided in the
Indenture, be paid to the Person in whose name this Note is registered
at the close of business on the regular record date for such interest,
which shall be the 15th calendar day (whether or not a business day)
prior to the relevant interest payment date.
The principal of and the interest on the Notes will
be payable at the Corporate Trust Office or, at the option of the
Company, by check mailed to the address of the person entitled thereto
at such person's address as it appears on the register or by wire
transfer to the account maintained in the United States designated by
written notice given ten business days prior to the applicable payment
date by such person.
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The amount of interest payable for any period on any
interest payment date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period
shorter than a full quarterly or semi-annual period, as applicable,
for which interest is computed will be computed on the basis of the
actual number of days elapsed in such a 90-day or 180-day period, as
applicable. In the event that any date on which interest is payable on
the Notes is not a business day, then payment of interest payable on
such date will be made on the next succeeding day which 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.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if fully set forth at
this place.
Unless the certificate of authorization hereon has
been executed by the Trustee referred to on the reverse hereof by the
manual signature of one of its respective authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the Company has caused this Note
to be executed and delivered under its corporate seal.
Dated: May 10, 2005
LAZARD GROUP LLC
By:
-----------------------------
Name:
Title:
[Corporate Seal]
Attest:
-------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated herein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
By:
-----------------------------
Authorized Signatory
Dated: May 10, 2005
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This Note is one of a duly authorized issue of
securities of the Company designated as its "6.120% Senior Notes
initially due 2035" (herein sometimes referred to as the "NOTES"),
issued and to be issued under and pursuant to an Indenture, dated as
of May 10, 2005 (the "ORIGINAL INDENTURE"), duly executed and
delivered between the Company and The Bank of New York, as Trustee
(the "TRUSTEE"), a Second Supplemental Indenture, dated as of May 10,
2005 (the "SECOND SUPPLEMENTAL INDENTURE"), between the Company and
the Trustee, and a Third Supplemental Indenture, dated as of December
19, 2005 (the "THIRD SUPPLEMENTAL INDENTURE") between the Company and
the Trustee (such Original Indenture as amended and supplemented by
the Second Supplemental Indenture and the Third Supplemental
Indenture, the "INDENTURE"), to which Indenture and all subsequent
indentures supplemental thereto relating to the Notes reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee
and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. Capitalized terms
used but not defined in this Note shall have the respective meanings
described in the Indenture.
The Notes are issuable only in registered form
without coupons, in denominations of $1,000 and any integral multiple
thereof except that an interest in a Note held as part of a Normal
Unit (as defined in the Purchase Contract Agreement) represents an
ownership interest of 1/40th, or 2.5%, of a Note in aggregate
principal amount of $1,000 and will therefore correspond to the stated
amount of $25 per Normal Unit. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series
so issued are exchangeable for a like aggregate principal amount of
Notes of a different authorized denomination, as requested by the
Holder surrendering the same.
The Notes replace the notes of substantially the same
terms ("LAZARD GROUP FINANCE NOTES"), issued by Lazard Group Finance
LLC ("LAZARD GROUP FINANCE") pursuant to the Indenture, dated as of
May 10, 2005, by and between Lazard Group Finance and the Bank of New
York, as Trustee ("LAZARD GROUP FINANCE INDENTURE"), and the First
Supplemental Indenture, dated as of May 10, 2005, by and between
Lazard Group Finance and the Bank of New York, as Trustee, as part of
Lazard Ltd's 6.625% Equity Security Units that were originally in the
form of Normal Units, each such Normal Unit initially consisting of
(a) a stock purchase contract (each, a "PURCHASE CONTRACT") under
which (i) the Holder agreed to purchase from the Lazard Ltd on May 15,
2008, a specified number of newly issued shares of Common Stock, par
value $0.01 per share, of Lazard Ltd and (ii) Lazard Ltd
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agreed to pay to the Holder quarterly contract adjustment payments and
(b) a 1/40, or 2.5%, ownership interest in a Note of $1,000 principal
amount. In accordance with the terms of the Lazard Group Finance
Indenture, the Notes replace the Lazard Group Finance Notes as
collateral pledged by the Purchase Contract Agent, on behalf of the
Holders of the Normal Units, to The Bank of New York, as collateral
agent, custodial agent and securities intermediary (the "COLLATERAL
AGENT"), pursuant to the Pledge Agreement, dated as of May 10, 2005
(the "PLEDGE AGREEMENT"), among Lazard Group Finance, the Purchase
Contract Agent and the Collateral Agent, to secure such Holders'
obligations to purchase shares of Common Stock of the Company under
the Purchase Contracts.
