Exhibit 10.36

 

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LAZARD GROUP FINANCE LLC

 

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SECOND SUPPLEMENTAL INDENTURE

Dated as of May 10, 2005

 

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THE BANK OF NEW YORK,

 

as Trustee

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I
Definitions
ARTICLE II
Designation and Terms of the Securities
SECTION 2.01.		Title and Aggregate Principal Amount		6
SECTION 2.02.		Execution		6
SECTION 2.03.		Stated Maturity		6
SECTION 2.04.		Other Terms and Form of the Notes		6
SECTION 2.05.		Further Issues		6
SECTION 2.06.		Interest and Principal		6
SECTION 2.07.		Issuance of Notes		7
SECTION 2.08.		Place of Payment		7
SECTION 2.09.		Depositary; Registrar		7
SECTION 2.10.		Special Event Redemption		8
SECTION 2.11.		Redemption at the Option of Holder; Sinking Fund		8
SECTION 2.12.		Listing		8
SECTION 2.13.		Registration Statement		8
SECTION 2.14.		Remarketing		8
SECTION 2.15.		Optional Remarketing		9
ARTICLE III
Covenants
SECTION 3.01.		Payment of Additional Amounts		10
ARTICLE IV
Transfer and Exchange
SECTION 4.01.		Exchanges of Global Note for Non Global Note		10
SECTION 4.02.		Legends		10
SECTION 4.03.		Cancellation and/or Adjustment of Global Notes		12
ARTICLE V
Defeasance

 

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SECTION 5.01.		Defeasance and Covenant Defeasance		12
ARTICLE VI
Miscellaneous
SECTION 6.01.		Ratification of Original Indenture; Supplemental Indentures Part of Original Indenture		12
SECTION 6.02.		Concerning the Trustee		12
SECTION 6.03.		Tax Treatment		13
SECTION 6.04.		Counterparts		13
SECTION 6.05.		GOVERNING LAW; WAIVER OF JURY TRIAL		13
SECTION 6.06.		Judgment Currency		13

 

Exhibit A		Form of Note

 

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SECOND SUPPLEMENTAL INDENTURE, dated as of May 10, 2005 (this “Second Supplemental Indenture”), to the Indenture, dated as of May 10, 2005 (the “Original Indenture”), as supplemented by the First Supplemental Indenture, dated as of May 10, 2005 (the “First Supplemental Indenture”), between LAZARD GROUP FINANCE LLC, a Delaware limited liability company (the “Company”), and THE BANK OF NEW YORK, a New York banking corporation, as trustee (the “Trustee”).

 

WHEREAS, the Company and the Trustee have heretofore executed and delivered the (i) Original Indenture to provide for the issuance from time to time of Securities (as defined in the Original Indenture) of the Company, to be issued in one or more Series and (ii) the First Supplemental Indenture for the purpose of establishing the designation, form, terms and conditions of the Securities which comprise a part of the Unit and are purchased in a public offering;

 

WHEREAS, Sections 2.02 and 9.01 of the Original Indenture provide, among other things, that the Company and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the purpose of establishing the designation, form, terms and conditions of Securities of any Series of Securities permitted to be issued pursuant to the Original Indenture;

 

WHEREAS, the Company (i) desires the issuance of a Series of Securities to be designated as hereinafter provided and (ii) has requested the Trustee to enter into this Second Supplemental Indenture for the purpose of establishing the designation, form, terms and conditions of the Securities of such Series which are to be purchased by the Private Purchaser pursuant to the Investment Letter;

 

WHEREAS, the Company has duly authorized the creation of an issue of its 6.120% Senior Notes initially due 2035 (the “6.120% Senior Notes” or the “Notes”, which expression includes any further notes issued pursuant to Section 2.05 hereof and forming a single series therewith) of substantially the tenor and amount hereinafter set forth; and WHEREAS, all action on the part of the Company necessary to authorize the issuance of the 6.120% Senior Notes under the Original Indenture, the First Supplemental Indenture and this Second Supplemental Indenture (the Original Indenture, as supplemented by the First Supplemental Indenture and this Second Supplemental Indenture, being hereinafter called the “Indenture”) has been duly taken.

 

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

 

That, in order to establish the designation, form, terms and conditions of, and to authorize the authentication and delivery of, the 6.120% Senior Notes to the Private Purchaser, and in consideration of the acceptance of the 6.120% Senior Notes by the Private Purchaser thereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

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ARTICLE I

 

Definitions

 

(a) Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in the Original Indenture.

