-------------------------------------------------------------------------------
XXXXXX GROUP INTERNATIONAL, INC., as Issuer
THE XXXXXX GROUP INC., as Guarantor
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
INDENTURE
Dated as of September 30, 1997
$300,000,000
Senior Guaranteed Notes
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . . . . . . . . . 1
1.01. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Incorporation by Reference of Trust Indenture Act.. . . . . . .19
1.03. Rules of Construction.. . . . . . . . . . . . . . . . . . . . .20
ARTICLE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
THE NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
2.01. Issuance of Notes.. . . . . . . . . . . . . . . . . . . . . . .20
2.02. Restrictive Legends . . . . . . . . . . . . . . . . . . . . . .21
2.03. Execution and Authentication. . . . . . . . . . . . . . . . . .22
2.04. Registrar and Paying Agent. . . . . . . . . . . . . . . . . . .23
2.05. Paying Agent To Hold Money in Trust.. . . . . . . . . . . . . .23
2.06. Noteholder Lists. . . . . . . . . . . . . . . . . . . . . . . .24
2.07. Transfer and Exchange.. . . . . . . . . . . . . . . . . . . . .24
2.08. Replacement Notes.. . . . . . . . . . . . . . . . . . . . . . .24
2.09. Book-Entry Provisions for Global Note.. . . . . . . . . . . . .24
2.10. Special Transfer Provisions.. . . . . . . . . . . . . . . . . .26
2.11. Outstanding Notes.. . . . . . . . . . . . . . . . . . . . . . .27
2.12. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . .27
2.13. Temporary Notes.. . . . . . . . . . . . . . . . . . . . . . . .27
2.14. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . .27
2.15. Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . .28
2.16. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . .28
2.17. Deposit of Moneys.. . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
PUT OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
3.01. Put Option. . . . . . . . . . . . . . . . . . . . . . . . . . .28
3.02. Effect of Put Option Notice.. . . . . . . . . . . . . . . . . .29
3.03. Deposit of Put Option Price.. . . . . . . . . . . . . . . . . .29
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
4.01. Payment of Notes. . . . . . . . . . . . . . . . . . . . . . . .29
4.02. Maintenance of Office or Agency.. . . . . . . . . . . . . . . .29
4.03. Corporate Existence.. . . . . . . . . . . . . . . . . . . . . .30
4.04. Payment of Taxes and Other Claims.. . . . . . . . . . . . . . .30
4.05. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.. . . . . . . . . . . . . . . . . . . . . .31
4.06. Compliance Certificate. . . . . . . . . . . . . . . . . . . . .31
4.07. Limitation on Indebtedness. . . . . . . . . . . . . . . . . . .32
4.08. Limitation on Restricted Payments.. . . . . . . . . . . . . . .33
4.09. Limitation on Issuances and Sale of Preferred Stock by
Restricted Subsidiaries.. . . . . . . . . . . . . . . . . . . .35
4.10. Limitation on Liens.. . . . . . . . . . . . . . . . . . . . . .35
4.11. Change of Control.. . . . . . . . . . . . . . . . . . . . . . .36
4.12. Disposition of Proceeds of Asset Sales. . . . . . . . . . . . .38
4.13. Limitation on Transactions with Interested Persons. . . . . . .40
4.14. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . . . . .41
4.15. Limitations on Sale-Leaseback Transactions. . . . . . . . . . .42
4.16. Limitation on Applicability of Certain Covenants. . . . . . . .42
4.17. Commission Reports. . . . . . . . . . . . . . . . . . . . . . .43
4.18. Rule 144A Information Requirement.. . . . . . . . . . . . . . .43
4.19. Waiver of Stay, Extension or Usury Laws.. . . . . . . . . . . .43
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
SUCCESSOR CORPORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
5.01. When LGII May Merge, Etc. . . . . . . . . . . . . . . . . . . .44
5.02. Successor Substituted.. . . . . . . . . . . . . . . . . . . . .45
ARTICLE SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
6.01. Events of Default.. . . . . . . . . . . . . . . . . . . . . . .45
6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . .47
6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . .48
6.04. Waiver of Past Defaults.. . . . . . . . . . . . . . . . . . . .48
6.05. Control by Majority.. . . . . . . . . . . . . . . . . . . . . .48
6.06. Limitation on Suits.. . . . . . . . . . . . . . . . . . . . . .49
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- ii -
6.07. Right of Holders to Receive Payment.. . . . . . . . . . . . . .49
6.08. Collection Suit by TRUSTEE. . . . . . . . . . . . . . . . . . .49
6.09. Trustee May File Proofs of Claims.. . . . . . . . . . . . . . .50
6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . .50
6.11. Undertaking for Costs.. . . . . . . . . . . . . . . . . . . . .51
6.12. Restoration of Rights and Remedies. . . . . . . . . . . . . . .51
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
7.01. Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
7.02. Rights of Trustee.. . . . . . . . . . . . . . . . . . . . . . .52
7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . .53
7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . .53
7.05. Notice of Default.. . . . . . . . . . . . . . . . . . . . . . .53
7.06. Money Held in Trust.. . . . . . . . . . . . . . . . . . . . . .54
7.07. Reports by Trustee to Holders.. . . . . . . . . . . . . . . . .54
7.08. Compensation and Indemnity. . . . . . . . . . . . . . . . . . .54
7.09. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . .55
7.10. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . .56
7.11. Eligibility; Disqualification.. . . . . . . . . . . . . . . . .56
7.12. Preferential Collection of Claims Against LGII. . . . . . . . .56
ARTICLE EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
SATISFACTION AND DISCHARGE OF INDENTURE. . . . . . . . . . . . . . . . . . . .56
8.01. Termination of the Obligations of LGII and Xxxxxx.. . . . . . .57
8.02. Legal Defeasance and Covenant Defeasance. . . . . . . . . . . .58
8.03. Application of Trust Money. . . . . . . . . . . . . . . . . . .61
8.04. Repayment to LGII or Guarantor. . . . . . . . . . . . . . . . .61
8.05. Reinstatement.. . . . . . . . . . . . . . . . . . . . . . . . .62
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
AMENDMENTS, SUPPLEMENTS AND WAIVERS. . . . . . . . . . . . . . . . . . . . . .63
9.01. Without Consent of Holders. . . . . . . . . . . . . . . . . . .63
9.02. With Consent of Holders.. . . . . . . . . . . . . . . . . . . .63
9.03. Compliance with Trust Indenture Act.. . . . . . . . . . . . . .64
9.04. Revocation and Effect of Consents.. . . . . . . . . . . . . . .65
9.05. Notation on or Exchange of Notes. . . . . . . . . . . . . . . .65
9.06. Trustee May Sign Amendments, etc. . . . . . . . . . . . . . . .65
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- iii -
ARTICLE TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
GUARANTEE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
10.01. Guarantee.. . . . . . . . . . . . . . . . . . . . . . . . . . .66
10.02. Execution and Delivery of Guarantee.. . . . . . . . . . . . . .67
10.03. Interest Act (Canada).. . . . . . . . . . . . . . . . . . . . .68
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
11.01. Trust Indenture Act of 1939.. . . . . . . . . . . . . . . . . .68
11.02. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . .68
11.03. Communication by Holders with Other Holders.. . . . . . . . . .69
11.04. Certificate and Opinion as to Conditions Precedent. . . . . . .69
11.05. Statements Required in Certificate or Opinion.. . . . . . . . .70
11.06. Rules by Trustee, Paying Agent, Registrar.. . . . . . . . . . .70
11.07. Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . .70
11.08. Consent to Service of Process.. . . . . . . . . . . . . . . . .70
11.09. No Interpretation of Other Agreements.. . . . . . . . . . . . .71
11.10. No Recourse Against Others. . . . . . . . . . . . . . . . . . .71
11.11. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . .71
11.12. Duplicate Originals.. . . . . . . . . . . . . . . . . . . . . .71
11.13. Separability. . . . . . . . . . . . . . . . . . . . . . . . . .71
11.14. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . .72
11.15. Benefits of Indenture.. . . . . . . . . . . . . . . . . . . . .72
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- iv -
INDENTURE, dated as of September 30, 1997, between Xxxxxx Group
International, Inc., a Delaware corporation ("LGII"), The Xxxxxx Group Inc.,
a body corporate organized under and governed by the laws of the Province of
British Columbia, Canada ("Xxxxxx") and State Street Bank and Trust Company,
a Massachusetts chartered trust company, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each other
party and, except as otherwise provided herein, for the equal and ratable
benefit of the Holders of Senior Guaranteed Notes due 2009 (the "Notes")
issued by LGII in connection with the offer and sale of 6.70% Pass-Through
Asset Trust Certificates issued by the Xxxxxx Pass-Through Asset Trust 1997-1.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.01. DEFINITIONS.
"Acquired Indebtedness" means Indebtedness of a person (a) assumed
or created in connection with an Asset Acquisition from such person or (b)
existing at the time such person becomes a Restricted Subsidiary of any other
person.
"Affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person.
"Agent Members" shall have the meaning set forth in Section 2.09.
"Asset Acquisition" means (a) an Investment by Xxxxxx or any
Restricted Subsidiary of Xxxxxx (including, without limitation, LGII) in any
other person pursuant to which such person shall become a Restricted
Subsidiary of Xxxxxx, or shall be merged with or into Xxxxxx or any
Restricted Subsidiary of Xxxxxx, (b) the acquisition by Xxxxxx or any
Restricted Subsidiary of Xxxxxx of the assets of any person (other than a
Restricted Subsidiary of Xxxxxx) which constitute all or substantially all of
the assets of such person or (c) the acquisition by Xxxxxx or any Restricted
Subsidiary of Xxxxxx of any division or line of business of any person (other
than a Restricted Subsidiary of Xxxxxx).
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease or other disposition to any person other than
Xxxxxx or a Restricted Subsidiary of Xxxxxx (including, without limitation,
LGII), in one or a series of related transactions, of (a) any Capital Stock
of any Restricted Subsidiary of Xxxxxx (other than in respect of directors'
qualifying shares or investments by foreign nationals mandated by applicable
law) or of First Capital Life Insurance Company of Louisiana, National
Capitol Life Insurance Company, Security Industrial Insurance Company,
Security Industrial Fire Insurance Company or any successors to such
Subsidiaries; (b) all or substantially all of the properties and assets of
any division or line of business of Xxxxxx or any Restricted Subsidiary of
Xxxxxx; or (c) any other properties or assets of Xxxxxx or any Restricted
Subsidiary of Xxxxxx other than properties and assets sold in the
- 1 -
ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include (i) any sale, transfer or other disposition of
equipment, tools or other assets (including Capital Stock of any Restricted
Subsidiary of Xxxxxx) by Xxxxxx or any of its Restricted Subsidiaries in one
or a series of related transactions in respect of which Xxxxxx or such
Restricted Subsidiary receives cash or property with an aggregate Fair Market
Value of $2,000,000 or less; and (ii) any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is governed
by the provisions of Article IV.
"Asset Sale Offer" shall have the meaning set forth in Section 4.12.
"Asset Sale Offer Price" shall have the meaning set forth in
Section 4.12.
"Asset Sale Purchase Date" shall have the meaning set forth in
Section 4.12.
"Attributable Value" means, as to any particular lease under which
any person is at the time liable other than a Capitalized Lease Obligation,
and at any date as of which the amount thereof is to be determined, the total
net amount of rent required to be paid by such person under such lease during
the initial term thereof as determined in accordance with GAAP, discounted
from the last date of such initial term to the date of determination at a
rate per annum equal to the discount rate which would be applicable to a
Capitalized Lease Obligation with a like term in accordance with GAAP. The
net amount of rent required to be paid under any such lease for any such
period shall be the aggregate amount of rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account
of insurance, taxes, assessments, utility, operating and labor costs and
similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount
of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
"Attributable Value" means, as to a Capitalized Lease Obligation under which
any person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount thereof that would appear
on the face of a balance sheet of such person in accordance with GAAP.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar law for the relief of debtors.
"Board of Directors" means the board of directors of LGII or
Xxxxxx, as the case may be, or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of LGII or Xxxxxx, as the case may be, to
have been duly adopted by the Board of Directors of LGII or Xxxxxx, as the
case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New
York, State of New York or the city in which the Corporate Trust Office is
located, are authorized or obligated by law, regulation or executive order to
close.
- 2 -
"Call Option" means the option held by the Callholder pursuant to
which the Callholder has the right to purchase the Notes from the Trust on
the Final Distribution Date at the Call Price.
"Call Price" means 100% of the principal amount of the Notes on the
Final Distribution Date.
"Callholder" means Union Bank of Switzerland, London Branch.
"Canadian Revolver" means the CDN $50,000,000 Operating Credit
Agreement dated August 15, 1994, among The Xxxxxx Group Inc., Xxxxxx Group
International, Inc. and Royal Bank of Canada, as amended and supplemented
from time to time.
"Canadian Term Loan" means the CDN $35,000,000 Credit Agreement
dated as of January 12, 1995 between The Xxxxxx Group Inc. and Xxxxxx Group
International, Inc. and Dresdner Bank Canada, as amended and supplemented
from time to time.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such person's capital stock, and any rights (other than debt
securities convertible into capital stock), warrants or options exchangeable
for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a lease
of (or other agreement conveying the right to use) any property (whether
real, personal or mixed) that is required to be classified and accounted for
as a capital lease obligation under GAAP, and the amount of any such
obligation at any date shall be the capitalized amount thereof at such date,
determined in accordance with GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500,000,000; (iii) certificates
of deposit with a maturity of 180 days or less of any financial institution that
is not organized under the laws of the United States, any state thereof or the
District of Columbia that are rated at least A-1 by S&P or at least P-1 by
Xxxxx'x or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) repurchase agreements and reverse
repurchase agreements relating to marketable direct obligations issued or
unconditionally guaranteed by the government of the United States of America or
issued by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within 180 days from the date of
acquisition; provided that the terms of such agreements comply with the
guidelines set forth in the Federal Financial Agreements of Depository
Institutions With Securities Dealers and Others, as adopted by the Comptroller
of the Currency on October 31, 1985; and (v) notes held by Xxxxxx or any
Restricted Subsidiary (including, without limitation, LGII) which were obtained
by Xxxxxx or
- 3 -
such Restricted Subsidiary in connection with Asset Sales (x) in the ordinary
course of its funeral home, cemetery or cremation businesses or (y) which
were required to be made pursuant to applicable federal or state law.
"Certificate Trustee" means State Street Bank and Trust Company, as
Trustee, under that certain Trust Agreement dated September 25, 1997 between
LGII and State Street Bank and Trust Company.
"Change of Control" means the occurrence on or after the
Measurement Date of any of the following events: (a) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
excluding Permitted Holders, is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall
be deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time, upon the happening of an event or otherwise),
directly or indirectly, of more than 35% of the total Voting Stock of Xxxxxx
or LGII, under circumstances where the Permitted Holders (i) "beneficially
own" (as so defined) a lower percentage of the Voting Stock than such other
"person" or "group" and (ii) do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of Xxxxxx or LGII; (b) Xxxxxx or LGII consolidates
with, or merges with or into, another person or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to another person, or another person consolidates with, or merges with
or into, Xxxxxx or LGII, in any such event pursuant to a transaction in which
the outstanding Voting Stock of Xxxxxx or LGII is converted into or exchanged
for cash, securities or other property, other than any such transaction where
(i) the outstanding Voting Stock of Xxxxxx or LGII is converted into or
exchanged for (1) Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation or (2) cash, securities and other
property in an amount which could then be paid by Xxxxxx or LGII as a
Restricted Payment under the provisions hereof, and (ii) immediately after
such transaction no "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), excluding Permitted Holders, is the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time, upon the
happening of an event or otherwise), directly or indirectly, of more than 50%
of the total Voting Stock of the surviving or transferee corporation; (c) at
any time during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors of Xxxxxx or LGII
(together with any new directors whose election by such Board of Directors
or whose nomination for election by the shareholders or stockholders of
Xxxxxx or LGII was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason (including the failure of such individuals to be elected in a proxy
contest involving a solicitation of proxies) to constitute a majority of the
Board of Directors of Xxxxxx or LGII then in office; or (d) Xxxxxx or LGII is
liquidated or dissolved or adopts a plan of liquidation other than a
liquidation of LGII into Xxxxxx.