The Notes that are a component of Normal Units or
that so elect under Section 2.15 of the Second Supplemental Indenture
will be subject to remarketing and, in the case of a Last Failed
Remarketing, the Collateral Agent for the benefit of the Company
reserves all of its rights as a secured party of the applicable Notes.
If a Special Event shall have occurred and be
continuing (as of the time of giving notice of redemption), the
Company, at its option, may redeem the Notes, in whole but not in
part, upon payment of the aggregate Special Event Redemption Amounts.
Proceeds from such redemption relating to the Notes that form a part
of Normal Units will be applied as described in the Purchase Contract
Agreement and the Pledge Agreement.
The Notes shall constitute the senior, unsecured and
unsubordinated obligations of the Company and shall rank equally in
right of payment with all existing and future senior, unsecured and
unsubordinated obligations of the Company.
No sinking fund is provided for the Notes.
In the case of an Event of Default described in
Section 6.01(5) or 6.01(6) of the Original Indenture, all unpaid
principal of and accrued interest and Additional Amounts on the Notes
then Outstanding shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of
any Notes. In the case of all other Events of Default, if such Event
of Default shall occur and be continuing, the principal of all of the
Notes, together with accrued interest to the date of declaration, may
be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of
the Securities of each series to be af-
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fected under the Indenture at any time by the Company and the Trustee
with the written consent of the Holders of not less than a majority in
principal amount of the Securities at the time Outstanding and
affected thereby. The Indenture also contains, with certain exceptions
as therein provided, provisions permitting Holders of not less than a
majority in principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all the Securities of
such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued in
exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the
Indenture, the Holder of this Note shall not have the right to
institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy
thereunder, unless certain conditions have been satisfied. The
foregoing shall not apply to any suit instituted by any Holder of this
Note for the enforcement of any payment of principal hereof, or any
premium of interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the times,
places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable on the Security Register upon surrender of this Note for
registration of transfer at the Corporate Trust Office of the Trustee
or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New
York (which shall initially be an office or agency of the Trustee), or
at such other offices or agencies as the Company may designate, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees by the Security Registrar. No service charge
shall be made for any such registration of transfer or exchange, but
the Company may require payment of a sum sufficient to recover any tax
or other governmental charge payable in connection therewith.
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Prior to due presentation of this Note for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this
Note is registered as the owner thereof for all purposes, whether or
not such Note be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal (and
premium, if any) or interest on this Note and no recourse under or
upon any obligation, covenant or agreement of the Company in the
Indenture or any indenture supplemental thereto or in any Note, or
because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer
or director or subsidiary, as such, past, present, or future, of the
Company or of any successor corporation, either directly or through
the Company or any 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 consideration for the issue hereof
expressly waived and released.
This Note is a Global Note and is subject to the
provisions of the Indenture relating to Global Notes, including the
limitations in Section 2.08 of the Original Indenture on transfers and
exchanges of Global Notes.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
All capitalized terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in
the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be construed as
though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
-------------------------------
(cust) (minor)
Under Uniform Gifts to Minors
Act
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as
tenants in common
Additional abbreviations may also be used though not on the above
list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoint agent to transfer this Note on the Security
Register. The agent may substitute another to act for him or her.
