Exhibit 5
BERKSHIRE HATHAWAY INC.
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx 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):
BERKSHIRE HATHAWAY INC., of 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000,
incorporated under the laws of Delaware (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 (the "Notice
Period") to the Guarantor at the above address (or such other address for notice
as the Guarantor shall have last furnished in writing to the Administrative
Agent) and to Leucadia National Corporation ("LNC") that the obligations of the
Guarantor hereunder and of LNC under the LNC 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
obligations of the Guarantor hereunder in respect of an amount equal to ten
percent (10%) of any Payment Demand shall only become due and payable if, upon
the expiration of the Notice Period, LNC has failed to satisfy its obligations
under the LNC Guaranty. 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
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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 or LNC by the Administrative Agent or any Lender upon the insolvency,
bankruptcy or reorganization of the Borrower, LNC 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 Chasing Date.
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The Guarantor hereby covenants and agrees that, so long as this Guaranty
remains in full force and effect, it will deliver the following to the
Administrative Agent if it has not filed the following with the Securities and
Exchange Commission by the respective dates stated below:
(a) as soon as practicable, but in any event not later than ninety-
five (95) days after the end of each fiscal year of the Guarantor, the
consolidated balance sheet of the Guarantor, as at the end of such year,
and the related consolidated statement of income and consolidated statement
of cash flow for such year, prepared in accordance with GAAP, and certified
without qualification by Deloitte & Touche LLP or other internationally
recognized ("Big 5") certified public accountants.
(b) as soon as practicable, but in any event not later than fifty (50)
days after the end of each of the first three fiscal quarters of the
Guarantor, copies of the unaudited consolidated balance sheet of the
Guarantor as at the end of such quarter, and the related consolidated
statement of income and consolidated statement of cash flow for the portion
of such fiscal year then elapsed, prepared in accordance with GAAP.
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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.
BERKSHIRE HATHAWAY INC.
By: /S/ XXXX X. HAMBURG
____________________________________
Name: Xxxx X. Hamburg
Title: Vice President
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
Delaware, (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
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a 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 Deloitte & Touche
LLP. 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.
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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.