"Change of Control Offer" shall have the meaning set forth in
Section 4.11.
- 4 -
"Change of Control Purchase Date" shall have the meaning set forth in
Section 4.11.
"Collateral Trust Agreement" means the Collateral Trust Agreement,
dated as of May 15, 1996, among Bankers Trust Company, as trustee, Xxxxxx, LGII
and various other Subsidiaries.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of the Indenture
such Commission is not existing and performing the applicable duties now
assigned to it, then the body or bodies performing such duties at such time.
"Common Stock" means, with respect to any person, any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or nonvoting) of, such person's common stock, whether
outstanding at the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Consolidated Cash Flow Available for Fixed Charges" means, with
respect to any person for any period, (A) the sum of, without duplication, the
amounts for such period, taken as a single accounting period, of (a)
Consolidated Net Income, (b) depreciation, depletion, amortization and other
non-cash charges for such period, (c) Consolidated Interest Expense and (d)
Consolidated Income Tax Expense LESS (B) any non-cash items increasing
Consolidated Net Income for such period.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
person, the ratio of the aggregate amount of Consolidated Cash Flow Available
for Fixed Charges of such person for the full fiscal quarter immediately
preceding the date of the transaction (the "Transaction Date") giving rise to
the need to calculate the Consolidated Fixed Charge Coverage Ratio (such full
fiscal quarter period being referred to herein as the "Prior Quarter") to the
aggregate amount of Consolidated Fixed Charges of such person for the Prior
Quarter. In addition to and without limitation of the foregoing, for purposes
of this definition, "Consolidated Cash Flow Available for Fixed Charges" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a PRO
FORMA basis for the period of such calculation to, without duplication, (a) the
incurrence of any Indebtedness of such person or any of its Restricted
Subsidiaries (and the application of the net proceeds thereof) during the period
commencing on the first day of the Prior Quarter to and including the
Transaction Date (the "Reference Period"), including, without limitation, the
incurrence of the Indebtedness giving rise to the need to make such calculation
(and the application of the net proceeds thereof), as if such incurrence (and
application) occurred on the first day of the Reference Period, and (b) any
Material Asset Sales or Material Asset Acquisitions (including, without
limitation, any Material Asset Acquisition giving rise to the need to make such
calculation as a result of such person or one of its Restricted Subsidiaries
(including any person who becomes a Restricted Subsidiary as a result of the
Material Asset Acquisition) incurring, assuming or otherwise being liable for
Acquired Indebtedness) occurring during the Reference Period, as if such
Material Asset Sale or Material Asset Acquisition occurred on the first day of
the Reference Period. Furthermore, in calculating "Consolidated Fixed Charges"
for purposes of determining the denominator (but not the numerator) of this
- 5 -
"Consolidated Fixed Charge Coverage Ratio," (i) interest on outstanding
Indebtedness determined on a fluctuating basis as at the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate PER ANNUM equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; and (ii) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date will be deemed to have been in effect during the
Reference Period. If such person or any of its Restricted Subsidiaries directly
or indirectly guarantees Indebtedness of a third person, the above clause shall
give effect to the incurrence of such guaranteed Indebtedness as if such person
or such Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness. For purposes of this calculation, a Material Asset
Acquisition is an Asset Acquisition which is deemed by such person to be
material for such purposes or which has a purchase price of $30,000,000 or more
and a Material Asset Sale is one or more Asset Sales which relate to assets with
an aggregate value of more than $30,000,000.
"Consolidated Fixed Charges" means, with respect to any person for any
period, the sum of, without duplication, the amounts for such period of
(i) Consolidated Interest Expense and (ii) the product of (a) the aggregate
amount of dividends and other distributions paid or accrued during such period
in respect of Preferred Stock and Redeemable Capital Stock of such person and
its Restricted Subsidiaries on a consolidated basis and (b) a multiplier, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such person,
expressed as a decimal; PROVIDED, HOWEVER, that the multiplier in clause (b)
shall be one if such dividend or other distribution is fully tax deductible.
"Consolidated Income Tax Expense" means, with respect to any person
for any period, the provision for federal, state, local and foreign income taxes
of such person and its Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any person for
any period, without duplication, the sum of (i) the interest expense of such
person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation,
(a) any amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations, (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and (e) all
accrued interest and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any person, for any
period, the consolidated net income (or loss) of such person and its Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of
- 6 -
net income (but not losses) of such person and its Restricted Subsidiaries
allocable to minority interests in unconsolidated persons to the extent that
cash dividends or distributions have not actually been received by such person
or one of its Restricted Subsidiaries, (iii) net income (or loss) of any person
combined with such person or one of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(iv) any gain or loss realized upon the termination of any employee pension
benefit plan, on an after-tax basis, (v) gains or losses in respect of any Asset
Sales by such person or one of its Restricted Subsidiaries, and (vi) the net
income of any Restricted Subsidiary of such person to the extent that the
declaration of dividends or similar distributions by that Restricted Subsidiary
of that income is not at the time permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders.
"Consolidated Net Tangible Assets" of Xxxxxx as at any date means the
total amount of assets of Xxxxxx and its Restricted Subsidiaries, less
applicable reserves, on a consolidated basis as of the end of the fiscal quarter
immediately preceding such date, as determined in accordance with GAAP, less:
(i) Intangible Assets and (ii) appropriate adjustments on account of minority
interests of other persons holding equity investments in Restricted
Subsidiaries, in the case of each of clauses (i) and (ii) above as reflected on
the consolidated balance sheet of Xxxxxx and its Restricted Subsidiaries as at
the end of the fiscal quarter immediately preceding such date.
"Consolidated Net Worth" means, with respect to any person at any
date, the consolidated stockholders' equity of such person less the amount of
such stockholders' equity attributable to Redeemable Capital Stock of such
person and its Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidation" means, with respect to any person, the consolidation
of the accounts of such person and each of its Subsidiaries if and to the extent
the accounts of such person and each of its Restricted Subsidiaries would
normally be consolidated with those of such person, all in accordance with GAAP.
The term "consolidated" shall have a meaning correlative to the foregoing.
"Control" means, with respect to any specified person, the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located in Hartford,
Connecticut.
"covenant defeasance" shall have the meaning set forth in Section
8.02.
"Credit Agreements" means the Revolving Credit Facility, the Canadian
Revolver, the MEIP Facility and the Canadian Term Loan; in each case as any such
instrument may be
- 7 -
amended, supplemented or otherwise modified from time to time, and any
successor or replacement facility.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
Xxxxxx or any of its Restricted Subsidiaries against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means The Depositary Trust Company, its nominees and
their respective successors.
"Event of Default" has the meaning set forth under Section 6.01
herein.
"Excess Proceeds" shall have the meaning set forth in Section 4.12.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction; PROVIDED, HOWEVER, that with
respect to any transaction which involves an asset or assets in excess of
$5,000,000, such determination shall be evidenced by a Board Resolution of
Xxxxxx delivered to the Trustee.
"Final Distribution Date" means October 1, 1999.
"GAAP" means accounting principles generally accepted in Canada
consistently applied until such time as Xxxxxx or LGII shall prepare their
respective books of record in accordance with accounting principles generally
accepted in the United States ("U.S. GAAP") at which time and all times
thereafter GAAP shall mean U.S. GAAP consistently applied.
"Global Note" has the meaning set forth in Section 2.01.
"Guarantee" shall mean the guarantee of the Notes (including the Put
Option) by Xxxxxx created pursuant to Article 10.
"Guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any
- 8 -
part of such obligation, including, without limiting the foregoing, the payment
of amounts drawn down by letters of credit.
"Guarantor" shall mean Xxxxxx, and shall include any successor
replacing Xxxxxx pursuant to the provisions hereof, and thereafter means such
successor.
"Holder" or "Noteholder" means the person in whose name a Note is
registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without duplication,
(a) all liabilities of such person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business and
which are not overdue by more than 90 days, but excluding, without limitation,
all obligations, contingent or otherwise, of such person in connection with any
undrawn letters of credit, banker's acceptance or other similar credit
transaction, (b) all obligations of such person evidenced by bonds, notes,
debentures or other similar instruments, (c) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all Capitalized Lease
Obligations of such person, (e) all Indebtedness referred to in the preceding
clauses of other persons and all dividends of other persons, the payment of
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all guarantees of Indebtedness referred to in this
definition by such person, (g) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all obligations under or in respect of
Currency Agreements and Interest Rate Protection Obligations of such person,
(i) any Preferred Stock of any Restricted Subsidiary of such person valued at
the sum of (without duplication) (A) the liquidation preference thereof, (B) any
mandatory redemption payment obligations in respect thereof and (C) accrued
dividends thereon, and (j) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a) through (i) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
the provisions hereof, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock. For purposes of this definition, the term
"Indebtedness" shall not include (i) Indebtedness of a Wholly-Owned Subsidiary
owed to and held by Xxxxxx, LGII or another Wholly-Owned Subsidiary, in each
case which is not subordinate in right of payment to any Indebtedness of such
Subsidiary, except that (a) any transfer of such Indebtedness by Xxxxxx, LGII or
a Wholly-Owned Subsidiary (other
- 9 -
than to Xxxxxx, LGII or to a Wholly-Owned Subsidiary) and (b) the sale,
transfer or other disposition by Xxxxxx, LGII or any Restricted Subsidiary of
Xxxxxx or LGII of Capital Stock of a Wholly-Owned Subsidiary which is owed
Indebtedness of another Wholly-Owned Subsidiary such that it ceases to be a
Wholly-Owned Subsidiary of Xxxxxx or LGII shall, in each case, be an
incurrence of Indebtedness by such Restricted Subsidiary subject to the other
provisions hereof; and (ii) Indebtedness of Xxxxxx or LGII owed to and held
by a Wholly-Owned Subsidiary of Xxxxxx or LGII which is unsecured and
subordinate in right of payment to the payment and performance of Xxxxxx'x or
LGII's obligations under the provisions hereof and the Notes except that (a) any
transfer of such Indebtedness by a Wholly-Owned Subsidiary of Xxxxxx or LGII
(other than to another Wholly-Owned Subsidiary of Xxxxxx or LGII) and (b) the
sale, transfer or other disposition by Xxxxxx or LGII or any Restricted
Subsidiary of Xxxxxx or LGII of Capital Stock of a Wholly-Owned Subsidiary which
holds Indebtedness of Xxxxxx or LGII such that it ceases to be a Wholly-Owned
Subsidiary shall, in each case, be an incurrence of Indebtedness by Xxxxxx or
LGII, as the case may be, subject to the other provisions hereof.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time, and shall include the form and terms of the Notes established
hereby.
"Independent Financial Advisor" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in Xxxxxx or LGII and (ii) which, in the judgment of
the Board of Directors of Xxxxxx, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Notes" means the Notes initially issued under this Indenture
to the Certificate Trustee.
"interest" means, with respect to any Note, the amount of all interest
accruing on such Note, including all interest accruing subsequent to the
occurrence of any events specified in Sections 6.01(f) and (g) or which would
have accrued but for any such event, whether or not such claims are allowable
under applicable law.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes, as set forth therein.
"Interest Rate Protection Agreement" means any arrangement with any
other person whereby, directly or indirectly, such person is entitled to receive
from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic
payments made by such person calculated by applying a fixed or a floating rate
of interest on the same notional amount and shall include, without limitation,
interest rate swaps, caps, floors, collars and similar agreements.
"Interest Rate Protection Obligations" means the obligations of any
person under any Interest Rate Protection Agreement.
"Investment" means, with respect to any person, any direct or indirect
loan or other extension of credit or capital contribution to (by means of any
transfer of cash or other
- 10 -
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other person. "Investments" shall exclude
extensions of trade credit by Xxxxxx and its Restricted Subsidiaries
(including, without limitation, LGII) in the ordinary course of business in
accordance with normal trade practices of Xxxxxx or such Restricted Subsidiary,
as the case may be.
"Issue Date" means October 1, 1997.
"legal defeasance" shall have the meaning set forth in Section 8.02.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A person shall be deemed to own subject to a Lien any property which such
person has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement.
"Maturity Date" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, exercise of the Put Option or otherwise.
"Measurement Date" means March 20, 1996.
"MEIP Facility" means the 1994 Management Equity Investment Plan
("MEIP") Credit Agreement, dated as of June 14, 1994, by and between Xxxxxx
Management Investment Corporation, in its capacity as agent for LGII Xxxxxx, the
banks listed therein and Wachovia Bank of Georgia, N.A., as agent, as amended
and supplemented from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to Xxxxxx or any Restricted Subsidiary of Xxxxxx (including,
without limitation, LGII) net of (i) brokerage commissions and other fees and
expenses (including, without limitation, fees and expenses of legal counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) amounts required to be paid to any
person (other than Xxxxxx or any Restricted Subsidiary of Xxxxxx) owning a
beneficial interest in the assets subject to the Asset Sale and (iv) appropriate
amounts to be provided by Xxxxxx or any Restricted Subsidiary of Xxxxxx, as the
case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by Xxxxxx or any
Restricted Subsidiary of Xxxxxx, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under any
- 11 -
indemnification obligations associated with such Asset Sale, all as
reflected in an officers' certificate delivered to the Trustee.
"Note" shall have the meaning set forth in the second paragraph of
this Indenture and, unless the context otherwise requires, shall refer to a
Global Note, an Initial Note or a Physical Note issued hereunder.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the Chief Financial
Officer, the Treasurer, the Secretary or the Controller of LGII or Xxxxxx, as
the case may be.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of LGII or
Xxxxxx, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to LGII.
"Pari Passu Indebtedness" means Indebtedness of LGII or Xxxxxx which
ranks PARI PASSU in right of payment with the Notes or the Guarantee, as the
case may be.
"Paying Agent" has the meaning set forth in Section 2.04, except that,
for the purposes of Section 4.11 and Section 4.12 and Articles Three and Eight,
the Paying Agent shall not be LGII or a Subsidiary of LGII or any of their
respective Affiliates.
"Permitted Holders" mean (i) Xxxxxxx Xxxxxx and Xxxx Xxxxxx, taken
together, and (ii) in the case of LGII, Xxxxxx.