Dated:
Signed:
Signature Guarantee:
(Sign exactly as your name appears on the other side of this Note)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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SCHEDULE OF INCREASES AND DECREASES
The initial principal amount of this Global Note is
$287,500,000. The following increases or decreases in this Global Note have
been made:
============= ================ =============== ================ ================
Remaining Prin-
Amount of Amount of cipal Amount of Signature of
Decrease Increase this Global Authorized
Date of in Principal in Principal Note Following Signatory of
Increase Amount of this Amount of this such Decrease Trustee or
or Decrease Global Note Global Note or Increase Custodian
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SECTION 3. CONFORMITY OF THE FORM OF $150,000,000 NOTE TO THE
FORM OF LAZARD GROUP FINANCE NOTES. Effective at the Effective Time, the form of
$150,000,000 Note is amended and restated to read in its entirety as follows,
and the $150,000,000 Notes shall be deemed replaced for all purposes by the note
reading as follows:
LAZARD GROUP LLC
6.120% SENIOR NOTE INITIALLY DUE 2035
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE LETTER AGREEMENT DATED AS OF MARCH 15, 2005, BY AND BETWEEN IXIS
CORPORATE & INVESTMENT BANK, LAZARD GROUP LLC AND LAZARD LTD (A COPY
OF WHICH MAY BE OBTAINED FROM THE SECRETARY OF LAZARD GROUP LLC OR
LAZARD LTD) AND ARE SUBJECT TO THE RESTRICTIONS CONTAINED THEREIN
WHICH PROHIBIT AMONG OTHER THINGS ANY DIRECT OR INDIRECT DISPOSITION,
SALE, TRANSFER,PLEDGE, HEDGE (INCLUDING BY WAY OF SHORT SELLING) OR
OTHER
ENCUMBRANCE ("TRANSFER") OF THESE SECURITIES PRIOR TO NOVEMBER 6,
2006. A TRANSFER MADE IN VIOLATION OF THE FOREGOING IS NULL AND VOID
AB INITIO. ADDITIONALLY, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") AND ARE ACCORDINGLY "RESTRICTED SECURITIES"
UNDER U.S. FEDERAL SECURITIES LAWS. THESE SECURITIES MAY NOT BE
RESOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT, OR IN A
TRANSACTION OTHERWISE EXEMPT FROM REGISTRATION.
[Remainder of Page Intentionally Left Blank]
18
No. 1R1 $150,000,000
LAZARD GROUP LLC
6.120 % SENIOR NOTE INITIALLY DUE 2035
LAZARD GROUP LLC, a Delaware limited liability company (the
"COMPANY", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to The Bank of New York, as Purchase Contract Agent,
the principal sum of One hundred fifty million United States dollars
(U.S.$150,000,000) on the Stated Maturity Date (as defined in the
Indenture, which is defined on the reverse side of this Note), (such
date is hereinafter referred to as the "STATED MATURITY"), and to pay
interest thereon, from August 15, 2005, or from the most recent
Interest Payment Date (as defined below) for which interest has been
paid or duly provided for, initially at the rate of 6.120% per annum
(the "INITIAL INTEREST RATE"). The interest rate applicable to this
Note may change, as described in the Second Supplemental Indenture.
Interest on this Note initially shall be payable quarterly in
arrears on February 15, May 15, August 15 and November 15 of each
year, commencing November 15, 2005. After May 15, 2008, interest on
this Note shall be payable semi-annually in arrears on May 15 and
November 15 of each year, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or
duly provided for, on any such date will, as provided in the
Indenture, be paid to the Person in whose name this Note is registered
at the close of business on the regular record date for such interest,
which shall be the 15th calendar day (whether or not a business day)
prior to the relevant interest payment date.
The principal of and the interest on the Notes will be payable
at the Corporate Trust Office or, at the option of the Company, by
check mailed to the address of the person entitled thereto at such
person's address as it appears on the register or by wire transfer to
the account maintained in the United States designated by written
notice given ten business days prior to the applicable payment date by
such person.
The amount of interest payable for any period on any interest
payment date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period
shorter than a full quarterly or semi-annual period, as applicable,
for which interest is computed will be computed on the basis of the
actual number of days elapsed in such a 90-day or 180-day period, as
applicable. In the event that any date on which interest is payable on
the Notes is not a business day, then payment of interest payable on
such date will be made on the next succeeding day which 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.
19
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if fully set forth at this
place.
Unless the certificate of authorization hereon has been
executed by the Trustee referred to on the reverse hereof by the
manual signature of one of its respective authorized signatories, this
Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
20
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered under its corporate seal.