 

(b) The rules of interpretation set forth in the Original Indenture shall be applied hereto as if set forth in full herein;

 

(c) the following terms shall have the respective meanings ascribed thereto in the Purchase Contract Agreement: Business Day; Depository Participant; Last Failed Remarketing; Normal Units; Private Purchaser, Purchase Contract Agent; Remarketing Agreement; Remarketing Date; Remarketing Fee; Reset Date; Separate Notes; Special Event; Stock Purchase Date; Subsequent Remarketing Date; and Treasury Portfolio Purchase Price; and

 

(d) For all purposes of this Second Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the following respective meanings (such meanings shall apply equally to both the singular and plural forms of the respective terms):

 

“6.120% Senior Note” has the meaning set forth in the recitals hereto.

 

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of DTC, Euroclear and Clearstream that apply to such transfer or exchange.

 

“Definitive Note” means a 6.120 % Senior Note in definitive registered form without coupons.

 

“DTC” has the meaning set forth in Section 2.07 hereof.

 

“DTC Legend” means the legend set forth in Section 4.02(b), which is required to be placed on all Global Notes, for which DTC is acting as the Depositary.

 

“Global Note Legend” means the legend set forth in Section 4.02(a), which is required to be placed on all Global Notes.

 

“Global Notes” means the Notes substantially in the form of Exhibit A hereto, issued in accordance with Section 2.15 of the Original Indenture and Section 2.07 hereof.

 

“Interest Payment Date” has the meaning set forth in Section 2.06 hereof.

 

“Issue Date” means May 10, 2005.

 

“Investment Letter” means that certain Letter Agreement dated as of March 15, 2005, by and between the Private Purchaser, Lazard Ltd and Lazard LLC.

 

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“Lazard LLC” means Lazard LLC, a Delaware limited liability company.

 

“Notes” has the meaning set forth in the recitals hereto.

 

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear or Clearstream) as indirect participants.

 

“Pledge Agreement” means the Pledge Agreement, dated as of May 10, 2005, between the Company, The Bank of New York, as Purchase Contract Agent, and as attorney-in-fact for Holders of the Units, and The Bank of New York, as Collateral Agent, Custodial Agent and Securities Intermediary.

 

“Private Purchaser Legend” shall mean the legend restricting transfer provided by Section 3.19 of the Purchase Contract Agreement set forth in Section 4.2 (c).

 

“Purchase Contract Agreement” shall mean the Purchase Contract Agreement, dated as of May 10, 2005, between the Company and The Bank of New York, as purchase contract agent.

 

“Relevant Date” means, in respect of any payment, the date on which such payment first becomes due and payable, but if the full amount of the moneys payable has not been received by the Trustee on or prior to such due date, it means the first date on which, the full amount of such moneys having been so received and being available for payment to Holders, notice to that effect shall have been duly given to the Holders of the Notes.

 

“Reset Rate” means the interest rate applicable to the Notes following a Successful Remarketing, which shall be the rate of interest that, as determined by the Remarketing Agent, will, when applied to the outstanding Notes, enable the then current aggregate market value of the Notes to have a value equal to 100.5% of the aggregate principal amount of the Notes as of the Remarketing Date or as of any Subsequent Remarketing Date, as the case may be.

 

“Special Event Redemption Amount” means for each Note, whether or not included in a Normal Unit, the greater of (a) the principal amount of such Note and (b) the product of (i) the principal amount of such Note and (ii) a fraction the numerator of which is the Treasury Portfolio Purchase Price and the denominator of which is (x) in the case of a Special Event redemption occurring prior to a Successful Remarketing, the aggregate principal amount of the Notes included in Normal Units and (y) in the case of a Special Event redemption occurring after a Successful Remarketing or after the Stock Purchase Date, the aggregate principal amount of the Notes.

 

“Stated Maturity Date” has the meaning set forth in Section 2.03 hereof.

 

“Successful Remarketing” has the meaning set forth in Section 2.06 hereof.

 

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ARTICLE II

 

Designation and Terms of the Securities

 

SECTION 2.01. Title and Aggregate Principal Amount. There is hereby authorized one series of Securities designated the 6.120% Senior Notes initially due 2035, limited in aggregate principal amount to $150,000,000, which amount to be issued shall be as set forth in any Company Order for the authentication and delivery of Notes pursuant to the Original Indenture. The Notes shall constitute senior, unsecured and unsubordinated obligations of the Company and shall rank pari passu with all other unsecured and unsubordinated indebtedness of the Company from time to time outstanding. The Notes shall be issuable only in registered form and without coupons in denominations of $1,000 and any integral multiples thereof except that an interest in a Note held as part of a Normal Unit 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.