"Permitted Indebtedness" means, without duplication, each of the
following:
(a) the Notes and Indebtedness of Xxxxxx evidenced by its
Guarantee with respect to the Notes;
(b) Indebtedness of Xxxxxx and its Restricted Subsidiaries
(including, without limitation, LGII) outstanding on the Issue Date (other
than Indebtedness under the Credit Agreements);
(c) Indebtedness of Xxxxxx or LGII, as the case may be, under
the Credit Agreements in an aggregate principal amount at any one time
outstanding not to exceed $750,000,000 less the Net Proceeds of any Asset
Sale that are applied to repay, and permanently reduce the commitments
under, the Credit Agreements (as required by the terms thereof);
(d) (i) Interest Rate Protection Obligations of Xxxxxx covering
Indebtedness of Xxxxxx and its Restricted Subsidiaries (including, without
limitation, LGII); (ii) Interest Rate Protection Obligations of any
Restricted Subsidiary of Xxxxxx
- 12 -
covering Indebtedness of such Restricted Subsidiary; provided, however,
that, in the case of either clause (i) or (ii), (x) any Indebtedness to
which any such Interest Rate Protection Obligations relate bears interest
at fluctuating interest rates and is otherwise permitted to be incurred
under this covenant and (y) the notional principal amount of any such
Interest Rate Protection Obligations does not exceed the principal amount
of the Indebtedness to which such Interest Rate Protection Obligations
relate;
(e) Indebtedness under Currency Agreements; provided, however,
that in the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of Xxxxxx and its
Restricted Subsidiaries (including, without limitation, LGII) outstanding
other than as a result of fluctuations in foreign currency exchange rates
or by reason of fees, indemnities and compensation payable thereunder;
(f) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within two business days of incurrence;
(g) Indebtedness incurred in respect of performance bonds or
letters of credit in lieu thereof provided in the ordinary course of
business;
(h) Indebtedness of Xxxxxx and its Restricted Subsidiaries
(including, without limitation, LGII) represented by letters of credit for
the account of Xxxxxx and its Restricted Subsidiaries in order to provide
security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business;
(i) Indebtedness of Xxxxxx and its Restricted Subsidiaries
(including, without limitation, LGII) in addition to that described in
clauses (a) through (h) above, in an aggregate principal amount outstanding
at any time not exceeding $5,000,000; and
(j) (i) Indebtedness of Xxxxxx the proceeds of which are used
solely to refinance (whether by amendment, renewal, extension or refunding)
Indebtedness of Xxxxxx and its Restricted Subsidiaries (including, without
limitation, LGII) and (ii) Indebtedness of any Restricted Subsidiary of
Xxxxxx the proceeds of which are used solely to refinance (whether by
amendment, renewal, extension or refunding) Indebtedness of such Restricted
Subsidiary, in each case other than the Indebtedness refinanced, redeemed
or retired on the Issue Date or Indebtedness incurred under clause (c),
(d), (e), (f), (g), (h), or (i) of this covenant; PROVIDED, HOWEVER, that
(x) the principal amount of Indebtedness incurred pursuant to this clause
(j) (or, if such Indebtedness provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the original issue price of such
Indebtedness) shall not exceed the sum of the principal amount of
Indebtedness so refinanced, plus the amount of any premium required to be
paid in connection with such
- 13 -
refinancing pursuant to the terms of such Indebtedness or the amount of
any premium reasonably determined by the Board of Directors of Xxxxxx as
necessary to accomplish such refinancing by means of a tender offer or
privately negotiated purchase, plus the amount of expenses in connection
therewith, (y) in the case of Indebtedness incurred by Xxxxxx pursuant to
this clause (j) to refinance Pari Passu Indebtedness, such Indebtedness
constitutes Pari Passu Indebtedness.
"Permitted Investments" means any of the following: (i) Investments
in any Wholly-Owned Subsidiary of Xxxxxx (including (a) LGII and (b) any person
that pursuant to such Investment becomes a Wholly-Owned Subsidiary of Xxxxxx)
and any person that is merged or consolidated with or into, or transfers or
conveys all or substantially all of its assets to, Xxxxxx or any Wholly-Owned
Subsidiary of Xxxxxx at the time such Investment is made; (ii) Investments in
Cash Equivalents; (iii) Investments in Currency Agreements on commercially
reasonable terms entered into by Xxxxxx or any of its Restricted Subsidiaries in
the ordinary course of business in connection with the operations of the
business of Xxxxxx or its Restricted Subsidiaries to hedge against fluctuations
in foreign exchange rates; (iv) loans or advances to officers, employees or
consultants of Xxxxxx and its Restricted Subsidiaries for travel and moving
expenses in the ordinary course of business for bona fide business purposes of
Xxxxxx and its Restricted Subsidiaries; (v) other loans or advances to officers,
employees or consultants of Xxxxxx and its Restricted Subsidiaries in the
ordinary course of business for bona fide business purposes of Xxxxxx and its
Restricted Subsidiaries not in excess of $10,000,000 in the aggregate at any one
time outstanding; (vi) Investments in evidences of Indebtedness, securities or
other property received from another person by Xxxxxx or any of its Restricted
Subsidiaries in connection with any bankruptcy proceeding or by reason of a
composition or readjustment of debt or a reorganization of such person or as a
result of foreclosure, perfection or enforcement of any Lien in exchange for
evidences of Indebtedness, securities or other property of such person held by
Xxxxxx or any of its Restricted Subsidiaries, or for other liabilities or
obligations of such other person to Xxxxxx or any of its Restricted Subsidiaries
that were created, in accordance with the terms of this Indenture;
(vii) Investments in Interest Rate Protection Agreements on commercially
reasonable terms entered into by Xxxxxx or any of its Restricted Subsidiaries in
the ordinary course of business in connection with the operations of Xxxxxx and
its Restricted Subsidiaries to hedge against fluctuations in interest rates; and
(viii) Investments of funds received by Xxxxxx or its Restricted Subsidiaries
(including, without limitation, LGII) in the ordinary course of business, which
funds are required to be held in trust for the benefit of others by Xxxxxx or
such Restricted Subsidiary, as the case may be, and which funds do not
constitute assets or liabilities of Xxxxxx or such Restricted Subsidiary; (ix)
Investments not in excess of $50,000,000 in the aggregate in other Unrestricted
Subsidiaries which are engaged in the insurance business; and (x) Investments
not in excess of $50,000,000 in persons (other than Wholly-Owned Subsidiaries)
engaged in businesses incidental to the funeral home, cemetery and cremation
businesses of Xxxxxx and its Restricted Subsidiaries.
"Permitted Liens" means the following types of Liens:
(a) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which Xxxxxx or any of its Restricted
Subsidiaries (including, without limitation,
- 14 -
LGII) shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
governmental contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(d) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired;
(e) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering
in any material respect with the ordinary conduct of the business of Xxxxxx
or any of its Restricted Subsidiaries (including, without limitation,
LGII);
(f) any interest or title of a lessor under any Capitalized
Lease Obligation or operating lease;
(g) any Lien existing on any asset of any corporation at the
time such corporation becomes a Restricted Subsidiary and not created in
contemplation of such event;
(h) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset; provided, that such Lien attaches to
such asset concurrently with or within 18 months after the acquisition or
completion thereof;
(i) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into Xxxxxx or a
Restricted Subsidiary and not created in contemplation of such event;
(j) any Lien existing on any asset prior to the acquisition
thereof by Xxxxxx or a Restricted Subsidiary and not created in
contemplation of such acquisition;
- 15 -
(k) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods; and
(l) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (g), (h), (i) or (j) hereof in
respect of the same property or assets theretofore subject to such Lien
in connection with the extension, renewal or refunding of the
Indebtedness secured thereby; provided that (1) such Lien shall attach
solely to the same property or assets and (2) such extension, renewal or
refunding of such Indebtedness shall be without increase in the
principal remaining unpaid as at the date of such extension, renewal or
refunding.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
charitable foundation, unincorporated organization, government or any agency
or political subdivision thereof.
"Physical Note" shall have the meaning set forth in Section 2.01.
"Predecessor Notes" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition,
any Notes authenticated and delivered under Section 2.08 hereof in exchange
for mutilated Notes or in lieu of lost, destroyed or stolen Notes, shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Notes.
"Preferred Securities" means, with respect to a Special Finance
Subsidiary, any securities of such Subsidiary treated for accounting purposes
as an equity security that has preferential rights to any other security of
such person with respect to dividends or redemptions or upon liquidation.
"Preferred Stock" means, with respect to any person, any Capital
Stock of such person that has preferential rights to any other Capital Stock
of such person with respect to dividends or redemptions or upon liquidation
and any Preferred Securities.
"principal" means, with respect to any debt security, the principal
of the security plus, when appropriate, the premium, if any, on the security
and any interest on overdue principal.
"Private Placement Legend" shall have the meaning set forth in
Section 2.02.
"Put Option" means the Certificate Trustee's right to require LGII
to repurchase all but not less than all of the Notes at the Put Option Price.
"Put Option Notice" means the notice, delivered by the Certificate
Trustee to LGII not less than one day nor more than 15 days' prior to the
Final Settlement Date, to the effect that the Certificate Trustee shall
exercise the Put Option.
- 16 -
"Put Option Price" means 100% of the principal amount of the Notes
on the Final Distribution Date.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Redeemable Capital Stock" means any shares of any class or series
of Capital Stock that, either by the terms thereof, by the terms of any
security into which it is convertible or exchangeable or by contract or
otherwise, is or upon the happening of an event or passage of time would be,
required to be redeemed prior to the Stated Maturity with respect to the
principal of any Note or is redeemable at the option of the holder thereof at
any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated
Maturity.
"Registrar" has the meaning set forth in Section 2.04.
"Related Obligor" has the meaning set forth in Section 4.08.
"Restricted Payments" has the meaning set forth in Section 4.08.
"Restricted Subsidiary" means any Subsidiary of Xxxxxx other than
an Unrestricted Subsidiary.
"Revolving Credit Facility" means the $750,000,000 Credit
Agreement, dated as of May 15, 1996, among LGII, as borrower, TLGI, as
guarantor, the lenders named therein, as the lenders, Xxxxxxx, Sachs & Co.,
as the documentation agent and Bank of Montreal, as issuer, swingline lender
and agent, as amended and supplemented from time to time.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale-Leaseback Transaction" of any person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such person of any property or asset of such
person which has been or is being sold or transferred by such person after
the acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such
arrangement prior to the first date on which such arrangement may be
terminated by the lessee without payment of a penalty.
"S&P" means Standard & Poor's Rating Services, a Division of the
XxXxxx-Xxxx Companies, and its successors.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Seller Financing Indebtedness" means a purchase money Indebtedness
issued to the seller of a business or other assets for, and not in excess of,
the purchase price thereof.
- 17 -
"Notes" means the securities that are issued under this Indenture,
as amended or supplemented from time to time pursuant to this Indenture.
"Significant Subsidiary" shall mean a Restricted Subsidiary which
is a "Significant Subsidiary" as defined in Rule 1.02(v) of Regulation S-X
under the Securities Act.
"Special Finance Subsidiary" means a Restricted Subsidiary whose
sole assets are debt obligations of LGII or Xxxxxx and whose sole liabilities
are Preferred Securities the proceeds from the sale of which are or have been
advanced to LGII or Xxxxxx.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is
due and payable, and when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
"Subsidiary" means, with respect to any person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned
by such person, by one or more Subsidiaries of such person or by such person
and one or more Subsidiaries thereof and (ii) any other person (other than a
corporation), including, without limitation, a joint venture, in which such
person, one or more Subsidiaries thereof or such person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other person
performing similar functions). For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
"Surviving Entity" shall have the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the Issue Date.
"Trust Officer" means any officer in the Corporate Trust
Administration of the Trustee or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above-designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces such party (or any previous successor) in accordance with
the provisions of this Indenture, and thereafter means such successor.
"U.S. Government Obligations" shall have the meaning set forth in
Section 8.02.
"Unrestricted Subsidiary" means (i) First Capital Life Insurance
Company of Louisiana, National Capital Life Insurance Company, Security
Industrial Insurance Company,
- 18 -
Security Industrial Fire Insurance Company or any successors to such
Subsidiaries or (ii) a Subsidiary of Xxxxxx declared by the Board of
Directors of Xxxxxx to be an Unrestricted Subsidiary; PROVIDED, that no such
Subsidiary shall be declared to be an Unrestricted Subsidiary unless (x) none
of its properties or assets were owned by Xxxxxx or any of its Subsidiaries
prior to the Issue Date, other than any such assets as are transferred to
such Unrestricted Subsidiary in accordance with the covenant contained in
Section 4.08, (y) its properties and assets, to the extent that they secure
Indebtedness, secure only Non-Recourse Indebtedness and (z) it has no
Indebtedness other than Non-Recourse Indebtedness. As used above,
"Non-Recourse Indebtedness" means Indebtedness as to which (i) neither Xxxxxx
nor any of its Subsidiaries (other than the relevant Unrestricted Subsidiary
or another Unrestricted Subsidiary) (1) provides credit support (including
any undertaking, agreement or instrument which would constitute
Indebtedness), (2) guarantees or is otherwise directly or indirectly liable
or (3) constitutes the lender (in each case, other than pursuant to and in
compliance with the covenant contained in Section 4.08 and (ii) no default
with respect to such Indebtedness (including any rights which the holders
thereof may have to take enforcement action against the relevant Unrestricted
Subsidiary or its assets) would permit (upon notice, lapse of time or both)
any holder of any other Indebtedness of Xxxxxx or its Subsidiaries (other
than Unrestricted Subsidiaries) to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior
to its stated maturity.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of any person (irrespective of whether or not, at the
time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency).
"Wholly-Owned Subsidiary" means (i) any Restricted Subsidiary of
Xxxxxx of which 100% of the outstanding Capital Stock is owned by Xxxxxx or
one or more Wholly-Owned Subsidiaries of Xxxxxx or by Xxxxxx and one or more
Wholly-Owned Subsidiaries of Xxxxxx, including LGII, or (ii) any Subsidiary,
at least 66 2/3% of the outstanding voting securities of which, and all of
the outstanding shares entitled to receive dividends or other distributions
of which, shall at the time be owned or controlled, directly or indirectly,
by Xxxxxx or one or more Wholly-Owned Subsidiaries of Xxxxxx or by Xxxxxx and
one or more Wholly-Owned Subsidiaries of Xxxxxx, including LGII. For
purposes of this definition, any directors' qualifying shares or investments
by foreign nationals mandated by applicable law shall be disregarded in
determining the ownership of a Subsidiary.
1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes and the Guarantee;
"INDENTURE SECURITY HOLDER" means a Noteholder or Holder;
- 19 -
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
and
"OBLIGOR" on the indenture securities means LGII, Xxxxxx or any
other obligor on the Notes or the Guarantee.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
1.03. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) words in the singular include the plural, and words in
the plural include the singular.
(b) "or" is not exclusive;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(e) all references to "$" or "dollars" shall refer to the
lawful currency of the United States of America, and all references
to "CDN $" shall refer to the lawful currency of Canada.
ARTICLE TWO
THE NOTES
2.01. ISSUANCE OF NOTES.
The aggregate principal amount of Notes which may be outstanding at
any time under this Indenture may not exceed $300,000,000 at any time, except
to the extent permitted by Section 2.08. Upon the execution and delivery of
this Indenture and the Guarantee, Notes in an aggregate principal amount of
$300,000,000 may be executed by LGII and delivered to the Trustee for
authentication.
The Notes and the Trustee's certificate of authentication thereon
shall be in substantially the form of Exhibits A and B hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have
- 20 -
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable
law or with the rules of any securities exchange or as may, consistently
herewith, be determined by the Officers executing such Notes, as evidenced by
their execution thereof. The Notes shall be issuable only in registered form
without coupons and only in denominations of $1,000 and integral multiples
thereof.
The definitive Notes and the Guarantee shall be printed,
typewritten, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes. Each Note shall be dated the date of its authentication.
The Initial Notes shall be issued in the form of permanent
certificated Notes in registered form in substantially the form set forth in
Exhibit A hereto (the "Physical Notes"). The Initial Notes may be exchanged
for (i) Physical Notes or (ii) Notes in the form of one or more permanent
global Notes substantially in the form set forth in Exhibit B hereto (the
"Global Note") deposited with, or on behalf of, the Depositary or with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Note may from time to time be increased or
decreased by adjustments made on the records of the Depositary or its
nominee, or of the trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.
Notes issued pursuant to Section 2.09 in exchange for interests in
the Global Note shall be in the form of Physical Notes.
The terms and provisions contained in the form of the Notes,
annexed hereto as Exhibits A and B, shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent applicable, LGII,
Xxxxxx and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
2.02. RESTRICTIVE LEGENDS. Until October 1, 1999, each Note shall
bear the legend set forth below (the "Private Placement Legend") on the face
thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND
- 21 -
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF 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 DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 2.09 AND 2.10 OF THE INDENTURE.
2.03. EXECUTION AND AUTHENTICATION.
Two Officers shall execute the Notes on behalf of LGII by either
manual or facsimile signature. LGII's seal shall be impressed, affixed,
imprinted or reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note or at any time
thereafter, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate Notes for original issue upon
receipt of an Officers' Certificate signed by two Officers of LGII directing
the Trustee to authenticate the Notes and certifying that all conditions
precedent to the issuance of the Notes contained herein have been complied
with.
With the prior written approval of LGII, the Trustee may appoint an
authenticating agent acceptable to LGII to authenticate Notes. Unless
limited by the terms of such appointment,
- 22 -
an authenticating agent may authenticate Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall have
the same rights as the Trustee in any dealings hereunder with LGII or with
any of LGII's Affiliates.