Dated: May 10, 2005
LAZARD GROUP LLC
By:
-----------------------------
Name:
Title:
Attest:
-------------------------
By:
----------------------------
Name:
Title:
21
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
-------------------------------
Authorized Signatory
Dated: May 10, 2005
22
This Note is one of a duly authorized issue of securities of
the Company designated as its "6.120% Senior Notes initially due 2035"
(herein sometimes referred to as the "NOTES"), issued and to be issued
under and pursuant to an Indenture, dated as of May 10, 2005 (the
"ORIGINAL INDENTURE"), duly executed and delivered between the Company
and The Bank of New York, as Trustee (the "TRUSTEE"), a Second
Supplemental Indenture, dated as of May 10, 2005 (the "SECOND
SUPPLEMENTAL INDENTURE"), between the Company and the Trustee, and a
Third Supplemental Indenture, dated as of December 19, 2005 (the
"THIRD SUPPLEMENTAL INDENTURE") between the Company and the Trustee
(such Original Indenture as amended and supplemented by the Second
Supplemental Indenture and the Third Supplemental Indenture, the
"INDENTURE"), to which Indenture and all subsequent indentures
supplemental thereto relating to the Notes reference is hereby made
for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and
are to be, authenticated and delivered. Capitalized terms used but not
defined in this Note shall have the respective meanings described in
the Indenture.
The Notes are issuable only in registered form without
coupons, in denominations of $1,000 and any integral multiple thereof
except that an interest in a Note held as part of a Normal Unit (as
defined in the Indenture) represents an ownership interest of 1/40th,
or 2.5%, of a Note in aggregate principal amount of $1,000 and will
therefore correspond to the stated amount of $25 per Normal Unit. As
provided in the Indenture and subject to certain limitations therein
set forth, Notes of this series so issued are exchangeable for a like
aggregate principal amount of Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
The Notes replace the notes of substantially the same terms
("LAZARD GROUP FINANCE NOTES"), issued by Lazard Group Finance LLC
("LAZARD GROUP FINANCE") pursuant to the Indenture, dated as of May
10, 2005, by and between Lazard Group Finance and The Bank of New
York, as Trustee ("LAZARD GROUP FINANCE INDENTURE") and the Second
Supplemental Indenture, dated as of May 10, 2005, by and between
Lazard Group Finance and The Bank of New York, as Trustee, as part of
Lazard Ltd's 6.625% Equity Security Units that were initially in the
form of Normal Units, each such Normal Unit initially consisting of
(a) a stock purchase contract (each, a "PURCHASE CONTRACT") under
which (i) the Holder agreed to purchase from the Lazard Ltd on May 15,
2008, a specified number of newly issued shares of Common Stock, par
value $0.01 per share, of Lazard Ltd and (ii) Lazard Ltd agreed to pay
to the Holder quarterly contract adjustment payments and (b) a 1/40,
or 2.5%, ownership interest in a Note of $1,000 principal amount. In
accordance with the terms of the Lazard Group Finance Indenture, the
Notes replace the Lazard Group Finance Notes as collateral pledged by
the Purchase Contract Agent, on behalf of the Holders of the Normal
Units, to The Bank of New York, as collateral agent, custodial agent
and securities intermediary (the "COLLATERAL AGENT"), pursuant to the
Pledge Agreement, dated as of May 10, 2005 (the "PLEDGE AGREEMENT"),
among Lazard Group Finance, the Purchase Con-
23
tract Agent and the Collateral Agent, to secure such Holders'
obligations to purchase shares of Common Stock of the Company under
the Purchase Contracts.
The Notes that are a component of Normal Units or that so
elect under Section 2.15 of the Second Supplemental Indenture will be
subject to remarketing and, in the case of a Last Failed Remarketing,
the Collateral Agent for the benefit of the Company reserves all of
its rights as a secured party of the applicable Notes.
If a Special Event shall have occurred and be continuing (as
of the time of giving notice of redemption), the Company, at its
option, may redeem the Notes, in whole but not in part, upon payment
of the aggregate Special Event Redemption Amounts. Proceeds from such
redemption relating to the Notes that form a part of Normal Units will
be applied as described in the Purchase Contract Agreement and the
Pledge Agreement.
The Notes shall constitute the senior, unsecured and
unsubordinated obligations of the Company and shall rank equally in
right of payment with all existing and future senior, unsecured and
unsubordinated obligations of the Company.
No sinking fund is provided for the Notes.