 

SECTION 2.02. Execution. The Notes may forthwith be executed by the Company and delivered to the Trustee for authentication and delivery by the Trustee in accordance with the provisions of Section 2.04 of the Original Indenture.

 

SECTION 2.03. Stated Maturity. The Notes shall mature (a) in the event of a Successful Remarketing, on any date no earlier than May 15, 2010 and no later than May 15, 2035, (b) in the event of a Last Failed Remarketing, on the Stock Purchase Date, and (c) otherwise on May 15, 2035 (the “Stated Maturity Date”). Any change in the Stated Maturity Date pursuant to clause (a) shall be effected pursuant to a Company Order.

 

SECTION 2.04. Other Terms and Form of the Notes. The Notes shall have and be subject to such other terms as provided in the Original Indenture and this Second Supplemental Indenture and shall be evidenced by one or more Global Notes in the form of Exhibit A hereof and as set forth in Section 2.09 hereof.

 

SECTION 2.05. Further Issues. Subject to Section 2.01 of the Original Indenture, the Company may from time to time, without the consent of the Holders of the Notes and in accordance with the Original Indenture and this Second Supplemental Indenture, create and issue further notes having the same terms and conditions as the Notes in all respects (or in all respects except for the first payment of interest) so as to form a single series with the Notes.

 

SECTION 2.06. Interest and Principal. (a) Each Note shall bear interest from its Issue Date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, initially at the rate of 6.120% per annum (the “Initial Interest Rate”). In the event the Notes are successfully remarketed (“Successful Remarketing”) pursuant to the Purchase Contract Agreement and the Remarketing Agreement, each Note shall bear interest at the Reset Rate from and including the Reset Date to the date on which the principal of the Notes is paid or made available for payment. Interest on the Notes 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 the Stock Purchase Date, interest on the Notes shall be payable, semi-annually in arrears on May 15 and November 15 of each year, until the principal

 

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thereof is paid or made available for payment. Each such date of interest payment referred to above as “Interest Payment Date.” The interest so payable, on any such Interest Payment Date, will be paid to the Holder in whose name the 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 “Regular Record Date”).

 

(b) 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, as applicable, period for which interest is computed shall 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. Payments of the principal of and interest on the Notes shall be made in Dollars, and the Notes shall be denominated in Dollars.

 

SECTION 2.07. Issuance of Notes. The Notes, on original issuance, shall be issued in the form of (i) one or more definitive, fully registered Notes registered initially in the name of The Bank of New York, as Purchase Contract Agent, and (ii) with respect to any Notes that are no longer a component of Normal Units and released from the lien of the Pledge Agreement and the restrictions on transfer contained in the Investment Letter, one fully registered Global Note registered in the name of The Depository Trust Company (“DTC”), as Depositary, or its nominee, and deposited with the Trustee, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Separate Notes represented thereby (or such other accounts as they may direct).

 

SECTION 2.08. Place of Payment. The place of payment where the Notes issued in the form of Definitive Notes may be presented or surrendered for payment, where the principal of and interest and any other payments due on the Notes issued in the form of Definitive Notes are payable, where the Notes may be surrendered for registration of transfer or exchange and where notices and demands to and upon the Company in respect of the Notes and the Indenture may be served shall be in the Borough of Manhattan, The City of New York, and the office or agency maintained by the Company for such purpose shall initially be the Corporate Trust Office of the Trustee. All payments on Notes issued in the form of Global Notes shall be made by wire transfer of immediately available funds to the Depositary and, at the option of the Company, payment of interest on the Notes issued in the form of Definitive Notes may be made by check mailed to registered Holders.

 

SECTION 2.09. Depositary; Registrar.

 

(a) The Company initially appoints DTC to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee to act as the Registrar and the paying agent and designates the Trustee’s New York office as the office or agency referred to in Section 2.05 of the Original Indenture.

 

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(b) Unless and until it is exchanged for definitive Notes in accordance with the terms of the Original Indenture, a Global Note may be transferred, in whole but not in part, only to another nominee of the Depositary, or to a successor Depositary selected or approved by the Company or to a nominee of such successor Depositary.

 

SECTION 2.10. Special Event Redemption. 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 Notes that form a part of Normal Units will be applied as described in the Purchase Contract Agreement and the Pledge Agreement.

 

SECTION 2.11. Redemption at the Option of Holder; Sinking Fund. The Notes shall not be redeemable at the option of any Holder thereof, upon the occurrence of any particular circumstances or otherwise. The Notes will not have the benefit of any sinking fund.

 

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 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 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.