2.04. REGISTRAR AND PAYING AGENT.
LGII shall maintain an office or agency (which shall be located in
the Borough of Manhattan, The City of New York, State of New York) where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan, The City of New York, State of New York) where Notes may be
presented for payment of principal, premium, if any, and interest (the
"Paying Agent") and an office or agency where notices and demands to or upon
LGII in respect of the Notes and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. LGII
may have one or more co-Registrars and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent. Except as
otherwise expressly provided in this Indenture, LGII or any Affiliate thereof
may act as Paying Agent.
LGII shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Registrar or Paying Agent.
LGII shall notify the Trustee of the name and address of any such Registrar
or Paying Agent. If LGII fails to maintain a Registrar, Paying Agent or
agent for service of notices and demands, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation in accordance with Section 7.08.
LGII initially appoints the Trustee as Registrar, Paying Agent and
agent for service of notices and demands in connection with the Notes.
2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal
of, or interest on, the Notes (whether such money has been distributed to it
by LGII or any other obligor on the Notes), and LGII (or any other obligor on
the Notes) and the Paying Agent shall notify the Trustee of any default by
LGII (or any other obligor on the Notes) in making any such payment. If LGII
or an Affiliate of LGII acts as Paying Agent, it shall segregate the money
and hold it as a separate trust fund. LGII at any time may require a Paying
Agent to distribute all money held by it to the Trustee and account for any
funds disbursed and the Trustee may at any time during the continuance of any
Payment Default with respect to the Notes, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee
and to account for any funds distributed. Upon doing so, the Paying Agent
(other than an obligor on the Notes or the Guarantee) shall have no further
liability for the money so paid over to the Trustee.
- 23 -
2.06. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, LGII shall furnish to the Trustee at least ten
Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders,
which list may be conclusively relied upon by the Trustee.
2.07. TRANSFER AND EXCHANGE.
When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such Notes for
an equal principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; PROVIDED,
HOWEVER, that the Notes surrendered for transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to LGII and the Registrar or co-Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing. To permit
registrations of transfers and exchanges, LGII shall execute and the Trustee
shall authenticate Notes at the Registrar's or co-Registrar's request. No
service charge shall be made for any transfer, exchange or redemption, but
LGII may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.02, 2.07, 2.10, 4.11 or 4.12).
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book-entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.
2.08. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken,
LGII shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are satisfied. If required by the Trustee or LGII,
such Holder must provide an indemnity bond or other indemnity, sufficient in
the judgment of both LGII and the Trustee, to protect LGII, the Trustee or
any Paying Agent or Registrar from any loss which any of them may suffer if a
Note is replaced. LGII may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel. Every replacement Note is an additional obligation of
LGII and Xxxxxx.
2.09. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE.
(a) If a Global Note is issued pursuant to Section 2.01, such
Global Note initially shall (i) be registered in the name of the Depositary
for such Global Note or the nominee
- 24 -
of such Depositary, (ii) be deposited with, or on behalf of, the Depositary or
with the Trustee, as custodian for such Depositary, and (iii) bear legends as
set forth in Section 2.02. Members of, or participants in, the Depositary
("Agent Members") shall have no rights under this Indenture with respect to
any Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Note, and the Depositary may be treated by
LGII, the Trustee and any agent of LGII or the Trustee as the absolute owner
of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent LGII, the Trustee or any agent of LGII
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors
or their respective nominees. Interests of beneficial owners in the Global
Note may be transferred in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.10. In addition, Physical Notes
shall be issued to all beneficial owners in exchange for their beneficial
interests in the Global Note if (i) the Depositary notifies LGII that it is
unwilling or unable to continue as Depositary for the Global Note and a
successor depositary is not appointed by LGII within 90 days of such notice or
(ii) an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depositary.
(c) In connection with any transfer of a portion of the
beneficial interest in the Global Note pursuant to Section 2.09(b) to
beneficial owners who are required to hold Physical Notes, the Registrar shall
reflect on its books and records the date and a decrease in the principal
amount of the Global Note in an amount equal to the principal amount of the
beneficial interest in the Global Note to be transferred, and LGII shall
execute, and the Trustee shall authenticate and deliver, one or more Physical
Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to Section 2.09(b), the Global Note shall be deemed
to be surrendered to the Trustee for cancellation, and LGII shall execute, and
the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Note an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in
the Global Note pursuant to subsection (c) or subsection (d) of this Section
shall, except as otherwise provided by paragraph (d) of Section 2.10, bear
the applicable legend regarding transfer restrictions applicable to the
Physical Notes set forth in Section 2.02.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
(g) QIBs that are beneficial owners of interests in a Global Note
may receive Physical Notes (which shall bear the Private Placement Legend if
required by Section 2.02) in accordance with the procedures of the Depositary.
In connection with the execution,
- 25 -
authentication and delivery of such Physical Notes, the Registrar shall
reflect on its books and records a decrease in the principal amount of the
relevant Global Note equal to the principal amount of such Physical Notes and
LGII shall execute and the Trustee shall authenticate and deliver one or more
Physical Notes having an equal aggregate principal amount.
2.10. SPECIAL TRANSFER PROVISIONS.
(a) Prior to October 1, 1999, the Registrar shall register the
transfer if such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Note stating, or has otherwise
advised LGII and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise
advised LGII and the Registrar in writing, that it is a QIB, that it is
purchasing the Note for its own account or an account with respect to which it
exercises sole investment discretion (the beneficial owner of which is a QIB)
and that it and any such sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding LGII as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
(b) On and after October 1, 1999, the following provisions shall
apply with respect to the registration of any proposed transfer of a Note. If
the Note to be transferred consists of a Physical Note, the Registrar shall
register the transfer and if the Note to be transferred consists of an
interest in the Global Note, the transfer may be affected only through the
book entry system maintained by the Depositary.
(c) Upon the registration of transfer, exchange or replacement of
Notes not bearing the Private Placement Legend, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes bearing the Private Placement
Legend, the Registrar shall deliver only Notes that bear the Private Placement
Legend there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to LGII and the Trustee to the effect that neither such legend
nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(d) By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such a Note acknowledges the restrictions on transfer
of such Note set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Note only as provided in this Indenture.
(e) The Registrar shall retain until such time as no Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to this Section 2.10. LGII shall have the right to inspect
and make copies of all such letters, notices or other written communications
at any reasonable time upon the giving of reasonable written notice to the
Registrar.
- 26 -
2.11. OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Note does not cease to be outstanding because LGII or any of its Affiliates
holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note is
held by a BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.07.
If on a Maturity Date the Paying Agent (other than LGII or an
Affiliate of LGII) holds cash or U.S. Government Obligations sufficient to pay
all of the principal and interest due on the Notes payable on that date, and
is not prohibited from paying such cash or U.S. Government Obligations to the
Holders of such Notes pursuant to the terms of this Indenture, then on and
after that date such Notes cease to be outstanding and interest on them shall
cease to accrue.
2.12. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by
LGII or any of its Affiliates shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that the Trustee knows or
has reason to know are so owned shall be disregarded.
2.13. TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery, LGII may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that LGII considers appropriate for temporary Notes. Without unreasonable
delay, LGII shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes. Until such exchange, temporary Notes shall
be entitled to the same rights, benefits and privileges as definitive Notes.
2.14. CANCELLATION.
LGII at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent (other than LGII or
an Affiliate of LGII), and no one else, shall promptly cancel and, at the
written direction of LGII, shall dispose of all Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.08, LGII may not issue
new Notes to replace Notes that it has paid or delivered to the Trustee for
cancellation. If LGII shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by
- 27 -
such Notes unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.15.
2.15. DEFAULTED INTEREST.
If LGII defaults on a payment of interest on the Notes, it shall pay
the defaulted interest, plus (to the extent permitted by law) any interest
payable on the defaulted interest, in accordance with the terms hereof, to the
persons who are Holders on a subsequent special record date, which date shall
be at least five Business Days prior to the payment date. LGII shall fix such
special record date and payment date in a manner satisfactory to the Trustee.
At least 15 days before such special record date, LGII shall mail to each
Holder a notice that states the special record date, the payment date and the
amount of defaulted interest, and interest payable on such defaulted interest,
if any, to be paid.
2.16. CUSIP NUMBER.
LGII in issuing the Notes may use a "CUSIP" number, and if so, the
Trustee may use the CUSIP numbers in notices of exchange as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. LGII will promptly
notify the Trustee of any change in the CUSIP number.
2.17. DEPOSIT OF MONEYS.
On or before each Interest Payment Date and Maturity Date, LGII shall
deposit with the Trustee or Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date or Maturity
Date, as the case may be.
ARTICLE THREE
PUT OPTION
3.01. PUT OPTION.
In the event that the Callholder has not given the Certificate
Trustee notice on or before September 15, 1999 that it intends to exercise the
Call Option, or if the Callholder fails to make payment of the Call Price on
the date required under the Call Option, then the Certificate Trustee shall
deliver the Put Option Notice, wherein the Certificate Trustee shall have
exercised the Put Option.
- 28 -
3.02. EFFECT OF PUT OPTION NOTICE.
Once the Put Option Notice is mailed, all of the Notes become due
and payable on the Final Distribution Date and at the Put Option Price.
3.03. DEPOSIT OF PUT OPTION PRICE.
On or prior to the Final Distribution Date, LGII shall deposit with
the Paying Agent an amount of money in same day funds sufficient to pay the
Put Option Price.
ARTICLE FOUR
COVENANTS
Each of LGII and Xxxxxx hereby jointly and severally covenant as
follows, from and after the Closing Date and continuing so long as any amount
remains unpaid on any Note:
4.01. PAYMENT OF NOTES.
Each of LGII and Xxxxxx will pay, or cause to be paid, the principal
of and interest on the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of principal or interest shall be
considered paid on the date due if the Trustee or Paying Agent (other than
LGII, Xxxxxx, a Subsidiary of LGII, Xxxxxx or any Affiliate thereof) holds on
that date money designated and set aside for and sufficient to pay the
installment in a timely manner and is not prohibited from paying such money to
the Holders of the Notes pursuant to the terms of this Indenture.
LGII or Xxxxxx, as the case may be, will pay interest on overdue
principal at the rate and in the manner provided in the Notes; it shall pay
interest on overdue installments of interest at the same rate and in the same
manner, to the extent lawful.
4.02. MAINTENANCE OF OFFICE OR AGENCY.
LGII will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon LGII in respect of the Notes and this Indenture may be
served. LGII will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time LGII
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee as set
forth in Section 11.02.
LGII may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED, HOWEVER,
that no such designation or rescission shall in any manner relieve LGII of its
obligation to maintain an office or agency in the Borough of
- 29 -
Manhattan, The City of New York, for such purposes. LGII will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
LGII hereby initially designates the office of the Trustee located
at Shawmut Trust Company of New York, c/o First Chicago Trust Co. of New York,
00 Xxxx Xxxxxx, 0xx Xxxxx, Window No. 2, in the Borough of Xxxxxxxxx, Xxxx xx
Xxx Xxxx 00000, as such office of LGII in accordance with this Section 4.02.
4.03. CORPORATE EXISTENCE.
Subject to Article Five, each of LGII and Xxxxxx shall do or cause
to be done all things necessary to and will cause each Restricted Subsidiary
to, preserve and keep in full force and effect the corporate or partnership
existence and rights (charter and statutory), licenses and/or franchises of
Xxxxxx and the Restricted Subsidiaries (including, without limitation, LGII);
PROVIDED, HOWEVER, that Xxxxxx and the Restricted Subsidiaries shall not be
required to preserve any such rights, licenses or franchises if the Board of
Directors of Xxxxxx shall reasonably determine that (x) the preservation
thereof is no longer desirable in the conduct of the business of Xxxxxx and
its Subsidiaries taken as a whole and (y) the loss thereof is not materially
adverse to either Xxxxxx and its Subsidiaries taken as a whole or to the
ability of LGII or Xxxxxx to otherwise satisfy its obligations hereunder.
4.04. PAYMENT OF TAXES AND OTHER CLAIMS.
Each of LGII and Xxxxxx will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon Xxxxxx or any of
its Restricted Subsidiaries (including, without limitation, LGII) or upon the
income, profits or property of Xxxxxx or any of its Restricted Subsidiaries,
and (b) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a Lien upon the property of Xxxxxx or any Restricted
Subsidiary of Xxxxxx; PROVIDED, HOWEVER, that neither LGII nor Xxxxxx shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which
adequate provision has been made or where the failure to effect such payment
or discharge is not adverse in any material respect to Xxxxxx.
4.05. MAINTENANCE OF PROPERTIES; INSURANCE; BOOKS AND RECORDS;
COMPLIANCE WITH LAW.
(a) Each of LGII and Xxxxxx shall, and shall cause each of its
Restricted Subsidiaries (including, without limitation, LGII) to, cause all
properties and assets to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, additions, betterments and improvements thereto, as shall be
reasonably necessary for the proper conduct of its business; PROVIDED, HOWEVER,
that nothing in this Section 4.05(a) shall prevent Xxxxxx or any of its
Restricted Subsidiaries from discontinuing
- 30 -
the operation and maintenance of any of its properties or assets if such
discontinuance is, in the judgment of the Board of Directors of Xxxxxx or such
Restricted Subsidiary, desirable in the conduct of its business and if such
discontinuance is not materially adverse to either Xxxxxx and its Subsidiaries
taken as a whole or the ability of LGII or Xxxxxx to otherwise satisfy its
obligations hereunder.
(b) Each of LGII and Xxxxxx shall, and shall cause each of its
Restricted Subsidiaries (including, without limitation, LGII) to, maintain
with financially sound and reputable insurers such insurance as may be
required by law (other than with respect to any environmental impairment
liability insurance not commercially available) and such other insurance to
such extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated (which may include self-insurance
in the same form as is customarily maintained by companies similarly situated).
(c) Each of LGII and Xxxxxx shall, and shall cause each of its
Restricted Subsidiaries (including, without limitation, LGII) to, keep proper
books of record and account, in which full and correct entries shall be made
of all business and financial transactions of Xxxxxx and each Restricted
Subsidiary of Xxxxxx and reflect on its financial statements adequate accruals
and appropriations to reserves, all in accordance with GAAP consistently
applied to Xxxxxx and its Subsidiaries taken as a whole.
(d) Each of LGII and Xxxxxx shall and shall cause each of its
Restricted Subsidiaries (including, without limitation, LGII) to comply with
all statutes, laws, ordinances, or government rules and regulations to which
it is subject, non-compliance with which would materially adversely affect the
business, earnings, properties, assets or condition (financial or otherwise)
of Xxxxxx and its Subsidiaries taken as a whole.
4.06. COMPLIANCE CERTIFICATE.
(a) Each of LGII and Xxxxxx will deliver to the Trustee within 60
days after the end of each of Xxxxxx'x first three fiscal quarters and within
90 days after the end of Xxxxxx'x fiscal year an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default under this
Indenture by LGII or Xxxxxx or an event which, with notice or lapse of time or
both, would constitute a default by LGII or Xxxxxx under any Pari Passu
Indebtedness that occurred during such fiscal period. If they do know of such
a Default, Event of Default or default, the certificate shall describe any
such Default, Event of Default or default and its status. The first
certificate to be delivered pursuant to this Section 4.06(a) shall be for the
first fiscal quarter of Xxxxxx beginning after the Issue Date. The Guarantor
shall also deliver a certificate to the Trustee at least annually from its
principal executive, financial or accounting officer as to his or her
knowledge of LGII's and Xxxxxx'x compliance with all conditions and covenants
under this Indenture and LGII's, such compliance to be determined without
regard to any period of grace or requirement of notice provided herein or
therein.