In the case of an Event of Default described in Section
6.01(5) or 6.01(6) of the Original Indenture, all unpaid principal of
and accrued interest and Additional Amounts on the Notes then
Outstanding shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of
any Notes. In the case of all other Events of Default, if such Event
of Default shall occur and be continuing, the principal of all of the
Notes, together with accrued interest to the date of declaration, may
be declared due and payable in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the written consent of the
Holders of not less than a majority in principal amount of the
Securities at the time Outstanding and affected thereby. The Indenture
also contains, with certain exceptions as therein provided, provisions
permitting Holders of not less than a majority in principal amount of
the Securities of any series at the time Outstanding, on behalf of the
Holders of all the Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any
Note issued in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note or such
other Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless certain
conditions have been satisfied. The foregoing shall not apply to any
suit insti-
24
tuted by any Holder of this Note for the enforcement of any payment of
principal hereof, or any premium of interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, places and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is
registrable on the Security Register upon surrender of this Note for
registration of transfer at the Corporate Trust Office of the Trustee
or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New
York (which shall initially be an office or agency of the Trustee), or
at such other offices or agencies as the Company may designate, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees by the Security Registrar. No service charge
shall be made for any such registration of transfer or exchange, but
the Company may require payment of a sum sufficient to recover any tax
or other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered, as
the owner thereof for all purposes, whether or not such Note be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if
any) or interest on this Note and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any
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 consideration for the issue hereof, expressly waived and
released.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
All capitalized terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
25
ABBREVIATIONS
The following abbreviations, when used in
the inscription on the face of this instrument, shall be
construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
----------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not
as tenants in common Additional abbreviations may also be
used though not on the above list.
26
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoint agent to transfer this Note on the Security
Register. The agent may substitute another to act for him or her.
Dated:
Signed:
Signature Guarantee:
(Sign exactly as your name appears on the other side of this Note)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Continuing
Company, as of the date hereof, represents and warrants that: (i) it is a
limited liability company duly organized and validly existing under the laws of
the State of Delaware; (ii) it has full corporate power and authority to execute
and deliver this Third Supplemental Indenture and to perform its obligations
under the Indenture, the First Supplemental Indenture, dated as of May 10, 2005
between the Company and the Trustee (the "First Supplemental Indenture"), the
Second Supplemental Indenture, and this Third Supplemental Indenture in
accordance with their terms; and that (iii) the execution, delivery and
performance of this Third Supplemental Indenture will not violate, conflict with
or constitute a breach of, or a default under its certificate of formation and
limited liability company agreement, or any other material agreement or
instrument to which it is a party or which is binding on it or its assets, and
will not result in the creation of any lien on, or security interest on, any of
its assets.
27
SECTION 5. COVENANTS. All covenants and agreements in this
Third Supplemental Indenture, the Indenture, the First Supplemental Indenture
and the Second Supplemental Indenture and by the Company shall bind its
respective successors and assigns, whether so expressed or not.
SECTION 6. SEPARABILITY. In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 7. NO THIRD PARTY BENEFICIARY. Nothing in this Third
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors under the Indenture, and the Holders (as
defined in the Indenture), any benefit or any legal or equitable right, remedy
or claim under the Indenture, as amended by this Third Supplemental Indenture.
SECTION 8. CONTINUANCE OF INDENTURE; EFFECTIVENESS. This
Third Supplemental Indenture supplements the Indenture and shall be a part of
and subject to all the terms thereof. The Indenture, the Second Supplemental
Indenture and the First Supplemental Indenture, as supplemented by this Third
Supplemental Indenture, shall continue in full force and effect. This Third
Supplemental Indenture shall become effective at, and conditioned upon the
occurrence of, the Effective Time.
SECTION 9. GOVERNING LAW. This Third Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 10. COUNTERPARTS. This Third Supplemental Indenture
may be executed in any number of counterparts, each of which so executed will be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11. TRUSTEE. The Trustee makes no representations as
to the validity or sufficiency of this Third Supplemental Indenture. The
recitals and statements herein are deemed to be those of the Company and Lazard
Group Finance and not of the Trustee.
28
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, as of the day and year first written
above.
LAZARD GROUP LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director &
Chief Financial Officer
LAZARD GROUP FINANCE LLC
(for purposes of consent pursuant
to Section 9.02 of the Indenture)
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Secretary
THE BANK OF NEW YORK,
As Trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
29