(b) The Guarantor shall deliver to the Trustee within 90 days
after the end of each fiscal year a written statement by LGII's and Xxxxxx'x
independent chartered accountants stating (A) that their audit examination has
included a review of the terms of this Indenture and
- 31 -
the Notes as they relate to accounting matters, and (B) whether, in connection
with their audit examination, any Default or Event of Default under this
Indenture or an event which, with notice or lapse of time or both, would
constitute a default under any Pari Passu Indebtedness has come to their
attention and, if such a Default, Event of Default or a default under any Pari
Passu Indebtedness has come to their attention, specifying the nature and
period of existence thereof; PROVIDED, HOWEVER, that, without any restriction
as to the scope of the audit examination, such independent certified public
accountants shall not be liable by reason of any failure to obtain knowledge
of any such Default, Event of Default or a default under any Pari Passu
Indebtedness that would not be disclosed in the course of an audit examination
conducted in accordance with GAAP.
(c) Each of LGII and Xxxxxx will deliver to the Trustee as soon
as possible, and in any event within 10 days after LGII and/or Xxxxxx, as the
case may be, becomes aware or should reasonably have become aware of the
occurrence of any Default, Event of Default or an event which, with notice or
lapse of time or both, would constitute a default by LGII and/or Xxxxxx, as
the case may be, under any Indebtedness, an Officers' Certificate specifying
such Default, Event of Default or default and what action LGII and/or Xxxxxx,
as the case may be, is taking or proposes to take with respect thereto.
4.07. LIMITATION ON INDEBTEDNESS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
create, incur, issue, assume, guarantee or in any manner become directly or
indirectly liable, contingently or otherwise, for the payment of
(collectively, to "incur") any Indebtedness (including, without limitation,
any Acquired Indebtedness) other than Permitted Indebtedness. Notwithstanding
the foregoing limitations, Xxxxxx and LGII (and any Wholly-Owned Subsidiary
with respect to Seller Financing Indebtedness) will be permitted to incur
Indebtedness (including, without limitation, Acquired Indebtedness) if at the
time of such incurrence, and after giving PRO FORMA effect thereto, the
Consolidated Fixed Charge Coverage Ratio of Xxxxxx is at least equal to 2.25:1.
4.08. LIMITATION ON RESTRICTED PAYMENTS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly:
(a) declare or pay any dividend or make any other distribution
or payment on or in respect of Capital Stock of Xxxxxx or any of its
Restricted Subsidiaries or any payment made to the direct or indirect
holders (in their capacities as such) of Capital Stock of Xxxxxx or any of
its Restricted Subsidiaries (other than (x) dividends or distributions
payable solely in Capital Stock of Xxxxxx (other than Redeemable Capital
Stock) or in options, warrants or other rights to purchase Capital Stock of
Xxxxxx (other than Redeemable Capital Stock) and (y) dividends or other
distributions to the extent declared or paid to Xxxxxx or any Wholly-Owned
Subsidiary of Xxxxxx),
- 32 -
(b) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of Xxxxxx or any of its Restricted Subsidiaries
(other than any such Capital Stock of a Wholly-Owned Subsidiary of Xxxxxx),
(c) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior to any
scheduled maturity, scheduled repayment, scheduled sinking fund payment or
other Stated Maturity, any Indebtedness that is subordinate or junior in
right of payment to the Notes or Pari Passu Indebtedness (other than any
such subordinated or Pari Passu Indebtedness owned by Xxxxxx or a
Wholly-Owned Subsidiary of Xxxxxx), or
(d) make any Investment (other than any Permitted Investment) in
any person,
(such payments or Investments described in the preceding clauses (a), (b), (c)
and (d) are collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to the proposed Restricted Payment (the amount
of any such Restricted Payment, if other than cash, shall be the Fair Market
Value on the date of such Restricted Payment of the asset(s) proposed to be
transferred by Xxxxxx or such Restricted Subsidiary, as the case may be,
pursuant to such Restricted Payment), (A) no Default or Event of Default shall
have occurred and be continuing, (B) immediately prior to and after giving
effect to such Restricted Payment, Xxxxxx would be able to incur $1.00 of
additional Indebtedness pursuant to Section 4.07 (assuming a market rate of
interest with respect to such additional Indebtedness) and (C) the aggregate
amount of all Restricted Payments declared or made from and after the
Measurement Date would not exceed the sum of (1) 50% of the aggregate
Consolidated Net Income of Xxxxxx accrued on a cumulative basis during the
period beginning on the first day of the fiscal quarter of Xxxxxx during which
the Measurement Date occurs and ending on the last day of the fiscal quarter of
Xxxxxx immediately preceding the date of such proposed Restricted Payment, which
period shall be treated as a single accounting period (or, if such aggregate
cumulative Consolidated Net Income of Xxxxxx for such period shall be a deficit,
minus 100% of such deficit) plus (2) the aggregate net cash proceeds received by
Xxxxxx or LGII (without duplication) either (x) as capital contributions to
Xxxxxx or LGII (without duplication) after the Measurement Date from any person
(other than Xxxxxx, LGII or a Restricted Subsidiary of Xxxxxx or LGII, as the
case may be) or (y) from the issuance or sale of Capital Stock (excluding
Redeemable Capital Stock, but including Capital Stock issued upon the conversion
of convertible Indebtedness or from the exercise of options, warrants or rights
to purchase Capital Stock (other than Redeemable Capital Stock)) of Xxxxxx or
LGII (without duplication) to any person (other than to Xxxxxx, LGII or a
Restricted Subsidiary of Xxxxxx or LGII, as the case may be) after the
Measurement Date plus (3) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment made after the Measurement Date
(excluding any Investment described in clause (v) of the following paragraph),
an amount equal to the lesser of the return of capital with respect to such
Investment and the cost of such Investment less, in either case, the cost of the
disposition of such Investment plus (4) the sum of $15,000,000. For purposes of
the preceding clause (C)(2), the value of the aggregate net proceeds received by
Xxxxxx or LGII (without duplication) upon the issuance of Capital Stock upon the
conversion of convertible Indebtedness or upon the exercise of options, warrants
or rights will be the net cash proceeds received upon the issuance of
- 33 -
such Indebtedness, options, warrants or rights plus the incremental cash amount
received by Xxxxxx or LGII (without duplication) upon the conversion or exercise
thereof.
None of the foregoing provisions will prohibit (i) the payment of any
dividend within 60 days after the date of its declaration, if at the date of
declaration such payment would be permitted by the foregoing paragraph; (ii) so
long as no Default or Event of Default shall have occurred and be continuing,
the redemption, repurchase or other acquisition or retirement of any shares of
any class of Capital Stock of Xxxxxx, LGII or any Restricted Subsidiary of
Xxxxxx or LGII in exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to Xxxxxx or LGII from any
person (other than a Related Obligor) or (y) issue and sale of other shares of
Capital Stock (other than Redeemable Capital Stock) of Xxxxxx or LGII to any
person (other than to a Related Obligor); (iii) so long as no Default or Event
of Default shall have occurred and be continuing, any redemption, repurchase or
other acquisition or retirement of Indebtedness that is subordinate or junior in
right of payment to the Notes and the Guarantee by exchange for, or out of the
net cash proceeds of, a substantially concurrent (x) capital contribution to
Xxxxxx or LGII from any person (other than a Related Obligor) or (y) issue and
sale of (1) Capital Stock (other than Redeemable Capital Stock) of Xxxxxx or
LGII to any person (other than a Related Obligor); PROVIDED, HOWEVER, that the
amount of any such net proceeds that are utilized for any such redemption,
repurchase or other acquisition or retirement shall be excluded from clause
(C)(2) of the preceding paragraph; or (2) Indebtedness of Xxxxxx or LGII issued
to any person (other than a Related Obligor), so long as such Indebtedness is
Pari Passu Indebtedness or Indebtedness that is subordinate or junior in right
of payment to the Notes and the Guarantee in the same manner and at least to the
same extent as the Indebtedness so purchased, exchanged, redeemed, acquired or
retired; (iv) so long as no Default or Event of Default shall have occurred and
be continuing, any redemption, repurchase or other acquisition or retirement of
Pari Passu Indebtedness by exchange for, or out of the net cash proceeds of, a
substantially concurrent (x) capital contribution to Xxxxxx or LGII from any
person (other than a Related Obligor) or (y) issue and sale of (1) Capital Stock
(other than Redeemable Capital Stock) of Xxxxxx or LGII to any person (other
than a Related Obligor); PROVIDED, HOWEVER, that the amount of any such net
proceeds that are utilized for any such redemption, repurchase or other
acquisition or retirement shall be excluded from clause (C)(2) of the preceding
paragraph; or (2) Indebtedness of Xxxxxx or LGII issued to any person (other
than a Related Obligor), so long as such Indebtedness is Pari Passu Indebtedness
or Indebtedness that is subordinate or junior in right of payment to the Notes
and the Guarantee in the same manner and at least to the same extent as the
Indebtedness so purchased, exchanged, redeemed, acquired or retired; (v)
Investments constituting Restricted Payments made as a result of the receipt of
consideration that consists of cash or Cash Equivalents from any Asset Sale made
pursuant to and in compliance with Section 4.12; (vi) so long as no Default or
Event of Default has occurred and is continuing, repurchases by Xxxxxx of Common
Stock of Xxxxxx from employees of Xxxxxx or their authorized representatives
upon the death, disability or termination of employment of such employees, in an
aggregate amount not exceeding $10,000,000 in any calendar year; (vii)
Investments constituting Restricted Payments that are permitted by subparagraphs
(iv) and (v) of the proviso to Section 4.13; and (viii) the declaration or the
payment of dividends on, or the scheduled purchase or redemption of, the
Preferred Securities of a Special Finance Subsidiary or the Series C Preferred
Shares, of Xxxxxx. In computing the amount of Restricted Payments
- 34 -
previously made for purposes of clause (C) of the preceding paragraph,
Restricted Payments made under the preceding clauses (v), (vi) and (vii) shall
be included and those under clauses (i), (ii), (iii), (iv) and (viii) shall not
be so included. For purposes of this Section 4.08 only, the term "Related
Obligor" shall mean Xxxxxx, LGII or a Restricted Subsidiary of Xxxxxx or LGII.
4.09. LIMITATION ON ISSUANCES AND SALE OF PREFERRED STOCK BY
RESTRICTED SUBSIDIARIES.
The Guarantor (a) will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to issue any Preferred Stock (other than
(i) Preferred Stock issued to Xxxxxx or a Wholly-Owned Subsidiary of Xxxxxx and
(ii) Preferred Securities of a Special Finance Subsidiary); and (b) will not
permit any person to own any Preferred Stock of any Restricted Subsidiary of
Xxxxxx (other than (i) Preferred Stock owned by Xxxxxx or a Wholly-Owned
Subsidiary of Xxxxxx and (ii) Preferred Securities of a Special Finance
Subsidiary); PROVIDED, HOWEVER, that this covenant shall not prohibit the
issuance and sale of (x) all, but not less than all, of the issued and
outstanding Capital Stock of any Restricted Subsidiary of Xxxxxx owned by Xxxxxx
or any of its Restricted Subsidiaries in compliance with the other provisions of
this Indenture or (y) directors' qualifying shares or investments by foreign
nationals mandated by applicable law.
4.10. LIMITATION ON LIENS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, create, incur, assume or
suffer to exist any Liens of any kind against or upon any of its property or
assets, or any proceeds therefrom where the aggregate amount of Indebtedness
secured by any such Liens, together with the aggregate amount of property
subject to any Sale-Leaseback Transactions of Xxxxxx and its Restricted
Subsidiaries (other than Permitted Sale-Leaseback Transactions), exceeds 10% of
Xxxxxx'x Consolidated Net Worth, unless (x) in the case of Liens securing
Indebtedness that is subordinate or junior in right of payment to the Notes, the
Notes are secured by a Lien on such property, assets or proceeds that is senior
in priority to such Liens and (y) in all other cases, the Notes are equally and
ratably secured except for (a) Liens existing as at the Measurement Date;
(b) Liens securing the Notes or the Guarantee; (c) Liens in favor of Xxxxxx,
LGII or any Wholly-Owned Subsidiary; (d) Liens securing Indebtedness which is
incurred to refinance Indebtedness which has been secured by a Lien permitted
under the provisions of this Indenture and which has been incurred in accordance
with the provisions of the Indenture; PROVIDED, HOWEVER, that such Liens do not
extend to or cover any property or assets of Xxxxxx or any of its Restricted
Subsidiaries not securing the Indebtedness so refinanced; and (e) Permitted
Liens.
4.11. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, LGII will be, and Xxxxxx
will ensure that LGII will be, obligated to make an offer to purchase (a "Change
of Control Offer"), and shall purchase, on a Business Day (the "Change of
Control Purchase Date") not more than 60 nor less than 30 days following the
occurrence of the Change of Control, all of the then outstanding Notes properly
tendered and not withdrawn at a purchase price (the "Change of
- 35 -
Control Purchase Price") equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the Change of Control Purchase Date.
The Change of Control Offer is required to remain open for at least 20
Business Days and until the close of business on the Change of Control
Purchase Date.
Notice of a Change of Control Offer shall be mailed by LGII not later
than the 30th day after the date of occurrence of the Change of Control to the
Holders of Notes at their last registered addresses with a copy to the Trustee
and the Paying Agent. The Change of Control Offer shall remain open from the
time of mailing for at least 20 Business Days and until 5:00 p.m., New York City
time, on the Change of Control Purchase Date. The notice, which shall govern
the terms of the Change of Control Offer, shall include such disclosures as are
required by law and shall state:
(a) that the Change of Control Offer is being made pursuant to
this Section 4.11 and that all Notes validly tendered into the Change of
Control Offer and not withdrawn will be accepted for payment;
(b) the purchase price (including the amount of accrued
interest, if any) for each Note, the Change of Control Purchase Date and
the date on which the Change of Control Offer expires;
(c) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless LGII shall default in the payment of the
purchase price, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(e) that Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Change of Control Purchase Date and must
complete any form of letter of transmittal proposed by LGII and reasonably
acceptable to the Trustee and the Paying Agent;
(f) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a tested telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Notes the Holder delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is withdrawing
its election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part will be
issued Notes equal in principal amount to the unpurchased portion of the
Notes surrendered;
(h) the instructions that Holders must follow in order to tender
their Notes; and
- 36 -
(i) information concerning the business of LGII and Xxxxxx, the
most recent annual and quarterly reports of Xxxxxx filed with the
Commission pursuant to the Exchange Act (or, if Xxxxxx is not then
permitted to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 4.17), a description of material
developments in the business of LGII and Xxxxxx, information with respect
to PRO FORMA historical financial information after giving effect to such
Change of Control and such other information concerning the circumstances
and relevant facts regarding such Change of Control Offer as would be
material to a Holder of Notes in connection with the decision of such
Holder as to whether or not it should tender Notes pursuant to the Change
of Control Offer.
On the Change of Control Purchase Date, LGII shall (i) accept for
payment Notes or portions thereof validly tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by LGII. The Paying Agent
shall promptly mail or deliver to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted shall be
promptly mailed or delivered by LGII to the Holder thereof. LGII will publicly
announce the results of the Change of Control Offer not later than the first
Business Day following the Change of Control Purchase Date.
If a Change of Control occurs and LGII fails to pay the Purchase Price
for all Notes properly tendered and not withdrawn, Xxxxxx will be obliged to
purchase all such Notes at the Change of Control Purchase Price on the Change of
Control Purchase Date in compliance with the requirements applicable to a Change
of Control Offer made by LGII.
LGII shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in a
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by LGII and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer.
LGII and Xxxxxx will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer.
4.12. DISPOSITION OF PROCEEDS OF ASSET SALES.
(a) The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) or First Capital Life
Insurance Company of Louisiana, National Capital Life Insurance Company,
Security Industrial Insurance Company, Security Industrial Fire Insurance
Company or any successors to such Subsidiaries to, make any Asset Sale unless
(a) Xxxxxx or such Restricted Subsidiary, as the case may be, receives
- 37 -
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the shares or assets sold or otherwise disposed of and (b) at least 75%
of such consideration consists of cash or Cash Equivalents. To the extent the
Net Cash Proceeds of any Asset Sale are not required to be applied to repay, and
permanently reduce the commitments under, the Credit Agreements (as required by
the terms thereof) or any other Pari Passu Indebtedness, or are not so applied,
Xxxxxx or such Restricted Subsidiary, as the case may be, may, within 180 days
of such Asset Sale, apply such Net Cash Proceeds to an investment in properties
and assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of
Xxxxxx and its Restricted Subsidiaries existing on the Issue Date or in
businesses reasonably related thereto ("Replacement Assets"). Any Net Cash
Proceeds from any Asset Sale that are neither used to repay, and permanently
reduce the commitments under, the Credit Agreements nor invested in Replacement
Assets within the 180-day period described above constitute "Excess Proceeds"
subject to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000, Xxxxxx shall cause LGII to make an offer to purchase (an "Asset
Sale Offer"), from all holders of the Notes, not more than 40 Business Days
thereafter, an aggregate principal amount of Notes equal to such Excess
Proceeds, at a price in cash equal to 100% of the outstanding principal amount
thereof plus accrued and unpaid interest, if any, to the purchase date (the
"Asset Sale Offer Price").
(c) Notice of an Asset Sale Offer shall be mailed by LGII to all
Holders of Notes not less than 20 Business Days nor more than 40 Business Days
before the Asset Sale Purchase Date at their last registered address with a copy
to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open
from the time of mailing for at least 20 Business Days and until at least 5:00
p.m., New York City time, on the Asset Sale Purchase Date. The notice, which
shall govern the terms of the Asset Sale Offer, shall include such disclosures
as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.12;
(2) the Asset Sale Offer Price (including the amount of accrued
interest, if any) for each Note, the Asset Sale Purchase Date and the date
on which the Asset Sale Offer expires;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest in accordance with the terms thereof;
(4) that, unless LGII shall default in the payment of the Asset
Sale Offer Price, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have Notes purchased pursuant to an
Asset Sale Offer will be required to surrender their Notes to the Paying
Agent at the address specified in the notice prior to 5:00 p.m., New York
City time, on the Asset Sale Purchase
- 38 -
Date and must complete any form of letter of transmittal proposed by LGII
and reasonably acceptable to the Trustee and the Paying Agent;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than 5:00 p.m., New York City time, on
the Asset Sale Purchase Date, a tested telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of Notes
the Holder delivered for purchase, the Note certificate number (if any) and
a statement that such Holder is withdrawing its election to have such Notes
purchased;
(7) that if Notes in a principal amount in excess of the
Holder's PRO RATA share of the amount of Excess Proceeds are tendered
pursuant to the Asset Sale Offer, LGII shall purchase Notes on a PRO RATA
basis among the Notes tendered (with such adjustments as may be deemed
appropriate by LGII so that only Notes in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Notes are purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered;
(9) the instructions that Holders must follow in order to tender
their Notes; and
(10) information concerning the business of LGII and Xxxxxx, the
most recent annual and quarterly reports of Xxxxxx filed with the
Commission pursuant to the Exchange Act (or, if Xxxxxx is not permitted to
file any such reports with the Commission, the comparable reports prepared
pursuant to Section 4.17), a description of material developments in the
business of LGII and Xxxxxx, information with respect to PRO FORMA
historical financial information after giving effect to such Asset Sale and
Asset Sale Offer and such other information concerning the circumstances
and relevant facts regarding such Asset Sale Offer as would be material to
a Holder of Notes in connection with the decision of such Holder as to
whether or not it should tender Notes pursuant to the Asset Sale Offer.
(11) On the Asset Sale Purchase Date, LGII shall (i) accept for
payment, on a PRO RATA basis, Notes or portions thereof tendered pursuant
to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, in an amount sufficient to pay the Asset Sale
Offer Price of all Notes or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Notes so accepted together with an
Officers' Certificate setting forth the Notes or portions thereof tendered
to and accepted for payment by LGII. The Paying Agent shall promptly mail
or deliver to Holders of Notes so accepted payment in an amount equal to
the Asset Sale Offer Price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted
shall be promptly mailed or delivered by LGII to the Holder thereof. LGII
will publicly announce the results of the Asset Sale Offer not later than
the first Business
- 39 -
Day following the Asset Sale Purchase Date. To the extent that the
aggregate principal amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, LGII or Xxxxxx, as the case may
be, may use such deficiency for general corporate purposes. Upon
completion of such Asset Sale Offer, the amount of Excess Proceeds shall
be reset to zero. For purposes of this Section 4.12, the Trustee shall
act as Paying Agent.
(12) LGII and Xxxxxx will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Notes
pursuant to the Asset Sale Offer.
4.13. LIMITATION ON TRANSACTIONS WITH INTERESTED PERSONS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
enter into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, transfer, disposition, purchase,
exchange or lease of assets, property or services) with, or for the benefit of,
any Affiliate of Xxxxxx or any beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately, after the passage of
time or upon the happening of an event) of 5% or more of the Common Shares at
any time outstanding ("Interested Persons"), unless (a) such transaction or
series of related transactions are on terms that are no less favorable to Xxxxxx
or such Restricted Subsidiary, as the case may be, than those which could have
been obtained in a comparable transaction at such time from persons who are not
Affiliates of Xxxxxx or Interested Persons, (b) with respect to a transaction or
series of transactions involving aggregate payments or value equal to or greater
than $10,000,000, Xxxxxx has obtained a written opinion from an Independent
Financial Advisor stating that the terms of such transaction or series of
transactions are fair to Xxxxxx or its Restricted Subsidiary, as the case may
be, from a financial point of view and (c) with respect to a transaction or
series of transactions involving aggregate payments or value equal to or greater
than $2,500,000, Xxxxxx shall have delivered an Officer's Certificate to the
Trustee certifying that such transaction or series of transactions comply with
the preceding clause (a) and, if applicable, certifying that the opinion
referred to in the preceding clause (b) has been delivered and that such
transaction or series of transactions has been approved by a majority of the
Board of Directors of Xxxxxx (including a majority of the disinterested
directors); PROVIDED, HOWEVER, that this covenant will not restrict Xxxxxx from
(i) paying dividends in respect of its Capital Stock permitted under Section
4.08, (ii) paying reasonable and customary fees to directors of Xxxxxx or any
Restricted Subsidiary who are not employees of Xxxxxx or any Restricted
Subsidiary, (iii) entering into transactions with its Wholly-Owned Subsidiaries
or permitting its Wholly-Owned Subsidiaries from entering into transactions with
other Wholly-Owned Subsidiaries of Xxxxxx, (iv) making loans or advances to
senior officers and directors of Xxxxxx or any Restricted Subsidiary not in
excess of $6,000,000 in the aggregate at any one time outstanding, (v)
guaranteeing loans made to officers and other employees of Xxxxxx or any
Restricted Subsidiaries in connection with Xxxxxx'x 1994 Management Equity
Investment Plan not in excess of $6,000,000 in the aggregate at any tone time
outstanding, (vi) making loans or advances to officers, employees or
consultants of Xxxxxx and its Restricted Subsidiaries for
- 40 -
travel and moving expenses in the ordinary course of business for bona fide
business purposes of Xxxxxx and its Restricted Subsidiaries, (vii) making
other loans or advances to officers, employees or consultants of Xxxxxx and
its Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes of Xxxxxx and its Restricted Subsidiaries not in excess of
$10,000,000 in the aggregate at any one time outstanding, (viii) making
payments to officers or employees of Xxxxxx or its Restricted Subsidiaries
pursuant to obligations undertaken, at a time when such persons were not
officers or employees of Xxxxxx or its Restricted Subsidiaries, in connection
with arms' length Asset Acquisitions or (ix) declaring or paying dividends
on, or purchasing or redeeming, the Preferred Securities of a Special Finance
Subsidiary.
4.14. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Restricted Subsidiary of Xxxxxx to (a) pay
dividends, in cash or otherwise, or make any other distributions on or in
respect of its Capital Stock or any other interest or participation in, or
measured by, its profits, (b) pay any Indebtedness owed to Xxxxxx or any other
Restricted Subsidiary of Xxxxxx, (c) make loans or advances to, or any
Investment in, Xxxxxx or any other Restricted Subsidiary of Xxxxxx, (d) transfer
any of its properties or assets to Xxxxxx or any other Restricted Subsidiary of
Xxxxxx or (e) guarantee any Indebtedness of Xxxxxx or any other Restricted
Subsidiary of Xxxxxx, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) customary non-assignment
provisions of any contract or any lease governing a leasehold interest of Xxxxxx
or any Restricted Subsidiary of Xxxxxx, (iii) customary restrictions on
transfers of property subject to a Lien permitted under the provisions of this
Indenture which could not materially adversely affect Xxxxxx'x ability to
satisfy its obligations under the provisions of this Indenture and the Notes,
(iv) any agreement or other instrument of a person acquired by Xxxxxx or any
Restricted Subsidiary of Xxxxxx (or a Restricted Subsidiary of such person) in
existence at the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any person, or
the properties or assets of any person, other than the person, or the properties
or assets of the person, so acquired, (v) provisions contained in any agreement
or instrument relating to Indebtedness which prohibit the transfer of all or
substantially all of the assets of the obligor thereunder unless the transferee
shall assume the obligations of the obligor under such agreement or instrument
and (vi) encumbrances and restrictions under Indebtedness in effect on the Issue
Date (including under the Notes) and encumbrances and restrictions in permitted
refinancings or replacements thereof which are no less favorable to the holders
of the Notes than those contained in the Indebtedness so refinanced or replaced.
4.15. LIMITATIONS ON SALE-LEASEBACK TRANSACTIONS.
The Guarantor will not, and will not permit any of its Restricted
Subsidiaries (including, without limitation, LGII) to, enter into any
Sale-Leaseback Transaction with respect to any property of Xxxxxx or any of its
Restricted Subsidiaries where the aggregate amount of property subject to such
Sale- Leaseback Transactions, together with the aggregate amount of
- 41 -
Liens securing Indebtedness of Xxxxxx and its Restricted Subsidiaries (other
than Permitted Liens), exceeds 10% of Xxxxxx'x Consolidated Net Worth.
Notwithstanding the foregoing, Xxxxxx and its Restricted Subsidiaries may enter
into Sale-Leaseback Transactions ("Permitted Sale-Leaseback Transactions") with
respect to property acquired or constructed after the Issue Date; PROVIDED that
(a) the Attributable Value of such Sale-Leaseback Transaction shall be deemed to
be Indebtedness of Xxxxxx or such Restricted Subsidiary, as the case may be, and
(b) after giving PRO FORMA effect to any such Sale-Leaseback Transaction and the
foregoing clause (a), Xxxxxx would be able to incur $1.00 of additional
Indebtedness pursuant to 4.07 (assuming a market rate of interest with respect
to such additional Indebtedness).
4.16. LIMITATION ON APPLICABILITY OF CERTAIN COVENANTS.
During any period of time that (i) the ratings assigned to the Notes
by each of S&P and Xxxxx'x (collectively, the "Rating Agencies") are no less
than BBB-and Baa3, respectively (the "Investment Grade Ratings"), and (ii) no
Default or Event of Default has occurred and is continuing, Xxxxxx and its
Restricted Subsidiaries (including, without limitation, LGII) will not be
subject to the covenants contained in Sections 4.07, 4.08, 4.09, 4.12, 4.13 and
4.14 (collectively, the "Suspended Covenants"). If one or both Rating Agencies
withdraws its rating or downgrades its Investment Grade Rating, then thereafter
Xxxxxx and its Restricted Subsidiaries will be subject, on a prospective basis,
to the Suspended Covenants (until the Rating Agencies have again assigned
Investment Grade Ratings to the Notes) and compliance with the Suspended
Covenants with respect to Restricted Payments made after the time of such
withdrawal or downgrade will be calculated in accordance with the covenant
contained in Section 4.07 as if such covenant had been in effect at all times
after the Measurement Date.
4.17. COMMISSION REPORTS.
The Guarantor shall file with the Commission, or if not permitted or
required to so file will deliver to the Trustee, the annual reports, quarterly
reports and the information, documents and other reports required to be filed
with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether
or not Xxxxxx has a class of securities registered under the Exchange Act. In
accordance with the provisions of TIA Section 314(a), Xxxxxx shall file with the
Trustee and provide to each Holder, within 15 days after it files them with the
Commission (or if such filing is not permitted under the Exchange Act, 15 days
after Xxxxxx would have been required to make such filing), copies of such
reports. The Guarantor also shall comply with the other provisions of TIA
Section 314(a). In addition, Xxxxxx shall cause its annual reports to
stockholders and any quarterly or other financial reports furnished by it to
stockholders generally to be filed with the Trustee and mailed no later than
the date such materials are mailed or made available to Xxxxxx'x stockholders,
to the Holders at their addresses as set forth in the register of securities
maintained by the Registrar.
4.18. RULE 144A INFORMATION REQUIREMENT.
If at any time Xxxxxx is no longer subject to the reporting
requirements of the Exchange Act, it will furnish to the Holders or beneficial
holders of the Notes and prospective
- 42 -
purchasers of the Notes designated by the holders of the Notes, upon their
request, any information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
4.19. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of LGII and Xxxxxx covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law which would prohibit or forgive LGII or Xxxxxx, as
the case may be, from paying all or any portion of the principal of, premium, if
any, or interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully do so)
each of LGII and Xxxxxx hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
5.01. WHEN LGII MAY MERGE, ETC.
(a) The Guarantor will not, and will not permit LGII to, in any
transaction or series of transactions, merge or consolidate with or into, or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to, any person or
persons, and Xxxxxx will not permit any of its Restricted Subsidiaries
(including, without limitation, LGII) to enter into any such transaction or
series of transactions if such transaction or series of transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of the properties and assets of
Xxxxxx or LGII or Xxxxxx and its Restricted Subsidiaries, taken as a whole, or
LGII and its Restricted Subsidiaries, taken as a whole, to any other person or
persons, unless at the time of and after giving effect thereto (a) either (i) if
the transaction or series of transactions is a merger or consolidation, Xxxxxx
or LGII or the Restricted Subsidiary, as the case may be, shall be the surviving
person of such merger or consolidation, or (ii) the person formed by such
consolidation or into which Xxxxxx, LGII or such Restricted Subsidiary, as the
case may be, is merged or to which the properties and assets of Xxxxxx, LGII or
such Restricted Subsidiary, as the case may be, are transferred (any such
surviving person or transferee person being the "Surviving Entity") shall be a
corporation organized and existing under the laws of the United States of
America, any state thereof, the District of Columbia, Canada or any province
thereof and shall expressly assume by a supplemental indenture executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of, premium, if any, and interest on
all the Notes and the performance and observance of every covenant and
obligation of this Indenture and the Notes on the part of Xxxxxx or LGII, as the
case may be, to be performed or observed and, in each case, this Indenture shall
remain in full
- 43 -
force and effect; (b) immediately before and immediately after giving effect
to such transaction or series of transactions on a PRO FORMA basis (including,
without limitation, any Indebtedness incurred or anticipated to be incurred
in connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing and Xxxxxx, LGII or the Surviving Entity, as the case may be, after
giving effect to such transaction or series of transactions on a PRO FORMA basis
(including, without limitation, any Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction or series of
transactions), could incur $1.00 of additional Indebtedness pursuant to Section
4.07 (assuming a market rate of interest with respect to such additional
Indebtedness); (c) immediately after giving effect to such transaction or series
of transactions on a PRO FORMA basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), the Consolidated Net
Worth of Xxxxxx, LGII or the Surviving Entity, as the case may be, is at least
equal to the Consolidated Net Worth of Xxxxxx or LGII, as the case may be,
immediately before such transaction or series of transactions; and (d) Xxxxxx,
LGII or the Surviving Entity, as the case may be, shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each in form and
substance reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition and, if a supplemental indenture is required in connection with such
transaction or series of transactions, such supplemental indenture, complies
with this Indenture and that all conditions precedent herein provided for
relating to such transaction or series of transactions have been complied with;
PROVIDED, HOWEVER, that solely for purposes of computing amounts described in
subclause (C) of Section 4.08, any such successor person shall only be deemed to
have succeeded to and be substituted for Xxxxxx or LGII, as the case may be,
with respect to periods subsequent to the effective time of such merger,
consolidation or transfer of assets.
5.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of Xxxxxx or LGII in accordance with Section 5.01 hereof, the successor
person or persons formed by such consolidation or into which Xxxxxx or LGII is
merged or the successor person to which such sale, assignment, conveyance,
transfer, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of, Xxxxxx or LGII, as
the case may be, under this Indenture and the Notes with the same effect as if
such successor had been named as Xxxxxx or LGII, as the case may be, herein;
PROVIDED, HOWEVER, that solely for purposes of computing amounts described in
subclause (C) of Section 4.08, any such successor person shall only be deemed to
have succeeded to and be substituted for Xxxxxx or LGII, as the case may be,
with respect to periods subsequent to the effective time of such merger,
consolidation or transfer of assets.
ARTICLE SIX
REMEDIES
- 44 -
6.01. EVENTS OF DEFAULT.
An "Event of Default" with respect to the Notes means any of the
following events:
(a) default in the payment of the principal of or premium, if
any, on any Note when the same becomes due and payable (upon Stated
Maturity, acceleration, required purchase, scheduled principal payment or
otherwise); or
(b) default in the payment of an installment of interest on any
of the Notes, when the same becomes due and payable, and any such Default
continues for a period of 30 days; or
(c) failure to perform or observe any other term, covenant or
agreement contained in the Notes or the Guarantee with respect to Notes or
pursuant to the provisions of this Indenture (other than Defaults specified
in clause (a) or (b) above) and such Default continues for a period of 30
days after written notice of such Default requiring Xxxxxx and LGII to
remedy the same shall have been given (i) to Xxxxxx and LGII by the Trustee
or (ii) to Xxxxxx, LGII and the Trustee by Holders of at least 25% in
aggregate principal amount of the Notes then outstanding; or
(d) default or defaults under one or more agreements,
instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which Xxxxxx or any Restricted Subsidiary of Xxxxxx
(including, without limitation, LGII) then has outstanding Indebtedness in
excess of $20,000,000 individually or in the aggregate, and either
(i) such Indebtedness is already due and payable in full or (ii) such
default or defaults have resulted in the acceleration of the maturity of
such Indebtedness; or
(e) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $20,000,000, either individually or in the
aggregate, shall be entered against Xxxxxx or any Restricted Subsidiary of
Xxxxxx (including, without limitation, LGII) or any of their respective
properties and shall not be discharged or bonded against or stayed and
there shall have been a period of 60 days after the date on which any
period for appeal has expired and during which a stay of enforcement of
such judgment, order or decree, shall not be in effect; or
(f) either (i) the collateral agent under the Collateral Trust
Agreement or (ii) any holder of at least $20,000,000 in aggregate principal
amount of Indebtedness of Xxxxxx or any of its Restricted Subsidiaries
(including, without limitation, LGII) shall commence judicial proceedings
to foreclose upon assets of Xxxxxx or any of its Restricted Subsidiaries
having an aggregate Fair Market Value, individually or in the aggregate, in
excess of $20,000,000 or shall have exercised any right under applicable
law or applicable security documents to take ownership of any such assets
in lieu of foreclosure; or
- 45 -
(g) Xxxxxx or any Significant Subsidiary of Xxxxxx pursuant to
or under or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding;
(2) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(3) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(4) makes a general assignment for the benefit of its
creditors; or
(5) shall generally not pay its debts when such debts
become due or shall admit in writing its inability to pay its debts
generally; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against Xxxxxx or any Significant
Subsidiary of Xxxxxx in an involuntary case or proceeding,
(2) appoints a Custodian of Xxxxxx or any Significant
Subsidiary of Xxxxxx for all or substantially all of its properties,
or
(3) orders the liquidation of Xxxxxx or any Significant
Subsidiary of Xxxxxx,
and in each case the order or decree remains unstayed and in effect for 60
days; or
(i) the Guarantee ceases to be in full force and effect or is
declared null and void, or Xxxxxx denies that it has any further liability
under the Guarantee with respect to the Notes (including the Put Option),
or gives notice to such effect and such condition shall have continued for
a period of 60 days after written notice of such failure (which notice
shall specify the Default, demand that it be remedied and state that it is
a "Notice of Default") requiring Xxxxxx and LGII to remedy the same shall
have been given (x) to Xxxxxx and LGII by the Trustee or (y) to Xxxxxx,
LGII and the Trustee by Holders of at least 25% in aggregate principal
amount of the Notes of any series then outstanding.
Subject to the provisions of Sections 7.01 and 7.02, the Trustee
shall not be charged with knowledge of any Default or Event of Default unless
written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by LGII, Xxxxxx, the Paying Agent, any
Holder, any holder of Indebtedness or any of their respective agents.
- 46 -
6.02. ACCELERATION.
If an Event of Default (other than as specified in Section 6.01(g)
or 6.01(h)) occurs and is continuing with respect to the Notes of any series,
the Trustee, by written notice to Xxxxxx and LGII, or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding, by written
notice to the Trustee, Xxxxxx and LGII, may declare the principal of, premium,
if any, and accrued and unpaid interest, if any, on all of the Notes to be due
and payable immediately, upon which declaration, all amounts payable in
respect of the Notes shall be immediately due and payable. If an Event of
Default specified in Section 6.01(g) or 6.01(h) occurs and is continuing, then
the principal of, premium, if any, and accrued and unpaid interest, if any, on
all of the Notes shall IPSO FACTO become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder
of Notes.
After a declaration of acceleration hereunder with respect to the
Notes, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Notes, by written notice to Xxxxxx, LGII and the
Trustee, may rescind such declaration if (a) Xxxxxx or LGII has paid or
deposited with the Trustee a sum sufficient to pay (i) all amounts due the
Trustee under Section 7.08 and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all
overdue interest on all Notes, (iii) the principal of and premium, if any, on
any Notes which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes, and (iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest and overdue principal which has become due otherwise than by such
declaration of acceleration at the rate borne by the Notes; (b) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (c) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Notes that has become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 6.04.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right subsequent therein.
6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes
may be enforced by the Trustee even if it does not possess any of the Notes or
does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
- 47 -
6.04. WAIVER OF PAST DEFAULTS.
Subject to the provisions of Section 6.07 and 9.02, the Holders of
not less than a majority in aggregate principal amount of the outstanding
Notes of any series by notice to the Trustee may, on behalf of the Holders of
all the Notes of any such series, waive any existing Default or Event of
Default and its consequences, except a Default or Event of Default specified
in Section 6.01(a) or (b) or in respect of any provision hereof which cannot
be modified or amended without the consent of the Holder so affected pursuant
to Section 9.02. When a Default or Event of Default is so waived, it shall be
deemed cured and shall cease to exist.
6.05. CONTROL BY MAJORITY.
The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, PROVIDED,
HOWEVER, that the Trustee may refuse to follow any direction (a) that
conflicts with any rule of law or this Indenture, (b) that the Trustee
determines may be unduly prejudicial to the rights of another Noteholder, or
(c) that may expose the Trustee to personal liability unless the Trustee has
been provided reasonable indemnity against any loss or expense caused by its
following such direction; and PROVIDED, FURTHER, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction.
6.06. LIMITATION ON SUITS.
No Holder of any Notes shall have any right to institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee reasonable indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days
after receipt of the request and the offer and, if requested, provision of
indemnity; and
(5) during such 30-day period the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee
a direction which is inconsistent with the request;
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of, premium, if any, or
accrued interest on, such Note on or after the respective due dates set forth
in such Note.
- 48 -
A Holder may not use this Indenture to prejudice the rights of any
tother Holders or to obtain priority or preference over such other Holders.
6.07. RIGHT OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision in this Indenture, the right of
any Holder of a Note to receive payment of the principal of, premium, if any,
and interest on such Note, on or after the respective Stated Maturities
expressed in such Note, or to bring suit for the enforcement of any such
payment on or after the respective Stated Maturities, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in clause (a) or (b) of Section
6.01 occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against LGII, Xxxxxx or any other
obligor on the Notes for the whole amount of principal of, premium, if any,
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such interest is lawful, interest
on overdue installments of interest, in each case at the rate per annum borne
by the Notes and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
6.09. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to Xxxxxx, LGII or the
Subsidiaries of the of Xxxxxx and LGII (or any other obligor upon the Notes),
their creditors or their property and shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.08. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out such money in the following order:
- 49 -
First: to the Trustee for amounts due under Section 7.08;
Second: to the Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;
Third: to the Holders for principal amounts (including any premium)
owing under the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal (including
any premium); and
Fourth: the balance, if any, to LGII or Xxxxxx, as the case may be.
The Trustee, upon prior written notice to LGII, may fix a record
date and payment date for any payment to Noteholders pursuant to this Section
6.10.
6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court may in its discretion require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to any suit by the Trustee, any
suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than
10% in aggregate principal amount of the outstanding Notes.
6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Note or the Guarantee
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case LGII, Xxxxxx, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
ARTICLE SEVEN
TRUSTEE
7.01. DUTIES.
(a) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same
- 50 -
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default,
(1) the Trustee need perform only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05;
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01 hereof and the provisions of TIA Section 315:
- 51 -
(a) the Trustee may rely on any document reasonably believed by
it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(b) before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion
of Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(c) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of its own negligence.
(e) the Trustee may consult with counsel of its own choosing
and the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit.
(g) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee, any Paying Agent, Registrar or any other agent of LGII
or Xxxxxx, in its individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 7.11 and 7.12 and TIA Sections 310
and 311, may otherwise deal with LGII, Xxxxxx and their Subsidiaries with the
same rights it would have if it were not the Trustee, Paying Agent, Registrar
or such other agent.
7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes or of the Guarantee, it shall
not be accountable for LGII's use or application of the proceeds from the
Notes, it shall not be responsible for the use or application
- 52 -
of any money received by any Paying Agent other than the Trustee and it shall
not be responsible for any statement in the Notes other than the Trustee's
certificate of authentication.
7.05. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default or Event of Default within 30 days thereafter; PROVIDED, HOWEVER,
that, except in the case of a Default in the payment of the principal of,
premium, if any, or interest on any Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee of the board of directors or a committee of the directors
of the Trustee and/or Trust Officers in good faith determines that the
withholding of such notice is in the interest of the Holders.
7.06. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required herein or by law. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder, except as the Trustee may
agree with LGII.
7.07. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of the
events described in TIA Section 313(a) shall have occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as
of such May 15 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to LGII and filed with the Commission and each securities exchange, if
any, on which the Notes are listed.
LGII shall notify the Trustee in writing if the Notes become listed
on any securities exchange.
7.08. COMPENSATION AND INDEMNITY.
LGII and Xxxxxx covenant and agree to pay the Trustee from time to
time reasonable compensation for its services. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. LGII and Xxxxxx shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
LGII and Xxxxxx shall indemnify the Trustee for, and hold it
harmless against, any loss or liability incurred by it arising out of or in
connection with the administration of this
- 53 -
trust and its rights or duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify LGII and Xxxxxx promptly of any claim asserted against the
Trustee for which it may seek indemnity. LGII and Xxxxxx shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and LGII and Xxxxxx shall pay the reasonable fees and
expenses of such counsel. LGII and Xxxxxx need not pay for any settlement
made without its prior written consent. LGII and Xxxxxx need not reimburse
any expense or indemnify against any loss or liability to the extent incurred
by the Trustee through its negligence, bad faith or willful misconduct.
To secure the payment obligations of LGII and Xxxxxx in this Section
7.08, the Trustee shall have a Lien prior to the Notes on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of, premium, if any, or interest on particular Notes.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(g) or (h), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of LGII and Xxxxxx under this Section 7.08 and any
Lien arising hereunder shall survive the resignation or removal of any
trustee, the discharge of the obligations of LGII and Xxxxxx pursuant to
Article Eight and/or the termination of this Indenture.
7.09. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying LGII. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee
by so notifying LGII and the Trustee and may appoint a successor trustee with
LGII's prior written consent. LGII may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, LGII shall notify each Holder of such event
and shall promptly appoint a successor Trustee. The Trustee shall be entitled
to payment of its fees and reimbursement of its expenses while acting as
Trustee, and to the extent such amounts remain unpaid, the Trustee that has
resigned or has been removed shall retain the Lien afforded by Section 7.08.
Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the
- 54 -
outstanding Notes may, with LGII's prior written consent, appoint a successor
Trustee to replace the successor Trustee appointed by LGII.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to LGII. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.08, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, of LGII or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.11, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.09, the obligations of LGII and Xxxxxx under Section 7.08 shall continue for
the benefit of the retiring Trustee.
7.10. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall, if such resulting, surviving or transferee corporation or national
banking association is otherwise eligible hereunder, be the successor Trustee.
7.11. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5) and
which shall have a combined capital and surplus of at least $50,000,000. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
- 55 -
7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST LGII.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). If the present or any
future Trustee shall resign or be removed, it shall be subject to TIA Section
311(a) to the extent provided therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
8.01. TERMINATION OF THE OBLIGATIONS OF LGII AND XXXXXX.
Each of LGII and Xxxxxx may terminate its obligations under the
Notes and this Indenture, except those obligations referred to in the
penultimate paragraph of this Section 8.01, if all Notes previously
authenticated and delivered (other than destroyed, lost or stolen Notes which
have been replaced or paid or Notes for whose payment money has theretofore
been deposited with the Trustee or the Paying Agent in trust or segregated and
held in trust by LGII and thereafter repaid to LGII, as provided in Section
8.04) have been delivered to the Trustee for cancellation and Xxxxxx or LGII
has paid all sums payable by it hereunder, or if:
(a) pursuant to Article Three, LGII shall have been required to
repurchase the Notes;
(b) Xxxxxx or LGII shall have irrevocably deposited or caused
to be deposited with the Trustee or a trustee reasonably satisfactory to
the Trustee, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds in trust solely for
the benefit of the Holders for that purpose, money in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Notes to
maturity, as certified in a certificate of a nationally recognized firm of
independent public accountants; PROVIDED that the Trustee shall have been
irrevocably instructed to apply such money to the payment of said
principal, premium, if any, and interest with respect to the Notes;
(c) no Default or Event of Default with respect to this
Indenture or the Notes shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under,
any other instrument to which LGII or Xxxxxx is a party or by which it is
bound;
(d) LGII or Xxxxxx shall have paid all other sums payable by it
hereunder;
(e) LGII or Xxxxxx shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent
- 56 -
providing for the termination of LGII's and Xxxxxx'x obligation under
the Notes, the related Guarantee and this Indenture have been complied
with.
Notwithstanding the foregoing paragraph, LGII's obligations in Sections
2.05, 2.06, 2.07, 2.08, 4.01, 4.02 and 7.08 and Xxxxxx'x obligations in
respect thereof shall survive until the Notes are no longer outstanding
pursuant to Section 2.12. After the Notes are no longer outstanding, LGII
obligations in Sections 7.08, 8.03, 8.04 and 8.05 and Xxxxxx'x obligations in
respect thereof Guarantor or LGII, as the case may be, shall survive.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of LGII's and Xxxxxx'x obligations
under the Notes except for those surviving obligations specified above.
8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) Each of LGII and Xxxxxx may, at its option by Board Resolution
of the Board of Directors of Xxxxxx or LGII, as the case may be, at any time,
with respect to the Notes, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Notes upon compliance with the conditions
set forth in paragraph (d).
(b) Upon LGII's or Xxxxxx'x exercise under paragraph (a) of the
option applicable to this paragraph (b), LGII and Xxxxxx shall be deemed to
have been released and discharged from its obligations with respect to the
outstanding Notes of any series on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, such legal
defeasance means that LGII shall be deemed to have paid and discharged the
entire indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of paragraph
(e) below and the other Sections of and matters under this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under such Notes and this Indenture insofar as such Notes are concerned (and
the Trustee, at the expense of LGII, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in paragraph
(d) below and as more fully set forth in such paragraph, payments in respect
of the principal of, premium, if any, and interest on such Notes when such
payments are due, (ii) LGII's obligations with respect to such Notes under
Sections 2.06, 2.07 and 4.02, and, with respect to the Trustee, under Section
7.08 and Xxxxxx'x obligations in respect thereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Article
Eight. Subject to compliance with this Section 8.02, LGII may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) below with respect to the Notes.
(c) Upon the exercise by LGII and Xxxxxx under paragraph (a) of the
option applicable to this paragraph (c), each of LGII and Xxxxxx shall be
released and discharged from its obligations under any covenant contained in
Article Five and in Sections 4.07 through 4.17 with respect to the outstanding
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall thereafter be deemed
to be not "outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders
- 57 -
(and the consequences of any thereof) in connection with such covenants, but
shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
outstanding Notes, LGII and Xxxxxx may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01(c), but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) LGII shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.11 who shall agree to comply with the provisions of this
Section 8.02 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes, (x) cash, in
United States dollars, in an amount or (y) direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America
for the payment of which guarantee or obligation the full faith and credit
of the United States is pledged ("U.S. Government Obligations") maturing as
to principal, premium, if any, and interest in such amounts of cash, in
United States dollars, and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal of,
premium, if any, and interest on the outstanding Notes not later than one
day before the due date of any payment, or (z) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge principal of,
premium, if any, and interest on the outstanding Notes (except lost, stolen
or destroyed Notes which have been replaced or repaid) on the Maturity Date
thereof or otherwise in accordance with the terms of this Indenture and of
such Notes; PROVIDED, HOWEVER, that the Trustee (or other qualifying
trustee) shall have received an irrevocable written order from LGII
instructing the Trustee (or other qualifying trustee) to apply such money
or the proceeds of such U.S. Government Obligations to said payments with
respect to the Notes;
(2) no Default or Event of Default or event which with notice
or lapse of time or both would become a Default or an Event of Default with
respect to the Notes shall have occurred and be continuing on the date of
such deposit or, insofar as Section 6.01(a) is concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest with respect to any
securities of LGII or Xxxxxx;
- 58 -
(4) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other material agreement or instrument
to which LGII or Xxxxxx is a party or by which it is bound;
(5) in the case of an election under paragraph (b) above, LGII
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) LGII has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss
for Federal income tax purposes as a result of such legal defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such legal
defeasance had not occurred;
(6) in the case of an election under paragraph (c) above, LGII
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(7) in the case of an election under either paragraph (b) or
(c) above, an Opinion of Counsel to the effect that, (x) the trust funds
will not be subject to any rights of any other holders of Indebtedness of
LGII or Xxxxxx, and (y) after the 91st day following the deposit, the trust
funds will not be subject to the effect of any applicable Bankruptcy Law;
PROVIDED, HOWEVER, that if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of LGII or
Xxxxxx, no opinion needs to be given as to the effect of such laws on the
trust funds except the following: (A) assuming such trust funds remained
in the Trustee's possession prior to such court ruling to the extent not
paid to Holders of Notes, the Trustee will hold, for the benefit of the
Holders of Notes, a valid and enforceable security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, subject only to
principles of equitable subordination, (B) the Holders of Notes will be
entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used, and (C) no property, rights in property
or other interests granted to the Trustee or the Holders of Notes in
exchange for or with respect to any of such funds will be subject to any
prior rights of any other person, subject only to prior Liens granted under
Section 364 of Title 11 of the U.S. Bankruptcy Code (or any section of any
other Bankruptcy Law having the same effect), but still subject to the
foregoing clause (B); and
(8) LGII shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (x) all conditions
precedent provided for relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c) above,
as the case may be, have been complied with and (y) if any other
Indebtedness of LGII or Xxxxxx shall then be outstanding or committed, such
legal
- 59 -
defeasance or covenant defeasance will not violate the provisions of
the agreements or instruments evidencing such Indebtedness.
(e) All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above in respect of the outstanding Notes shall be held in trust
and applied by the Trustee, in accordance with the provisions of such Notes
and this Indenture, to the payment, either directly or through any Paying
Agent (other than LGII or any Affiliate of LGII) as the Trustee may determine,
to the Holders of such Notes of all sums due and to become due thereon in
respect of principal, premium and interest, but such money need not be
segregated from other funds except to the extent required by law.
LGII shall, and Xxxxxx shall cause LGII to pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to paragraph (d) above or
the principal, premium, if any, and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Notes.
Anything in this Section 8.02 to the contrary notwithstanding, the
Trustee shall deliver or pay to LGII from time to time upon the request, in
writing, by LGII any money or U.S. Government Obligations held by it as
provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
8.03. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.01 and 8.02, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Notes.
8.04. REPAYMENT TO LGII OR GUARANTOR.
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly
pay to LGII or if deposited with the Trustee by Xxxxxx, to Xxxxxx, upon receipt
by the Trustee of an Officers' Certificate, any excess money, determined in
accordance with Section 8.02, held by it at any time. The Trustee and the
Paying Agent shall pay to LGII or Xxxxxx, upon receipt by the Trustee or the
Paying Agent, as the case may be, of an Officers' Certificate, any money held by
it for the payment of principal, premium, if any, or interest that remains
unclaimed for two years after payment to the Holders is required; PROVIDED,
HOWEVER, that the Trustee and the Paying Agent before being required to make any
payment may, but need not, at the expense of LGII cause to be published once in
a newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and that
after a date specified therein, which shall be at least 30 days from the date of
such publication or mailing, any unclaimed balance of such money then remaining
will be repaid to LGII. After
- 60 -
payment to LGII or Xxxxxx, Holders entitled to money must look solely to LGII
and Xxxxxx for payment as general creditors unless an applicable abandoned
property law designates another person, and all liability of the Trustee or
Paying Agent with respect to such money shall thereupon cease.
8.05. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then and only then LGII's and Xxxxxx'x obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had been made pursuant to this Indenture until such time as the Trustee is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Indenture; PROVIDED, HOWEVER, that if LGII or Xxxxxx has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, LGII or Xxxxxx, as the case may be,
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
- 61 -
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.01. WITHOUT CONSENT OF HOLDERS.
LGII, when authorized by a Board Resolution of its Board of Directors,
and the Trustee may amend, waive or supplement this Indenture or the Notes
without notice to or consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article Five;
(c) to provide for uncertificated Notes in addition to
certificated Notes;
(d) to comply with any requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional benefit
or rights to the Holders or that does not adversely affect the rights of
any Holder.
Notwithstanding the above, the Trustee and LGII may not make any
change that adversely affects the rights of any Holders hereunder. LGII shall
be required to deliver to the Trustee an Opinion of Counsel stating that any
such change made pursuant to paragraph (a) or (e) of this Section 9.01 does not
adversely affect the rights of any Holder.
9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.04, LGII, when authorized by a Board Resolution
of its Board of Directors, and the Trustee may amend this Indenture or the Notes
with the written consent of the Holders of not less than a majority in aggregate
principal amount of each series of the Notes then outstanding, and the Holders
of not less than a majority in aggregate principal amount of the Notes then
outstanding by written notice to the Trustee may waive future compliance by LGII
or Xxxxxx with any provision of this Indenture, the Guarantee or the Notes.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(a) reduce the percentage in outstanding aggregate principal
amount of Notes the Holders of which must consent to an amendment,
supplement or waiver of any provision of this Indenture, the Guarantee or
the Notes;
(b) reduce or change the rate or time for payment of interest on
any Note;
- 62 -
(c) change the currency in which any Note, or any premium or
interest thereon, is payable;
(d) reduce the principal amount outstanding of or extend the
fixed maturity of any Note or alter the redemption provisions with respect
thereto;
(e) waive a default in the payment of the principal of, premium,
if any, or interest on, or redemption or an offer to purchase required
hereunder with respect to, any Note;
(f) make the principal of, premium, if any, or interest on any
Note payable in money other than that stated in the Note;
(g) modify this Section 9.02 or Section 6.04 or Section 6.07;
(h) amend, alter, change or modify the obligation of LGII to
make and consummate a Change of Control Offer in the event of a Change of
Control or make and consummate the offer with respect to any Asset Sale or
modify any of the provisions or definitions with respect thereto;
(i) modify or change any provision of this Indenture affecting
the subordination or ranking of the Notes or the Guarantee in a manner
adverse to the Holders;
(j) impair the right to institute suit for the enforcement of
any payment on or with respect to the Notes.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, LGII shall mail to the Holder of each Note affected thereby,
with a copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of LGII to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
amendment, supplement or waiver.
9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment of or supplement to this Indenture, the Guarantee of
the Notes shall comply with the TIA as then in effect.
9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of that Note or portion of that Note that evidences the same debt as the
consenting Holder's Note, even if
- 63 -
notation of the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to his Note or portion of a Note
prior to such amendment, supplement or waiver becoming effective. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. Notwithstanding the above, nothing in this paragraph shall impair
the right of any Holder under Section 316(b) of the TIA.
LGII may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the
second and third sentences of the immediately preceding paragraph, those persons
who were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such persons
continue to be Holders after such record date. Such consent shall be effective
only for actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder; unless it makes a change described in any of clauses (a)
through (j) of Section 9.02; if it makes such a change, the amendment,
supplement or waiver shall bind every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder's Note.
9.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee shall (in accordance with the specific direction of LGII) request the
Holder of the Note to deliver it to the Trustee. The Trustee shall (in
accordance with the specific direction of LGII) place an appropriate notation on
the Note about the changed terms and return it to the Holder. Alternatively, if
LGII or the Trustee so determines, LGII in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
9.06. TRUSTEE MAY SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver is authorized or permitted by this Indenture, that it is
not inconsistent herewith and that it will be valid and binding upon LGII in
accordance with its terms.
- 64 -
ARTICLE TEN
GUARANTEE OF NOTES
10.01. GUARANTEE.
Subject to the provisions of this Article Ten, Xxxxxx hereby
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of LGII to the Holders or the Trustee hereunder or thereunder,
that: (a) the principal of, premium, if any, and interest on the Notes
(including, if applicable, the Put Option Price) will be duly and punctually
paid in full when due, whether at maturity, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted by law)
interest, if any, on the Notes and all other obligations of LGII to the
Holders or the Trustee hereunder or thereunder (including fees, expenses or
other) will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of time of payment
or renewal of any Notes, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed, or failing performance of any other obligation of
LGII to the Holders, for whatever reason, Xxxxxx will be obligated to pay, or
to perform or cause the performance of, the same immediately. An Event of
Default under this Indenture or the Notes shall constitute an event of default
under this Guarantee, and shall entitle the Holders of Notes to accelerate the
obligations of Xxxxxx hereunder in the same manner and to the same extent as
the obligations of LGII.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against LGII, any action to
enforce the same, whether or not a Guarantee is affixed to any particular Note,
or any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of LGII, any right to require a proceeding
first against LGII, protest, notice and all demands whatsoever and covenants
that its Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to LGII,
or any custodian, trustee, liquidator or other similar official acting in
relation to LGII, any amount paid by LGII to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject
to this Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Six
hereof, such obligations (whether or
- 65 -
not due and payable) shall forthwith become due and payable by Xxxxxx for the
purpose of this Guarantee.
This Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against LGII for liquidation or
reorganization, should LGII become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of LGII's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Notes, whether as a "voidable preference," "fraudulent transfer"
or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, Notes shall, to the fullest extent permitted by law, be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
No stockholder, officer, director, employer or incorporation, past,
present or future, as such, shall have any personal liability under this
Guarantee by reason of his, her or its status as such stockholder, officer,
director, employer or incorporation.
The Guarantee constitutes a guarantee of payment and ranks PARI PASSU
in right of payment to all unsecured senior indebtedness of Xxxxxx.
10.02. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 10.01, Xxxxxx
hereby agrees that a notation on the Guarantee, substantially in the form
included in Exhibit C hereto, shall be endorsed on each Note authenticated and
delivered by the Trustee after the Guarantee is executed by either manual or
facsimile signature of Officers of Xxxxxx. The validity and enforceability of
the Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
The Guarantor hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of the Guarantee.
If an Officer of Xxxxxx whose signatures is on this Indenture or a
Note no longer holds that office at the time the Trustee authenticates the Note
or at any time thereafter, Xxxxxx'x Guarantee of such Note shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of Xxxxxx.
10.03. INTEREST ACT (CANADA).
If and to the extent that the laws of Canada are applicable to any
amounts payable by Xxxxxx under this Indenture that are characterized as
interest by any applicable authority, for
- 00 -
xxxxxxxx xx xxxxxxxxxx xxxxx xxx Xxxxxxxx Xxx (Xxxxxx), the yearly rate of
interest for any period less than one year to which interest at a stated rate
computed on the basis of a year of 360 days consisting of twelve 30-day months
is equivalent is the stated rate multiplied by a fraction of which (a) the
numerator is the product of (i) the actual number of days in the calendar year
in which the first day of the relevant period falls and (ii) the sum of (A)
the product of (x) 30 and (y) the number of complete months elapsed in the
relevant period and (B) the actual number of days elapsed in any incomplete
month in the relevant period, and (b) the denominator is the product of (i)
360 and (ii) the actual number of days in the relevant period.
ARTICLE ELEVEN
MISCELLANEOUS
11.01. TRUST INDENTURE ACT OF 1939.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
11.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
addressed as follows:
If to LGII to:
Xxxxxx Group International, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
If to Xxxxxx to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
If to the Trustee to:
State Street Bank and Trust Company
000 Xxxx Xxxxxx, 00xx Xxxxx
- 00 -
Xxxxxxxx, XX 00000
Attention: Corporate Trust Administration
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a Holder,
including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed by
first class mail to such Holder at the address of such Holder as it appears on
the Notes register maintained by the Registrar and shall be sufficiently given
to such Holder if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
obligors, the Trustee, the Registrar and any other person shall have the
protection of TIA Section 312(c).
11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by LGII or Xxxxxx to the Trustee to
take any action under this Indenture, such obligor shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinions contained
in such certificate or opinion are based;
- 68 -
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
11.07. GOVERNING LAW.
The laws of the State of New York shall govern this Indenture, the
Guarantees and the Notes without regard to principles of conflicts of law. The
Trustee, LGII, Xxxxxx and the Holders agree to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising out of or
relating to this Indenture, the Guarantee or the Notes.
11.08. CONSENT TO SERVICE OF PROCESS.
Each of LGII and Xxxxxx irrevocably (a) agrees that any legal suit,
action or proceeding arising out of or based upon this Indenture and the Notes
issued hereunder may be instituted in any federal or state court located in the
City of New York, (b) waives, to the fullest extent it may effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such proceeding, and (c) submits to the nonexclusive jurisdiction of such courts
in any such suit, action or proceeding. Each of LGII and Xxxxxx has appointed
Thelen, Marrin, Xxxxxxx & Xxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxxxx, Esq., as its authorized agent (the
"Authorized Agent") upon whom process may be served in any suit, action or
proceeding arising out of or based on this Indenture which may be instituted in
any federal or state court located in The City of New York, expressly consents
to the jurisdiction of any such court in respect of any suit, action or
proceeding, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. Each
of LGII and Xxxxxx agrees to take any and all action, including the filing of
any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to LGII and Xxxxxx shall be
deemed, in every respect, effective service of process upon LGII and Xxxxxx.
Notwithstanding the foregoing, designation of an authorized agent does not
constitute submission to jurisdiction or consent to service or process in any
legal action or proceeding predicated on United States federal or state
securities laws.
- 69 -
11.09. NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of LGII, Xxxxxx or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or Affiliate, as such, of
LGII or Xxxxxx shall not have any liability for any obligations of LGII under
the Notes or this Indenture or for any obligations of Xxxxxx under the Guarantee
or for any claim based on, in respect of or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability.
11.11. SUCCESSORS.
All agreements of each of LGII and Xxxxxx in this Indenture and the
Notes and the Guarantee shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all such executed copies together
represent the same agreement.
11.13. SEPARABILITY.
In case any provision in this Indenture, the Guarantee or the Notes
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, and a Holder shall have no claim therefor against any party
hereto.
11.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
11.15. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any person, other than the parties hereto and their successors
hereunder, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
- 70 -
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:__________________________________
Title:
THE XXXXXX GROUP INC.
By:___________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:__________________________________
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:___________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:__________________________________
Title:
- 71 -
